United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
to an unopposed motion, plaintiffs Thomas Bitner and Toshia
Parker seek final approval of a settlement of this hybrid
action, which alleges wage and hour violations (1) as
collective actions under 29 U.S.C. § 216(b) of the Fair
Labor Standards Act ("FLSA") and (2) as a class
action pursuant to Federal Rule of Civil Procedure 23 under
the wage and hour laws of Wisconsin. (Dkt. #291.) 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. #283), the court will give final
approval of the settlement terms and approve the enhanced
payments and an award of attorneys' fees and costs.
on today's fairness hearing, plaintiffs' written
submissions, the lack of any objections or exclusions by the
80 members of the Rule 23 class, the execution of individual
releases by all 25 FLSA opt-in plaintiffs, 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 enhancement
payments of $7, 500 to the two named plaintiffs, $7, 500 and
$5, 000, respectively, to two FLSA opt-in plaintiffs is also
reasonable in light of plaintiffs' representations about
the extent of their respective involvement in discovery and
other aspects of the case.
before the court is class counsel's petition for
attorneys' fees and costs, which will be approved. (Dkt.
#286.) Class counsel seeks $500, 000.00 in fees, representing
one-third of the common settlement fund, and actual costs in
the amount of $46, 360.31, for a total award of $546, 360.31.
The court has reviewed class counsel's arguments in
support of this award (Pl.'s Br. (dkt. #287) and the
declarations of Attorneys David C. Zoeller and Robert L.
Schug, with their respective attached time entries and
incurred costs (dkt. ##288, 289). The time records reflect
that class counsel expended resources litigating this matter
over the past four years, including approximately 2, 400
hours of attorney time at hourly rates ranging from $ 185 to
$625, which totals approximately $887, 000.00 if billed
hourly. (Pl.'s Br. (dkt. #287) 2.) Class counsel, across
the two firms, also accumulated $46, 360.31 in costs.
(Zoeller Decl. (dkt. #288) ¶ 2; id., Ex. B
(dkt. #288-2).) Counsel also represents that it entered into
a contract with the named plaintiffs upfront, in which they
agreed to a payment of 33.33% of the gross recovery plus
actual costs. (Id. at ¶ 9.)
class counsel seeks an award of 33% of the settlement fund
plus actual costs consistent with the terms of that retainer
agreement. This percentage falls within the market rate under
the Seventh Circuit's approach to setting a percentage of
the total settlement common fund for an attorneys' fee
award. (Pl.'s Br. (dkt. #287) 11-12 (citing
cases awarding approximately one-third of settlement fund).)
Moreover, the lodestar amount calculated by class counsel
exceeds the requested fees by more than $300, 000, which is
hardly surprising given this case's four-year history,
including: (1) plaintiffs' efforts in conditionally
certifying two FLSA collective actions and successfully
opposing a motion to decertify, certifying a Rule 23 class
action, opposing defendant's attempt at an interlocutory
appeal of those decisions, and also opposing a motion for
partial summary judgment; (2) the extensive discovery
completed in this action, not least of which required the
review of voluminous time records; (3) evaluation of the
factual and legal uncertainties that remain with respect to
plaintiffs' claims; and (4) determining that a resolution
of the entire case is in the best interest of the class
members, none of whom have objected to the fee request.
Finally, the award also appears consistent with market rates
and fee awards for similar hybrid FLSA and Rule 23 class
actions in this district. Accordingly, the court has no
qualms in finding the request of a 33% attorneys' fee
award plus actual costs as requested to be reasonable and
will award attorneys' fees and costs in the total amount
of $546, 360.31.
IT IS ORDERED that:
Plaintiffs' unopposed motion for final approval of the
settlement agreement (dkt. #291) is GRANTED, and the parties
are directed to carry out its terms and provisions.
enhancement payments of $7, 500 each to Thomas Bitner, Toshia
Parker, Abraham Haupt, and $5, 000 to Casey O'Donnell are
Class counsel's petition for costs and attorneys'
fees (dkt. #286) is GRANTED in the requested amount of $546,
Settlement payments described in Exhibit A to the Declaration
of David C. Zoeller (dkt. #293-1) are APPROVED.
action is dismissed with prejudice, barring and permanently
enjoining named plaintiffs and all class members from
pursuing any claims that were released against defendant.
court expressly retains jurisdiction to enforce the terms of
settlement. The clerk of the court is directed to close this