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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 1 of 8 PageID #: 361

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERIC MONSERRATE, et al.,

Plaintiffs,

-against-

TEQUIPMENT, INC., et al.,

Defendants.

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LEVY, United States Magistrate Judge:

MEMORANDUM
AND ORDER

11 CV 6090 (RML)

This matter is before me on consent of the parties, pursuant to 28 U.S.C. § 636(c).

By order dated October 15, 2012, I granted final approval of the collective action settlement in

this Fair Labor Standards Act (“FLSA”) case. The only outstanding issue is plaintiffs’ motion

for attorney’s fees and costs. Class counsel seeks an award of attorney’s fees in the amount

$620,000, which represents twenty percent (20%) of the Settlement Fund (the “Fund”), and

reimbursement of $9,543.10 in out-of-pocket expenses. (See Memorandum of Law in Support of

Plaintiffs’ Motion for Approval of Attorneys’ Fees and Reimbursement of Expenses, dated Sept.

28, 2012 (“Pls.’ Mem.”).) Defendants object on the ground that the fee request is excessive, and

instead propose that counsel be awarded $300,000 in fees, with the remaining $320,000 to be

distributed to the class members. (See Memorandum of Law in Opposition to Plaintiff’s Motion

for Approval of Attorneys’ Fees and Reimbursement of Expenses, dated Oct. 8, 2012 (“Defs.’

Mem.”).)

“Fee awards in wage-and-hour cases are meant to ‘encourage members of the bar

to provide legal services to those whose wage claims might otherwise be too small to justify the

retention of able, legal counsel.’” Garcia v. Pancho Villa’s of Huntington Village, Inc., No. 09

Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 2 of 8 PageID #: 362

CV 486, 2012 WL 5305694, at *7 (E.D.N.Y. Oct. 4, 2012) (quoting Sand v. Greenberg, No. 08

CV 7840, 2010 U.S. Dist. LEXIS 69359, at *9 (S.D.N.Y. Jan. 7, 2010)). Therefore, attorneys

who create a common fund from which members of a class are compensated are entitled to “a

reasonable fee—set by the court—to be taken from the fund.” Goldberger v. Integrated Res.,

Inc., 209 F.3d 43, 47 (2d Cir. 2000) (internal citation omitted). In FLSA actions, courts typically

employ either a “percentage of the fund” or lodestar approach to determining appropriate fees,

but “[t]he trend in this Circuit is to use the percentage of the fund method to compensate

attorneys in common fund cases like this one.” Matheson v. T–Bone Rest., L.L.C., No. 09 CV

4214, 2011 WL 6268216, at *4 (S.D.N.Y. Dec. 13, 2011) (citing McDaniel v. Cnty. of

Schenectady, 595 F.3d 411, 417 (2d Cir. 2010)). This is because:

[T]he percentage method directly aligns the interests of the class
and its counsel and provides a powerful incentive for the efficient
prosecution and early resolution of litigation. . . . [It] is also the
most efficient means of rewarding the work of class action
attorneys, and avoids the wasteful and burdensome process—to
both counsel and the courts—of preparing and evaluating fee
petitions. . . .

Chavarria v. N.Y. Airport Serv., L.L.C., No. 10 CV 1930, 2012 WL 2394797, at *10–11

(E.D.N.Y. June 25, 2012) (quoting In re Lloyd’s Am. Trust Fund Litig., No 96 CV 1262, 2002

WL 31663577, at *25 (S.D.N.Y. Nov. 26, 2002)). In addition, the percentage method is intended

to mirror the private marketplace, where contingent fee attorneys typically negotiate percentage

fee arrangements with their clients. See In re Am. Bank Note Holographics, Inc., 127 F. Supp.

2d 418, 432 (S.D.N.Y. 2001).

Following the Second Circuit’s decision in Goldberger, 209 F.3d 43, courts

consider the following factors to confirm the reasonableness of a fee award: (1) the time and

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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 3 of 8 PageID #: 363

labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of

the litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement;

and (6) public policy considerations. Wal–Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96,

121–22 (2d Cir. 2005) (citing Goldberger, 209 F.3d at 50).

Analyzing the first factor—time and labor expended by counsel—is effectively

the equivalent of using the lodestar calculation “[a]s a ‘cross-check’ to a percentage award.”

Wal–Mart Stores, 396 F.3d at 123; see also Johnson v. Brennan, No. 10 CV 4712, 2011 WL

4357376, at *16 (S.D.N.Y. Sept. 16, 2011). Under Arbor Hill Concerned Citizens Neighborhood

Ass’n v. Cnty. of Albany, 522 F.3d 182, 183–84 (2d Cir. 2008), a court calculating a

“presumptively reasonable” fee award must first establish a reasonable hourly rate, which is

“what a reasonable, paying client would be willing to pay.” Reasonable hourly rates are

determined by reference to, inter alia, fees in the community in which the action is pending and

the skill and experience of the attorney who worked on the matter. See, e.g., Luciano v. Olsten

Corp., 109 F.3d 111, 115–16 (2d Cir. 1997). See generally Arbor Hill, 522 F.3d at 184. The

party seeking fees then bears the burden of establishing that the number of hours for which it

seeks compensation is reasonable. See Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148,

1160 (2d Cir. 1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).

Here, plaintiffs’ counsel states that the lodestar amount is approximately

$125,089.50. (Declaration of Brent E. Pelton, Esq., sworn to Sept. 28, 2012 (“Pelton Decl.”),

¶ 8, Ex. A.). Counsel reached this number using the following hourly rates: $425 for Brent

Pelton (a partner with eleven years of experience in FLSA cases); $275 for Taylor Graham (a

2011 law school graduate); $275 for Nick Maxwell (a 2011 law school graduate); $225 for

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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 4 of 8 PageID #: 364

Michelle Quinn (a 2011 law school graduate); and a sliding rate of $125 to $200 for paralegals.

(Id., Ex. A.) Defendants correctly note that these rates exceed those typically awarded in the

Eastern District of New York in similar cases. See Sacardi v. Green Field Churrascaria, Inc., No.

10 Civ. 5605, 2012 WL 4979195, at *1 (E.D.N.Y. Oct. 17, 2012) (observing that “‘[o]verall,

hourly rates for attorneys approved in recent Eastern District of New York cases have ranged

from $200 to $350 for partners, $200 to $250 for senior associates, $100 to $150 for junior

associates, and $70 to $80 for legal assistants.’”) (quoting Cho v. Koam Med. Servs. P.C., 524 F.

Supp. 2d 202, 207 (E.D.N.Y. 2007)); see also Jemine v. Dennis, No. 08 CV 3072, 2012 WL

4482769, at *23 (E.D.N.Y. Sept. 28, 2012) (stating that “the prevailing hourly rates for partners

in this district are between $300 and $400” and recommending that junior associates be

compensated at the rate of $150 per hour); Lochren v. County of Suffolk, No. 01 CV 3925, 2010

WL 1207418, at *3 (E.D.N.Y. Mar. 23, 2010) (awarding attorney with twelve years of

experience an hourly rate of $375).

Plaintiffs’ counsel also claims to have spent 371 attorney and paralegal hours on

this matter. However, this case was settled after mediation, without formal discovery or any

significant litigation. Therefore, that number should be reduced. Where, as here, the application

for fees is voluminous, the court may order an across-the-board percentage reduction in

compensable hours. E.g., In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir.

1987) (explaining that “the district court has the authority to make across-the-board percentage

cuts in hours ‘as a practical means of trimming fat from a fee application’”) (citation omitted). I

find a twenty percent reduction in plaintiff’s counsel’s billing records appropriate, which results

in a lodestar of $107,071.60.

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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 5 of 8 PageID #: 365

Even with a lodestar of $125,089.50, class counsel’s request for $620,000 results

in a “lodestar multiplier” of close to five. Defendants’ suggested fee award of $300,000 is 2.39

times the lodestar amount. Courts regularly award multipliers from two to six times the lodestar.

See, e.g., In re Lloyd’s Am. Trust Fund Litig., 2002 WL 31663577, at *27 (multiplier of 2.09

times the lodestar); Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 371 (S.D.N.Y. 2002)

(multiplier of 4.65); In re NASDAQ MarketMakers Antitrust Litig., 187 F.R.D. 465, 489

(S.D.N.Y. 1998) (multiplier of 3.97); Roberts v. Texaco, Inc., 979 F. Supp. 185, 197 (S.D.N.Y.

1997) (multiplier of 5.5); In re RJR Nabisco, Inc. Sec. Litig., No. 88 CV 7905, 1992 WL 210138,

at *5 (S.D.N.Y. Aug. 24, 1992) (multiplier of 6). However, “[a] negative multiplier of plaintiff

counsel’s lodestar is not out of the ordinary in common fund cases, particularly where awarding a

positive multiplier of the lodestar may ‘swallow up’ a significant portion of the settlement

funds.” Fears v. Wilhelmina Model Agency, Inc., No. 02 CV 4911, 2007 WL 1944343, at *5

(S.D.N.Y. July 5, 2007) (collecting cases), aff’d in part, remanded in part on other grounds, 473

F.3d 423 (2d Cir. 2007). Thus, class counsel’s request, while not atypical, is on the high end.1

As to the second and third Goldberger factors–“the magnitude and complexities of

the litigation” and “the risk of [contingency] litigation”–the issues plaintiffs faced were not

significantly different or greater than those faced by plaintiffs in other similar class action cases.

See Sines v. Serv. Corp. Int’l, No. 03 CV 5465, 2006 WL 1148725, at *3 (S.D.N.Y. May 1,

1

On the other hand, this calculation is meant to serve as a rough indicator of the

propriety of a fee request, not as a litmus test. See In re Rite Aid Corp. Secs. Litig., 396 F.3d
294, 307 (3d Cir. 2005) (“the resulting multiplier need not fall within any pre-defined range,
provided that the District Court’s analysis justifies the award”).

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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 6 of 8 PageID #: 366

2006) (“The claims, here, involved no issues of exceptional difficulty. . . . It is, at bottom, a suit

for unpaid overtime[.]”).

With respect to the fourth Goldberger factor, I find that counsel was

well–qualified to conduct this litigation. Mr. Pelton appeared before me numerous times and I

had the opportunity to observe that he had a good grasp of the facts and the legal issues in this

case and capably handled settlement discussions. In addition, class counsel will likely be

required to perform more work on behalf of the class, including assisting with the administration

of the settlement and answering class members’ questions. See Khait v. Whirlpool Corp., No.

2

06–CV–6381, 2010 WL 2025106, at *9 (E.D.N.Y. Jan. 20, 2010) (noting that “Class Counsel’s

fee award will not only compensate them for time and effort already expended, but for time that

they will be required to spend administering the settlement going forward[.]”)

As to the fifth Goldberger factor– “the requested fee in relation to the settlement”–

it is true that a fee of twenty percent of the settlement is consistent with fees granted in other

class actions. See, e.g., In re Bristol Myers Squibb Sec. Litig., No. 06–CV–2925, 2007 WL

2

It also bears noting that no class members have objected to counsel’s requested fee
award. That does not relieve the court of its independent obligation to assess the fairness and
reasonableness of the request. See In re Diet Drugs Prods. Liab. Litig., No. MDL 1203, 2010
WL 3292787, at *9 (E.D. Pa. Aug. 19, 2010) (“The absence of even one objection to the current
fee petition weighs in favor of granting it but does not negate our independent obligation to
ensure its reasonableness”). It is, however, “a factor that weighs in favor of approval of the
award.” Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d 172, 183 (W.D.N.Y. 2011). See
also In re AT & T Corp., 455 F.3d 160, 169 (3d Cir. 2006) (noting “the absence of substantial
objections to the requested attorneys’ fees” as a factor supporting approval of fee award). That
makes sense, since one of the primary reasons courts must evaluate the reasonableness of a fee
award is to protect the interests of the class. See, e.g., Staton v. Boeing Co., 327 F.3d 938, 963
(9th Cir. 2003); Strong v. BellSouth Telecomms., Inc., 137 F.3d 844, 849 (5th Cir. 1998).

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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 7 of 8 PageID #: 367

2153284, at *1–2 (3d Cir. July 27, 2007) (affirming award of 19.77% of $36 million settlement

fund); In re EVCI Career Colleges Holding Corp. Sec. Litig., No. 05 Civ. 10240, 2007 WL

2230177, at *17 (S.D.N.Y. July 27, 2007) (awarding eighteen percent of $7,725,000 settlement

fund); Sines, 2006 WL 1148725 (awarding twenty percent of $4,450,000 settlement fund);

Varljen v. Meyers & Co., No. 97 Civ. 6742, 2000 WL 1683656, at *5 (S.D.N.Y. Nov. 8, 2000)

(awarding twenty percent of $5,040,750 settlement fund); In re Health Mgmt. Sys., Inc., 113 F.

Supp. 2d 613, 614 (S.D.N.Y. 2000) (awarding twenty percent of $4,500,000 settlement fund). At

the same time, defendants point out that an award of $620,000 would equate to an hourly rate of

$1,550, which is far above the standard hourly rate in this district.

Finally, as to the sixth Goldberger factor–“public policy considerations”– a fee

award must balance the public policy of enforcing the FLSA with the “overarching concern for

moderation.” See Goldberger, 209 F.3d at 53.

In sum, I find that a fee award of $465,000 which provides a 4.34 multiplier of the

reduced lodestar and constitutes fifteen percent of the $3,100,000.00 Settlement Fund, is a fair

and reasonable fee under Goldberger and related cases and should adequately compensate class

counsel for its time and effort, for the risk it faced in this case, and for the high quality of its

representation. Moreover, that reduced fee award will allow additional monies to be distributed

to class members.

Class counsel are also entitled to reimbursement of their reasonable litigation

expenses. See In re Indep. Energy Holdings PLC Sec. Litig., 302 F. Supp. 2d 180, 183 n.3

(S.D.N.Y. 2003). Here, class counsel’s out–of–pocket expenses, including filing fees, postage,

transportation, working meals, photocopies, and a mediator’s fee, are reasonable and were

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Case 1:11-cv-06090-RML Document 37 Filed 11/16/12 Page 8 of 8 PageID #: 368

incidental and necessary to the representation of the class, and defendants do not object to the

request. Counsel is therefore awarded $9,543.10 in expenses.

Class counsel is directed to submit a proposed Final Judgment consistent with this

Memorandum and Order.

SO ORDERED.

Dated: Brooklyn, New York
November 16, 2012

/s/
ROBERT M. LEVY
United States Magistrate Judge

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