Kirkwood v. Noble Food Group, Inc et al

Filing 86

ORDER granting parties' 85 Joint Motion for Order Approving Settlement signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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GARY KIRKWOOD, on behalf of himself
and others similarly situated,

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CASE NO. C18-0360-JCC
ORDER

Plaintiffs,

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v.

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NOBLE FOOD GROUP, INC., et al.,
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Defendants.

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This matter comes before the Court on the parties’ joint motion for approval of their Fair

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Labor Standards Act (“FLSA”) settlement (Dkt. No. 85). Having thoroughly considered the
parties’ briefing and the relevant record, the Court hereby GRANTS the motion for the reasons
explained herein.

I.

BACKGROUND
Named Plaintiff Gary Kirkwood filed this matter on March 8, 2018, alleging that

Defendants violated the FLSA and the Washington Minimum Wage Act (“WMWA”) by using a
flawed method to determine reimbursement rates such that Plaintiffs’ wages fell below the
minimum wage. (Dkt. No. 1.) The parties jointly moved for conditional class certification, which
the Court granted. (Dkt. Nos. 12, 13.) Plaintiffs filed an amended complaint, which dropped their
WMWA claim. (Dkt. No. 14.) Thereafter, the parties participated in successful mediation and

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now move for approval of their settlement agreement, including an agreement for attorney fees.

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(Dkt. No. 85.)

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II.

DISCUSSION

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The Court should approve an FLSA settlement if the settlement is a “fair and reasonable

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resolution of a bona fide dispute.” Grewe v. Cobalt Mortg., Inc., Case No. C16-0577-JCC, Dkt.

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No. 48 at 2 (W.D. Wash. 2016). When assessing whether the settlement is a fair and reasonable

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resolution of a bona fide dispute, “[t]he Court considers factors such as the risk, expense,

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complexity, and likely duration of litigation; the amount offered in settlement; the extent of

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discovery completed and the stage of the proceedings; and the reaction of the putative members

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of the proposed settlement.” Id.
The Court finds that the proposed settlement represents a resolution of a bona fide

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dispute, given both parties’ representations of the merits of their claims and defenses. (See Dkt.

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No. 85.) Weighing the chance of a much higher recovery for Plaintiffs against the competing

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chance of no recovery at all, the agreed settlement amount is reasonable. (See Dkt. No. 85-1.)

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The Court also considers the process of allocating funds to class members to be fair and

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reasonable. (See id.) Finally, none of the opt-in Plaintiffs have objections to the proposed

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settlement. (See Dkt. Nos. 85, 85-1.)

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The parties’ settlement agreement includes an award of attorney fees to Plaintiffs’

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counsel. (Dkt. No. 85-1 at 5.) Plaintiffs’ counsel seeks an award of one-third of the gross

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settlement fund and $12,000 in expenses. (Id.) All of the opt-in Plaintiffs were advised of this fee

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percentage and no Plaintiff objected to it. (Dkt. No. 85-2 at 11.) To determine whether a fee is

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reasonable, courts calculate the lodestar figure “by taking the number of hours reasonably

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expended on the litigation and multiplying it by a reasonable hourly rate.” Fischer v. SJB–P.D.

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Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). When comparing the lodestar figure in this case with

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the attorney fees amount in the settlement agreement, the comparison reflects a multiplier of

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1.90. However, such an enhancement “mirrors the established practice in the private legal market
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of rewarding attorneys for taking the risk of nonpayment by paying them a premium over their

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normal hourly rates for winning contingency cases.” Vizcaino v. Microsoft Corp., 290 F.3d 1043,

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1051 (9th Cir. 2002). The multiplier of 1.90 is reasonable, particularly considering the much

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higher multiplier awards approved by the Ninth Circuit. See, e.g., id. (approving a multiplier of

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3.65); Steiner v. Am. Broad. Co., 248 F. App’x 780, 783 (9th Cir. 2007) (approving a multiplier

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of 6.85).

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Upon review of the contents of the parties’ joint motion and the settlement agreement, the

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Court finds that the settlement is a fair and reasonable resolution of a bona fide dispute and the

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amount of attorney fees contained within it is reasonable.

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III.

CONCLUSION

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For the foregoing reasons, the Court ORDERS the following:

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1. The parties’ joint motion for approval of their FLSA settlement (Dkt. No. 85) is

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GRANTED.

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2. The proposed settlement agreement (Dkt. No. 85-1) is APPROVED.

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3. The $3,000 service award to the named Plaintiff, Gary Kirkwood, to be deducted

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from the gross settlement amount, is APPROVED.
4. Plaintiffs’ counsel are AWARDED $150,000 in attorney fees and $12,000 in
expenses, both to be deducted from the gross settlement amount.

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5. The opt-in Plaintiffs have released their claims, pursuant to the settlement agreement.

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6. Plaintiffs’ claims are DISMISSED with prejudice.

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DATED this 22nd day of January 2019.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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