Berndt, Steven v. Cleary Building Corporation

Filing 436

ORDER and JUDGMENT granting 424 Motion for Attorney Fees. Plaintiffs awarded attorney fees in the amount of $327,803.06. ; granting 432 Motion for Final Approval of Settlement Agreement. Signed by District Judge William M. Conley on 12/4/2013. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

STEVEN BERNDT, ERIC HOLEVATZ,
MIKE HARMON, RYAN STEERE, and
RAYMOND PETERSON,
Plaintiffs,

OPINION AND ORDER

v.
11-cv-791-wmc
CLEARY BUILDING CORP.,
Defendant.

Pursuant to a joint motion, the parties seek final approval of their settlement of
this hybrid action, which alleges wage and hour violations (1) as a collective action under
29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”) and (2) as class actions
pursuant to Federal Rule of Civil Procedure 23 under the wage and hour laws of Iowa,
Wisconsin, Illinois and Minnesota. (Dkt. #432.) For the reasons that follow, as well as
those set forth in the court’s opinion and order granting preliminary approval of this
settlement (dkt. #421), the court will give final approval of the settlement terms and
approve the enhanced payments, attorney fees and costs, as well as certify a Rule 23 class
for that purpose.

A. Settlement
Based on today’s fairness hearing at which only the parties’ counsel appeared, as
well as on their representations, the parties’ written submissions, the lack of any

objections, and the entire record in this case,1 the court concludes that the parties’
settlement is fair, reasonable and adequate pursuant to Federal Rule of Civil Procedure
23(e) and that the settlement represents a fair and reasonable resolution of a bona fide
dispute over FLSA provisions. The modest enhancement payments to the initial and
later named plaintiffs and to those class members who were required to stand for
deposition are also reasonable.

B. Attorneys’ fees
Also before the court is class counsel’s petition for attorneys’ fees and costs, which
will be approved.

(Dkt. #424.) Class counsel seeks $277,500.00 in attorneys’ fees,

representing 30% of the settlement fund, as well as their costs in the amount of
$50,303.06. The court has reviewed class counsel’s arguments in support of this award
(Br. in Supp. of Mot. for Atty’s Fees, (dkt. #425)), the declaration of Attorney William
E. Parsons and attached time entries and incurred costs (dkt. ##426, 426-1, 426-2), and
declarations by three third-party attorneys (dkt. ##427-429). Class counsel expended
considerable resources litigating this matter over two years, including more than 1900
attorney hours, which total approximately $446,275.00 if billed hourly. Counsel also
entered into a contract with the named plaintiff upfront in which he agreed to a payment
of 33.33% of the gross recovery plus costs.

1

Among other considerations, the court notes that only 2 individuals, representing less
than 0.2% of the 850 total members across the three classes, excluded themselves from
the settlement and no individuals objected to the settlement.
2

Although the latter agreement is not binding absent advance approval by the
court, the court is separately satisfied a 30% fee request is reasonable given: (1) the
relatively advanced stage of this case at the time of settlement (significant discovery,
including numerous depositions, an opposed collective action certification, plaintiffs’
motion for certification of four class actions and defendant’s motion for decertification of
the collective action); (2) the factual and legal uncertainties regarding plaintiffs’ claims;
(3) market rates; (4) awards for similar hybrid FLSA and Rule 23 class actions in this
district; and (5) a resolution of the entire case is in the best interest of the class members,
none of whom have objected to the fee request.2 The court further finds class counsel’s
request for reimbursement of actual costs in the amount of $50,303.06 to be reasonable
and well-documented. (Dkt. #426-2.) Accordingly, the court will award attorney’s fees
and costs in the total amount of $327,803.06.

ORDER
IT IS ORDERED that:
1) The parties’ joint motion for final approval of the settlement agreement (dkt.
#432) is GRANTED and the parties are directed to carry out its terms and
provisions;
2) the enhancement payments of $5,000 to Steven Berndt, $2,500 to Eric Holevatz,
$1,000 each to Ryan Steere, Raymond Peterson, and Michael Harmon, and $500
each to Ryan Simonson, Adam Bubke, Dan Lamke, Jesse Kolosik, Curtis Sitzman,
Mitch Schultze, Nick Wojtanek, Nicholas Ashman, and Ryan Dziedzic are
APPROVED;

2

As indicated at the hearing, the court urges class counsel to consider seeking approval of
a fee schedule earlier in cases of this kind. See Silverman v. Motorola Solutions, Inc., Nos.
12-2339, 12-2354, 2013 WL 4082893, at *1 (7th Cir. Aug. 14, 2013).
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3) class counsel’s petition for costs and attorneys’ fees (dkt. #424) is GRANTED in
the requested amount of $327,803.06;
4) settlement payments described in the Exhibit C to the parties’ joint motion for
preliminary approval of settlement agreement (dkt. #416-2) with any
modifications to account for those class members who excluded themselves from
the settlement are APPROVED; and
5) this action is dismissed, the court expressly retains jurisdiction to enforce the
terms of settlement and the clerk of the court is directed to close this case subject
to reopening upon good cause shown.
Entered this 4th day of December, 2013.
BY THE COURT:
/s/
_____________________________________
WILLIAM M. CONLEY
District Judge

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