Campbell et al v. CR England et al
Filing
142
MEMORANDUM DECISION and Order-granting 139 Motion for Settlement; granting 139 Motion for Attorney Fees. See Order for details. Signed by Judge Clark Waddoups on 9/30/15. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KOFI CAMPBELL, et al.
Plaintiffs,
MEMORANDUM DECISION
AND ORDER
v.
C.R. ENGLAND, INC. d/b/a ENGLAND
CARRIER SERVICES, et al.
Case No. 2:13-cv-00262
Judge Clark Waddoups
Defendants.
This case comes before the court on Plaintiffs’ unopposed motion for approval of a
collective action settlement and for related relief. (Dkt. No. 139). For the reasons stated below,
the court GRANTS the motion.
I.
BACKGROUND
This is a certified collective action filed pursuant to the Fair Labor Standards Act
(FLSA), in which Plaintiffs seek to recover minimum wage payments owed to a class of overthe-road truck drivers who worked for Defendant C.R. England, Inc. as company drivers.
Plaintiffs filed this action in April of 2013, and promptly sought conditional certification a few
months later. The court granted the motion in September 2013 and ordered that notice of the
collective action be sent to all individuals who had been employed by C.R. England as over-theroad drivers in the three years preceding the filing of the motion. The opt-in period was extended
after Plaintiffs filed a motion requesting to send a reminder postcard and to extend the opt-in
period end date. Ultimately, over 10,000 individuals filed consent forms to join the case (Opt-in
Plaintiffs).
1
Earlier this year, Plaintiffs amended their lawsuit to seek damages for a subset of drivers
under California law, and then filed for Rule 23 class certification on such claims. In response,
C.R. England filed a motion to dismiss the California claims with prejudice, arguing that
Plaintiffs should not be permitted to proceed in light of the proceedings and pending settlement
in a case before the United States District Court for the Central District of California, Jasper v.
C.R. England, 2:08-cv-05266-GW-CW (C.D. Cal.), in which 2,000 Opt-in Plaintiffs in this case
are certified class members.1 This court granted C.R. England’s motion and denied the Rule 23
class certification motion as moot. Thus, the only certified claims are the FLSA claims, and,
accordingly, the only claims permitted to be litigated on a class-wide basis. The settlement class
in this matter is therefore limited to the approximately 10,000 Opt-in Plaintiffs who filed consent
forms to join the FLSA collective action.
Following significant discovery, motion practice, and litigation efforts, the parties
attended a private mediation before Kathryn Miller in March 2015. The mediation lasted about
ten hours, and did not result in a settlement. However, the parties continued their discussions
with the mediator’s assistance, and ultimately reached a settlement approximately one week
later.
The proposed Settlement Agreement creates a five million dollar ($5,000,000) Settlement
Fund. Opt-in Plaintiffs will receive $150 plus an additional amount pro-rated based on the length
of their employment. In addition, the proposed Settlement Agreement provides for attorneys fees
of approximately 33.3% of the Settlement Fund, as well as costs not to exceed $100,000. It also
provides for payment from the Settlement Fund to the Claims Administrator, and for incentive
awards in the amounts of $7,500 to be paid from the Settlement Fund to each of the Named
1
Ultimately, the parties in the Jasper case reached a settlement. An appeal of the approval of that
settlement agreement is currently pending before the Ninth Circuit.
2
Plaintiffs.2 In addition, the Settlement Agreement specifically contemplates that Opt-in Plaintiffs
who are also class members in the Jasper case will collect payment under the terms of both the
instant Settlement Agreement as well as the settlement negotiated in the Jasper case. In
recognition that the Jasper settlement contains a release of claims provision, the Settlement
Agreement provides that Jasper class members will receive the full benefit of the Jasper
settlement as well as compensation in the amount of one-third of the amount they would expect
to receive in this case. In exchange for receiving compensation under both settlements, the
Jasper class members agree to dismiss the pending appeal with prejudice. Finally, the Settlement
Agreement provides that all Named and Opt-in Plaintiffs waive all claims that were litigated or
that could have been litigated in this matter, including FLSA minimum wage claims and
analogous state law claims. (Dkt. No. 128-1).
In light of the proposed settlement, the court determined that the appropriate course of
action was to engage in a two-step settlement approval process to protect the rights of the Opt-in
Plaintiffs, who otherwise may not be provided an opportunity to be heard, and provide the court
additional assurances that the settlement is fair and reasonable. Accordingly, the court engaged
in a preliminary review of the Settlement Agreement and approved it pending a final fairness
hearing. See, e.g., Forauer v. Vt. Country Store, Inc., No. 5:12-CV-276, 2015 WL 225224, at *1
(D. Vt. Jan. 16, 2015) (approving settlement after notice to opt in plaintiffs and final fairness
hearing); Hosier v. Mattress Firm, Inc., No. 3:10-CV-294-J-32JRK, 2012 WL 2813960, at *2
(M.D. Fla. June 8, 2012), report and recommendation adopted, No. 3:10-CV-294-J-32JRK, 2012
WL 2838610 (M.D. Fla. July 10, 2012) (same). The court also ordered that notice of the
settlement be sent to all Plaintiffs. The notice explained the terms of the Settlement Agreement,
2
The Named Plaintiffs are Kofi Campbell, Billy Brooks, Howard Brooks, Charlie Smiley III, Eric Diggins,
Michael Atkins, and Caleb Johnson.
3
including the release of claims provision. The notice provided Plaintiffs forty-five days to mail
any objections, and informed them they could attend the final fairness hearing, which was
scheduled for September 18, 2015.
On September 18, 2015, the court held the final fairness hearing regarding the settlement
and related relief. Attorney Justin Swidler, of Swartz Swidler, LLC, appeared for Plaintiffs.
Attorney Scott Hagen, of Ray Quinney & Nebeker P.C., appeared for C.R. England. No Opt-in
Plaintiffs appeared at the hearing or filed any objections to the settlement or requested relief.
II.
ANALYSIS
The parties have asked the court to approve the Settlement Agreement, award Plaintiffs’
counsel attorneys fees and costs from the Settlement Fund, to permit payment from the fund to
the Claims Administrator, and to pay from the fund an incentive award of $7,500 to each Named
Plaintiff. The court addresses each request in turn.
A. Approval of the Settlement Agreement
Collective action settlements under the FLSA must be approved by the district court. See,
e.g., Robles v. Brake Masters Sys., Inc., No. CIV 10-0135 JB/WPL, 2011 WL 9717448, at *18
(D. N.M. Jan. 31, 2011) (citing Lynn’s Food Stores v. United States, 679 F.2d 1350, 1354 (11th
Cir. 1982)). In determining whether approval is appropriate, courts consider whether the
settlement “is a fair and reasonable resolution of a bona fide dispute over FLSA provisions.” Id.
(quoting Lynn’s Food Stores, 679 F.2d at 1355).
1. There exists a bona fide dispute.
To approve a settlement under the FLSA, a court must first determine that a bona fide
dispute exists under the FLSA. Lynn’s Food Stores, 679 F.2d at 1354. The FLSA requires all
employers covered by the Act to pay employees, with certain exceptions, a minimum wage for
4
each hour worked. 29 U.S.C. § 206. “‘Work’ is not defined in the FLSA, but an employee
generally must be paid for his time that is controlled and required by the employer regardless of
whether it involves any mental or physical exertion.” Fowler v. Incor, 279 F. App’x 590, 597
(10th Cir. 2008). During the period for which Plaintiffs seek compensation, that minimum wage
has been set at $7.25 per hour. In this case, after an initial training period, C.R. England pays its
drivers on a mileage rate where drivers receive a set pay for each mile driven, as well as
compensation for various other tasks. When calculating damages for minimum wages under the
FLSA, most courts follow the so-called Klinghoffer rule, meaning that an employer does not
violate the federal minimum wage unless, when wages are averaged over an entire workweek,
the average wage is less than the federal minimum. See, e.g., United States v. Klinghoffer Bros.
Realty Corp., 285 F.2d 487, 494 (2d Cir. 1960); Taylor v. McLane Foodservice, Inc., No. 122697-JWL, 2013 WL 943531, at *3 (D. Kan. Mar. 11, 2013) (collecting cases applying the
Klinghoffer rule). But see Norceide v. Cambridge Health All., 814 F. Supp. 2d 17 (D. Mass.
2011) (declining to apply Klinghoffer to minimum wage claims and finding that minimum wage
should be computed on an hourly basis).
In the instant case, Plaintiffs contend they are owed compensation for various activities,
which they contend constitute “work” under the FLSA, but for which they were not paid under
C.R. England’s compensation structure. C.R. England disputes that the activities Plaintiffs
contend are compensable (with the exception of Department of Transportation “on duty” time)
constitute work, and further asserts that the wages it paid Plaintiffs fully complied with the
minimum wage requirements of the FLSA.3
3
There is no dispute that Plaintiffs are exempt from the overtime provisions of the FLSA pursuant to the
Motor Carrier Act. However, the Motor Carrier Act does not exempt Plaintiffs from the minimum wage protections
of the FLSA, and it is the minimum wage provisions that Plaintiffs contend C.R. England violated.
5
For example, Plaintiffs contend they should be paid for participating in a multiday
classroom orientation prior to the start of their over-the-road training period. Specifically,
Plaintiffs claim they spent about twenty-five hours in the classroom and received no
compensation for the orientation. According to Plaintiffs, C.R. England should have paid them
minimum wage for the time they spent in orientation. If all the time in orientation were held
compensable work time, Plaintiffs contend that they would be owed collectively $1.7 million. In
contrast, C.R. England contends that the orientation occurred prior to hiring Plaintiffs, and thus
no compensation was necessary for such time.
Likewise, Plaintiffs argue they should have been paid for short rest breaks (of twenty
minutes and less in duration) and for sleeping periods in excess of 8-hours per day that occurred
while they were over-the-road. In support of this position, Plaintiffs cite to Department of Labor
regulations and two recent out-of-circuit federal district court decisions. See 29 C.F.R.
§§ 785.18, 785.22; Petrone v. Werner Enters., Inc., No. 8:11CV401, 2015 WL 4629177 (D. Neb.
Aug. 3, 2015), motion to certify appeal granted, No. 8:11CV401, 2015 WL 5156869 (D. Neb.
Aug. 25, 2015) (opinion granting summary judgment for plaintiffs as to liability); Punter v.
Jasmin Int’l Corp., No. CIV.A. 12-7828 SRC, 2014 WL 4854446, at *6 (D.N.J. Sept. 30, 2014)
(opinion granting default judgment to plaintiffs as to liability and damages on FLSA claim).
Plaintiffs contend that if they won on these claims, Plaintiffs would be owed about $10 million in
lost wages.
But C.R. England contends such time is not compensable and that the Department of
Transportation’s regulations determine which time constitutes work for over-the-road truck
drivers. C.R. England points out that the District Court in Petrone granted a motion for
interlocutory review of its summary judgment decision, and that Punter was a default judgment
6
case. It further argues that Nance v. May Trucking Co., No. 3:12-CV-01655-HZ, 2014 WL
199136 (D. Or. Jan. 15, 2014), appeal pending, 14-35640 (9th Cir. July 30, 2014), which held
that sleeper berth time where individuals were on duty for less than 24 hours was not
compensable work time, supports its position that such time is not compensable under the FLSA.
Further, C.R. England contends that even if the sleeper berth time at issue in the action were
compensable, Plaintiffs’ calculation of total damages is overstated. C.R. England therefore
disputes it would owe Plaintiffs $10 million.
Finally, Plaintiffs contend that whether they were paid a mileage rate or salary,
C.R. England’s pay practices regularly failed to pay minimum wage, when averaged out over an
entire workweek. See Klinghoffer, 285 F.2d at 494. To prove the amount of time they worked,
Plaintiffs have relied on their driver logs, which were maintained consistent with Department of
Transportation regulations. Consistent with these regulations, Plaintiffs recorded their time in
one of four statuses, “off duty,” “sleeper berth,” “driving,” and “on-duty not driving.” Plaintiffs
contend that that all “driving” and “on-duty not driving” time constitutes work, and further
contend that “off duty” and “sleeper berth” time constitutes work in certain conditions. Both
parties hired experts to calculate alleged minimum wages due. According to Plaintiffs,
C.R. England failed to pay $1.4 million in minimum wages to the class for “driving” and “onduty not driving” time during the relevant period. C.R. England disputes the same, and contends
Plaintiffs have over-calculated this amount because Plaintiffs did not properly credit
C.R. England with all payments made for such time. Additionally, C.R. England notes that it
voluntarily paid about $500,000 to some, but not all, class members during the litigation to make
up for any potential shortfall in minimum wage due based on “driving” and “on-duty not
driving” time. While Plaintiffs do not agree that such amount was sufficient to make up for the
7
claimed shortfall, Plaintiffs do not dispute that it is proper to credit such amount to any damages
owed, and this Court agrees. Thus, under this claim, it appears the maximum potential exposure
is about $900,000.
As illustrated by the discussion above, bona fide disputes exist as to the Plaintiffs’ claims
and potential damages in this case. With respect to the compensability of classroom orientation,
it is debatable whether this time should be considered “work” under the FLSA. Compare Fowler,
279 F. App’x. at 599 (holding that training required by the employer is work and must be paid),
with Donovan v. Am. Airlines, Inc., 686 F.2d 267, 271–72 (5th Cir. 1982) (holding that trainees
were not employees when they participated in a multi-week training program which was similar
to programs run at vocational schools and where trainees were not guaranteed a job). Likewise,
with respect to compensation for breaks and sleeping periods, the court notes the lack of clear
precedent as to who would prevail in this matter if it continued through litigation. For instance,
there appears to be no consensus in the district courts and parties have not presented—nor is the
court aware of—any decision from any federal appellate court with respect to the compensability
of sleeper berth time. For all these reasons, the court is satisfied that the issues in this case
present a bona fide dispute regarding whether C.R. England’s practices violated the FLSA, and if
so, the extent of damages Plaintiffs could have received if they prevailed.
2. The Settlement Agreement is fair and reasonable.
The court also finds that the Settlement Agreement is fair and reasonable. In assessing
whether a proposed settlement is fair and reasonable, the court must consider four nonexhaustive factors: “(1) the settlement was fairly and honestly negotiated, (2) serious legal and
factual questions placed the litigation’s outcome in doubt, (3) the immediate recovery was more
valuable than the mere possibility of a more favorable outcome after further litigation, and
(4) [the parties] believed the settlement was fair and reasonable.” Tennille v. W. Union Co., 785
8
F.3d 422, 434 (10th Cir. 2015) (alterations in original). Consideration of these four factors
demonstrates that the Settlement Agreement is fair and reasonable.
To begin, the Settlement Agreement was fairly and honestly negotiated. It was entered
into “after an investigation of the claims and defenses,” see Lizondro-Garcia v. Kefi LLC, 300
F.R.D. 169, 180 (S.D.N.Y. 2014), and after the parties engaged in “extensive discovery and
damages calculations,” see Forauer v. Vt. Country Store, Inc., No. 5:12-CV-276, 2015 WL
225224, at *6 (D. Vt. Jan. 16, 2015) (approving settlement that was negotiated at arm’s length
after extensive discovery and damages calculations). Moreover, the Settlement Agreement is
“the product of negotiation between represented parties” during private mediation, which
supports a finding that it “did not come about because of ‘overreaching’ by the employer.”
Lliguichuzhca v. Cinema 60, 948 F. Supp. 2d 362, 365–66 (S.D.N.Y. June 5, 2013) (“Arm’s
length bargaining between represented parties weighs in favor of finding a settlement
reasonable.”); accord Hernandez v. Tabak, No. 12 Civ. 1402(PKC), 2013 WL 1562803, at *1
(S.D.N.Y. Apr. 10, 2013) (concluding settlement “negotiated at arm’s length [was] not the
product of coercion”). And there is no evidence to suggest that the settlement here is the product
of collusion. Rather, the evidence shows that both parties zealously litigated this case for nearly
two years, and the settlement is a result of a fair and difficult negotiation.
Likewise, as explained, numerous unresolved legal and factual disputes create a
substantial risk to both sides if this litigation continued through trial or dispositive motion
practice. It is highly likely a lengthy appeals process would follow any disposition by way of
trial or dispositive motion practice, a likelihood that makes a settlement, which provides that
Plaintiffs will be paid swiftly, even more fair. The substantial risks to both parties in continuing
9
to litigate the case additionally make resolution through settlement more valuable than the mere
possibility of a more favorable outcome after further litigation.
Finally, the parties believe the Settlement Agreement is fair and reasonable. Competent
and informed legal counsel for the parties, who are well versed on the facts and law of this
matter, believe the settlement to be fair and reasonable. Importantly, not a single Opt-in Plaintiff,
of more than 10,000, has objected to any part of the Settlement Agreement. Such a positive
response further supports the finding that the settlement proposed is fair and reasonable.
Accordingly, the court finds that this is a fair and reasonable settlement of a bona fide dispute
under the FLSA.
B. Attorneys Fees and Costs
Plaintiffs have also asked the court to authorize the payment from the Settlement Fund of
attorneys fees in the amount of $1,666,666 (33.3% of the Settlement Fund), as well as costs
incurred in litigation in the amount of $87,567.81. This request is well taken.
In suits where a fund is recovered and fees are awarded therefrom by the court, the
United States Supreme Court has indicated that the correct approach is to compute fees as a
percentage of the common fund recovered. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478–79
(1980) (approving fees paid out of a common fund for the benefit of the class); Blum v. Stenson,
465 U.S. 886, 900 n.16 (1984). The Tenth Circuit also recognizes the propriety of the
percentage-of-the fund method when awarding fees. See Gottlieb v. Barry, 43 F.3d 474, 484
(10th Cir. 1994); see also Peterson v. Mortg. Sources, Corp., No. CIV.A. 08-2660-KHV, 2011
WL 3793963, at *12 (D. Kan. Aug. 25, 2011) (“This Court has also typically applied
the percentage of the fund method when awarding fees in common fund, FLSA collective
10
actions.”). Ultimately, “the percentage reflected in a common fund award must be reasonable.”
Brown v. Phillips Petrol. Co., 838 F.2d 451, 454 (10th Cir. 1988).
In assessing reasonableness, the Tenth Circuit has instructed courts to consider the
following factors: (1) time and labor required; (2) novelty and difficulty of question presented by
the case; (3) skill requisite to perform the legal service properly; (4) preclusion of other
employment by the attorneys due to acceptance of the case; (5) customary fee; (6) whether the
fee is fixed or contingent; (7) any time limitations imposed by the client or circumstances;
(8) amount involved and results obtained; (9) experience, reputation and ability of the attorneys;
(10) “undesirability” of the case; (11) nature and length of the professional relationship with the
client; and (12) awards in similar cases. See Gottlieb, 43 F.3d at 483 (citing Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)); see also Uselton v. Commercial
Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir. 1993) (recognizing the court need not
consider every single Johnson factor). The court can also look to the number of objectors to the
settlement and attorneys fee request in assessing reasonableness. See, e.g., Droegemueller v.
Petrol. Dev. Corp., No. CIV.A.07-CV-2508, 2009 WL 961539, at *4 (D. Colo. Apr. 7, 2009).
Considering the attorneys fees request in this case in light of these factors, the court finds
the requested fee is reasonable. Plaintiffs’ counsel litigated this matter for more than two years
with competence, diligence, and professionalism. The court has reviewed the time reports
submitted by Plaintiffs’ counsel, which reflect that counsel has spent over 1,200 hours litigating
the case. The court is satisfied that this time spent was reasonable and necessary to represent
Plaintiffs in this matter. For example, Plaintiffs’ counsel filed numerous motions and engaged in
significant adversarial discovery prior to the settlement. The court also notes the significant risk
to Plaintiffs’ counsel in taking this case. Plaintiffs’ counsel took this matter on a pure
11
contingency basis and therefore took substantial risk in receiving no payment for their time in
light of the many unresolved legal issues at issue in the case. Moreover, Plaintiffs’ counsel’s
involvement in this case impaired its ability to accept work on other cases.
The court further notes that Plaintiffs’ counsel has significant experience in litigating
wage and hour cases. Justin Swidler and Richard Swartz report to have litigated more than sixty
putative collective action FLSA matters in the last five years, including a significant number of
cases against trucking companies. Plaintiffs’ counsel currently represents more than 100,000
workers in certified wage and hour cases. Plaintiffs’ counsel has been approved by other courts
as class counsel in wage and hour collective actions. Additionally, the court notes that Plaintiffs’
counsel has a reputation in the trucking industry as being one of the prominent firms to engage in
FLSA litigation on behalf of truck drivers.4 And ultimately, Plaintiffs’ counsel was successful in
obtaining a substantial settlement on behalf of Plaintiffs.
Moreover, the court finds the 33.3% fee represents a customary contingency fee and is
consistent with awards provided in similar cases. See e.g., Uselton, 9 F.3d at 854 (approving fee
award of 29% percent of the common fund); Owner-Operator Indep. Drivers Ass’n, Inc. v. C.R.
England, Inc., No. 2:02 CV 950, 2014 WL 3943994, at *2 (D. Utah June 19, 2014) (approving a
fee award that represented 33.3% of a settlement fund); Lucken Family Ltd. P’ship, LLP v. Ultra
Resources, Inc., 2010 WL 5387559, *5–6 (D. Colo. Dec. 22, 2010) (“The customary fee award
to class counsel in a common fund settlement is approximately one third of the total economic
benefit bestowed on the class.”); In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72,
101 (D.N.J. 2001) (collecting cases approving fee requests of between 27.5% and 33.8% of the
4
Plaintiffs’ counsel was the subject of a recent article published in Transport Topics, which discussed six
separate FLSA minimum wage lawsuits filed by Plaintiffs’ counsel, all of which have been certified as collective
actions. See Gilroy, Roger, Drivers, Fleets Embroiled in Lawsuits over Wages, Transport Topics (Sept. 7, 2015),
http://www.ttnews.com/articles/petemplate.aspx?storyid=39369.
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common fund, and ranging from $1.46 to $37.1 million). Finally, the court notes that the Opt-in
Plaintiffs agreed to this amount when they opted into the litigation in 2013 and there have been
no objections to the attorneys fee request. Thus, all these factors support awarding Plaintiffs’
counsel $1,666,666 in attorneys fees, approximately 33.3% of the Settlement Fund.5
Likewise, the court finds that Plaintiffs’ counsel is entitled to be reimbursed for out-ofpocket litigation costs in the amount of $87,567.81. See Tuten v. United Airlines, Inc.,
41 F. Supp. 3d 1003, 1009 (D. Colo. 2014) (“[A]n attorney who creates or preserves a common
fund for the benefit of the class is entitled to receive reimbursement of all reasonable costs
incurred.” (internal quotation marks omitted)). The court has reviewed the declaration Plaintiffs’
counsel submitted in support of this request and has determined the costs incurred in litigating
this matter were reasonable and benefitted Plaintiffs. Furthermore, the court finds it relevant that
the class notice informed Opt-in Plaintiffs that Plaintiffs’ counsel would seek recovery of its outof-pocket litigation costs, not to exceed $100,000, and there were no objections to this amount.
Finally, the court notes that when combined together, the total attorneys fees and costs requested
represent approximately 35% of the Settlement Fund as a whole. This aggregated amount is
within a reasonable range. See, e.g., Whittington v. Taco Bell of Am., Inc., No. 10-CV-01884KMT-MEH, 2013 WL 6022972, at *6 (D. Colo. Nov. 13, 2013) (approving a request for fees
and costs in an FLSA class action settlement where combined the fees and costs amounted to
5
Although the common fund approach is the preferred method for assessing the reasonableness of fees in
this context, see Rosenbaum v. MacAllister, 64 F.3d 1439, 1445 (10th Cir. 1995) (stating that there is a “preference
for the percentage of the fund method” over a lodestar calculation), the court notes that the fee award is also
reasonable under the lodestar crosscheck. See Vizcanio v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002)
(recognizing that the lodestar crosscheck may provide a useful perspective on the reasonableness of a given
percentage award, and approving an award that resulted in a lodestar multiplier of 3.65). Applying the lodestar
crosscheck calculation here results in multiplier of 2.9, which is within a reasonable range. See, e.g., Mishkin v.
Zynex, Inc., No. 09-cv-00780-REB-KLM, 2012 WL 4069295, at *2 (D. Colo. Sep. 14, 2012) (collecting cases from
district courts in the Tenth Circuit approving multipliers ranging from 2.5 to 4.6).
13
approximately 39% of the settlement fund). For these reasons, the court grants Plaintiffs’ request
for attorneys fees and reimbursement for costs incurred in litigation.
C. Payments to the Claims Administrator and Named Plaintiffs
Finally, Plaintiffs ask the court to approve payments out of the Settlement Fund to the
Claims Administrator in the amount of approximately $60,000, and to the seven Named
Plaintiffs in the amount of $7,500 each. The court finds both requests to be reasonable.
The Settlement Agreement provides that the costs of administering the settlement will be
paid from the Settlement Fund. Where a settlement agreement calls for the costs of
administration to be borne by the settlement fund, the court should approve same. See, e.g., In re
High-Tech Emp. Antitrust Litig., No. 11-CV-2509-LHK, 2013 WL 6328811, at *5 (N.D. Cal.
Oct. 30, 2013) (permitting all costs incurred in disseminating notice and administering the
settlement to shall be paid from the settlement fund, pursuant to the terms of a settlement
agreement”). Here, Plaintiffs’ counsel informs the court the Claims Administrator’s costs are
estimated to be about $60,000, which the court finds to be reasonable in light of the number of
plaintiffs involved and the amount of money to be distributed. See, e.g., Whittington, 2013 WL
6022972, at *6 (approving administrative fees in the amount of $85,000.00).
In addition, the Named Plaintiffs are entitled to an incentive award. “A class
representative may be entitled to an award for personal risk incurred or additional effort and
expertise provided for the benefit of the class.” UFCW Local 880–Retail Food Emp’rs Joint
Pension Fund v. Newmont Mining Corp., 352 F. App’x. 232, 235–36 (10th Cir. 2009). In this
case, the Named Plaintiffs regularly conferred with Plaintiffs’ counsel to discuss the case and
spent a significant amount of time discussing their experiences and providing necessary
information. Further, the Named Plaintiffs provided and reviewed many of the documents
14
produced. Plaintiffs’ counsel also represents that the Named Plaintiffs took considerable risk in
bringing the litigation. In these circumstances, the court is persuaded that an award of $7,500 to
the seven Named Plaintiffs, which represents $52,000 in the aggregate, is fair and reasonable.
See, e.g., Owner-Operator Indep. Drivers, 2014 WL 3943994, at *2 (approving incentive award
in the amount of $15,000 to each named plaintiff).
III.
CONCLUSION
Based on the above, the court orders as follows:
1. The FLSA Collective Action Settlement, filed with this Court at ECF Doc. No. 128-1,
is granted FINAL APPROVAL. All Named and all Opt-In Plaintiffs are subject to the
release of claims therein;
2. Defendants, pursuant to the Settlement Agreement, are ordered to wire the entire
Settlement Fund of $5,000,000 (Five Million Dollars) to the Claims Administrator no
later than forty-five days from the final fairness hearing;
3. The Claims Administrator shall distribute the Settlement Fund to all Named
Plaintiffs, and Opt-in Plaintiffs, consistent with the terms of the Settlement
Agreement;
4. Class Counsel are awarded reasonable attorney’s fees in the amount of $1,666,666,
totaling approximately 33.3% of the Settlement Fund, and are granted reimbursement
of their out-of-pocket litigation costs totaling $87,567.81;
5. The Claims Administrator shall be entitled to its reasonable fees and costs incurred in
administering the settlement, which shall be paid from the Settlement Fund; and
6. This matter is dismissed with prejudice without costs or fees to either side, except as
provided in the Settlement Agreement and this Order.
SO ORDERED this 30th day of September, 2015.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge
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