United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
to an unopposed motion, plaintiff David Hoffmaster seeks
final approval of a 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 Wisconsin. (Dkt. #43.) 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.
#37), the court will give final approval of the settlement
terms and approve the enhanced payments, attorneys' fees
and costs, as well as certify a Rule 23 class for that
on today's fairness hearing, plaintiff's written
submissions, the lack of any objections, and the entire
record in this case,  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 payment
of $3, 000 to the named plaintiff is also reasonable.
before the court is class counsel's petition for
attorneys' fees and costs, which will be approved. (Dkt.
#38.) Class counsel seeks $62, 500 in attorneys' fees and
costs, representing 33% of the common settlement fund. The
court has reviewed class counsel's arguments in support
of this award (Pl.'s Br. (dkt. #39), the declaration of
Attorney David C. Zoeller and attached time entries and
incurred costs (dkt. ##40, 40-1, 40-2), and declarations by
two third-party attorneys (dkt. ##41-42). The time records
reflect that class counsel expended resources litigating this
matter over the past year, including approximately 117 hours
of attorney time at hourly rates ranging from $225 to $400,
which total approximately $38, 540.00 if billed hourly.
(Zoeller Decl., Ex. B (dkt. #40-2).) Class counsel also
accumulated $4, 979.12 in costs. (Id., Ex. A (dkt.
#40-1).) Counsel also represents that it entered into a
contract with the named plaintiff upfront in which he agreed
to a payment of 33.33% of the gross recovery plus
class counsel seeks an award of 33% of the settlement fund,
inclusive of costs. In light of the approximate $5, 000 in
costs incurred by counsel, the attorney's fee portion of
the sought award amounts to closer to 30%. This percentage is
consistent with other awards granted by this court in
approving class action settlements. (Pl.'s Br. (dkt. #39)
9 (citing cases).) Still, unlike in other cases, the lodestar
amount, calculated by class counsel as $38, 540, falls almost
$20, 000 short of the requested fee amount. While class
counsel argues that a lodestar cross-check is unnecessary
where a market rate is available (Pl.'s Br. (dkt. #39)
15-19), the court nevertheless finds the actual fees incurred
can provide a critical reference point for fee requests,
especially where the so-called market rate is established in
a one-sided negotiation. Of course, the court also credits class
counsel's argument that a lodestar approach does not
necessarily account for the risks associated with class
litigation or the market for such litigation, if less so in a
case like this where the law and facts are now fairly
some reservation, the court nonetheless finds the 33% fee and
cost request reasonable given: (1) the need for significant
discovery, including a material and early 30(b)(6)
deposition; (2) the factual and legal uncertainties that
remain with respect to 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. Accordingly, the court
will award attorney's fees and costs in the total amount
of $62, 500.00.
1) Plaintiff's unopposed motion for final approval of the
settlement agreement (dkt. #43) is GRANTED and the parties
are directed to carry out its terms and provisions.
2) The enhancement payments of $3, 000.00 to named plaintiff
David Hoffmaster is APPROVED.
3) Class counsel's petition for costs and attorneys'
fees (dkt. #38) is GRANTED in the requested amount of $62,
4) Settlement payments described in the Exhibit A to the
Declaration of David C. Zoeller ...