Baber et al v. County of Frederick, Virginia et al

Filing 75

ORDER granting 66 Motion for Settlement; and adopting Report and Recommendations re 71 . This case is dismissed with prejudice and stricken from the active docket of this court.. Signed by District Judge Michael F. Urbanski on 7/19/13. (mka)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

SCOTT BABER, et al.,
Plaintiffs,
v.
COUNTY OF FREDERICK,
VIRGINIA, et al.,

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Civil Action No.: 5:12cv037

By: Hon. Michael F. Urbanski
United States District Judge

Defendants.
ORDER
This matter is before the court on the Joint Motion to Approve the Settlement Agreement.
(Dkt. No. 66.) On May 17, 2013, the Joint Motion to Approve the Settlement was referred to the
United States Magistrate Judge, Robert S. Ballou, pursuant to 28 U.S.C. § 636(b)(1)(B), for
proposed findings of fact and a recommended disposition. On June 20, 2013, a hearing was held
before Magistrate Judge Ballou, and the report was issued on June 21, 2013. (Dkt. No. 71.) No
objections to the report have been filed.
The report indicates that the parties have agreed to settle this matter, which included a
claim under Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Prior to approving the
settlement of an FLSA claim, the court must “determine[ ] that a settlement proposed by an
employer and employees . . . is a fair and reasonable resolution of a bona fide dispute over
FLSA provisions.” Lynn’s Food Stores, Inc. v. United States, 679 F. 2d 1350, 1355 (11th Cir.
1982). “In assessing whether a proposed settlement is reasonable, adequate, and fair, the court
should consider the following factors: (1) the extent of discovery that has taken place; (2) the
stage of the proceedings, including the complexity, expense and likely duration of the litigation;

(3) the absence of fraud or collusion in the settlement; (4) the experience of counsel who have
represented the plaintiffs; and finally, the probability of plaintiffs’ success on the merits and the
amount of the settlement in relation to the potential recovery.” Poulin v. Gen. Dynamics Shared
Resources, Inc., No. 3:09-cv-00058, 2010 WL 1813497, at *1 (W.D. Va. May 5, 2010) (internal
citations omitted). Upon review of the report and recommendation, the court concludes that this
settlement reflects a reasonable compromise of a bona fide dispute over the applicability of
certain FLSA provisions. To be sure, the parties conducted discovery and settled this matter
being aware of the possible defenses and risks of litigation. Indeed, both the plaintiffs and the
Frederick County Board of Supervisors reviewed and approved of the terms of the proposed
settlement, and do not object to the settlement agreement.
The proposed settlement agreement in this case also prescribes an award of attorney fees
and costs collectively in the amount of $60,000. “[T]he FLSA requires judicial review of the
reasonableness of counsel's legal fees to assure both that counsel is compensated adequately and
that no conflict of interest taints the amount the wronged employee recovers under a settlement
agreement.” Poulin, 2010 WL 1813497, at *1. In the Fourth Circuit, courts typically use the
traditional lodestar method in determining whether the award of attorney fees was reasonable.
Id.; see Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978) (setting out twelve
factors used to ascertain a reasonable attorney fee). Here, counsel represents that they spent a
total of 277.13 hours on the case, resulting in $81,926.33 in fees and $1,572.18 in costs for a
total of $83,498.51.1 Counsel represented all sixty-four (64) plaintiffs in this matter, arguing
before this court the novel and complex issues raised in both the motion to dismiss and motion
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The fees were charged at the following hourly rates: the paralegals were billed at $115.00 an hour; a second year
associate attorney at $190.00; a partner with over eight years of experience and a senior associate with over seven
years of experience at $325.00 an hour; and the senior partner and has over thirty years of litigation experience at
$400.00 per hour. Given the experience of counsel in representing clients in FLSA matters, the court finds these
hourly rates reasonable.

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for summary judgment. As a result of the settlement of the various claims, the parties agreed to
cap the award at $60,000.00, representing an hourly rate discounted by over 25%. See Jackson
v. Estelle's Place, LLC, 391 F. App’x. 239 (4th Cir. 2010) (holding that use of proportionality
approach, at least in some degree, is acceptable for determining reasonableness of attorney fees
in FLSA claim). As such, the court finds that the award of attorney fees and costs, representing
one-third of the total settlement amount of $205,460.78, is reasonable.
Accordingly, the court ADOPTS the Magistrate Judge’s report and recommendation in
its entirety, and GRANTS the Joint Motion to Approve the Settlement Agreement (Dkt. No. 66).
This case shall be DISMISSED with prejudice and STRICKEN from the active docket of this
court.
IT IS SO ORDERED.
The Clerk is directed to send a copy of this Order to all counsel of record.
Entered: July 19, 2013

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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