United States District Court, D. Colorado
JANET SHAULIS, and JEWEL ARLENE KEY, individually and on behalf of all other similarly situated individuals Plaintiffs,
v.
FALCON SUBSIDIARY LLC, a Delaware limited liability company, d/b/a Axispoint Health, Defendant.
ORDER GRANTING MOTION FOR ATTORNEYS' FEES,
LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS
REPRESENTATIVE SERVICE AWARDS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
On
September 25, 2018, a hearing was held on the joint motion of
Plaintiffs, Janet Shaulis and Jewel Arlene Key
(“Plaintiffs”), and Defendant, Falcon Subsidiary
LLC d/b/a AxisPoint Health (“Defendant”), for
final approval of their class and collective action
settlement (the “Settlement”), and on the
separate motion of Plaintiffs and Class Counsel for
Attorneys' Fees, Litigation Expenses, Settlement
Administration Expenses, and Class Representative Service
Awards (Doc. # 31). Kevin J. Stoops of Sommers Schwartz,
P.C., appeared for Plaintiffs; and Chris C. Scheithauer of
McDermott Will & Emery LLP, appeared for Defendant.
The
parties have submitted their Settlement, which this Court
Preliminarily Approved by its Order entered on June 19, 2018.
(Doc. # 27). In accordance with the Preliminary Approval
Order, Class Members have been given notice of the terms of
the Settlement and the opportunity to object to it or to
exclude themselves from its provisions.
Having
received and considered the motion of Plaintiff and Class
Counsel for Attorneys' Fees, Litigation Expenses,
Settlement Administration Expenses, and Class Representative
Service Awards; the Memorandum and corresponding declarations
and documents filed in support of that motion;
Plaintiff's and Class Counsel's Reply Brief in
support of their motion for Attorneys' Fees, Litigation
Expenses, Settlement Administration Expenses, and Class
Representative Service Awards; the Memorandum and
corresponding declarations and documents filed in support of
that reply; and based on the entire record of this actions;
the Court HEREBY ORDERS and MAKES DETERMINATIONS as follows:
1. The
Court has jurisdiction over the subject matter of this
action, the Defendant, and the Class.
2.
Notice of the requested award of attorneys' fees,
reimbursement of litigation expenses, reimbursement of
settlement administration expenses, and awards of class
representative service payments was directed to Class Members
in a reasonable manner, and complies with Rule 23(h)(1) of
the Federal Rules of Civil Procedure.
3.
Class Members and any party from whom payment is sought have
been given the opportunity to object in compliance with
Fed.R.Civ.P. 23(h)(2).
Appointment
of Class Representatives and Approval of Class
Representative Awards
4. The
Court confirms as final the appointment of Janet Shaulis and
Jewel Arlene Key as Class Representatives of the FLSA
Collective and the Rule 23 Class.
5. The
requested Class Representative service awards of $15, 000
($7, 500 for Named Plaintiff Janet Shaulis and $7, 500 or
Named Plaintiff Jewel Arlene Key) are fair and reasonable in
light of the time and effort the Class Representatives
expended for the benefit of the Class Members, as well as the
risk accepted by initiating the litigation and publicly
representing the Class. See, e.g., Pliego v. Los Arcos
Mexican Restaurants, Inc., 313 F.R.D. 117, 131 (D. Colo.
2016) ($7, 500 award); In re Janney Montgomery Scott LLC
Fin. Consultant Litigation, 2009 U.S. Dist. LEXIS 60790,
2009 WL 2137224, *12 (E.D. Pa. Jul. 16, 2009) (approving
incentive payments of $20, 000 each to three named
Plaintiffs) (unpublished); Bredbenner v. Liberty Travel,
Inc., 2011 U.S. Dist. LEXIS 38663, 2011 WL 1344745,
*22-23 (D.N.J. Apr. 8, 2011) (approving incentive payments of
$10, 000 to eight named plaintiffs; citing 2006 study
referenced in 4 Newberg on Class Actions § 11.38, at
11-80, that showed average incentive award to class
representatives to be $16, 000) (unpublished). Here, the
Class Representatives' leadership of this action caused
them personal exposure and potential adverse consequences
with future employers, and their representation of the FLSA
and Rule 23 Classes enhanced the case's value overall by
increasing Defendant's potential exposure, tolling the
statutes of limitations for those claims. Furthermore, Class
Counsel attests that the Class Representatives were
substantially involved throughout the litigation, educating
Class Counsel regarding Class Members' job experiences
and Defendant's policies and procedures. Accordingly, the
Court approves payment of Class Representative service awards
in the amount of $7, 500 to Janet Shaulis and $7, 500 to
Jewel Arlene Key.
Appointment
of Class Counsel; Approval of Class Counsel's
Attorneys' Fees and Litigation
Expenses
6. The
Court confirms as final the appointment of the following law
firm and attorneys as class counsel (“Class
Counsel”) for the Rule 23 and FLSA Classes: Kevin
Stoops and Jason Thompson of Sommers Schwartz, P.C.
7. The
Court finds and determines that Class Counsel's requested
award of $198, 333.33 in attorneys' fees, or 33 1/3% of
the common funds, is reasonable under the percentage of the
common fund method, as it is consistent with the rule
followed by District Courts in the Tenth Circuit. See
e.g., Thompson v. Qwest Corporation, 2018 WL 2183988, at
*1 (D. Col. May 11, 2018) (33.3% of gross settlement awarded
for attorneys fees); Whittington v. Taco Bell of Am.,
Inc., 2013 WL 6022972, at *6 (D. Colo. Nov. 13, 2013)
(39% of the fund awarded as fees); Lucken Family Ltd.
Partnership, LLP v. Ultra Resources, Inc., Civil Action
No. 09-cv-01543-REB-KMT, 2010 WL 5387559, at *5-*6 (D. Colo.
Dec. 22, 2010) (“The customary fee awarded to class
counsel in a common fund settlement is approximately one
third of the total economic benefit bestowed on the
class.”) (citing, inter alia, Vaszlavik v. Storage
Technology Corp., Case No. 95-B-2525, 2000 WL 1268824,
*4 (D. Colo. Mar. 9, 2000) (“requested fee of 30% of
the settlement is well within the ordinary range of common
fund awards, ” and “[a] 30% common fund award is
in the middle of the ordinary 20%- 50% range and is
presumptively reasonable.”). The Court reaches this
conclusion based on attorneys' fees awards issued in
similar wage and hour cases in this District, and the fact
that the common fund of $595, 000 was created for Class
Members through the efforts of Class Counsel.
8. The
requested fee award is also reasonable under the lodestar
method. The hours devoted to this case by Class Counsel and
their rates are reasonable. The award, results in a
multiplier of 1.36 to 1.72 which falls within the range of
fee multipliers courts routinely approve, is reasonable in
light of the time and labor required, the difficulty of the
issues involved, the requisite legal skill and experience
necessary, the results obtained for the Class, the contingent
nature of the fee and risk of no payment, and the range of
fees that are customary. Courts routinely approve similar or
higher lodestar multipliers in comparable common fund cases.
See Vizcaino, 290 F.3d at 1052-54; Steiner v.
Am. Broad. Co., 248 Fed.Appx. 780, 783 (9th Cir. 2007)
(affirming award with multiplier of 6.85); see also
Newberg, Attorney Fee Awards, § 14.03 at 14-5 (1987)
(“multiples ranging from one to four are frequently
awarded in common fund cases when the lodestar method is
applied.”); Rabin v. Concord Assets Group,
Inc., No. 89 Civ. 6130 (LBS), 1991 WL 275757 (S.D.N.Y.
1991) (4.4 multiplier) (“In recent years multipliers of
between 3 and 4.5 have become common.”) (internal
quotations and citations omitted); In re Xcel Energy,
Inc., Securities, Derivative & “'ERISA”
Litig., 364 F.Supp.2d 980, 998-99 (D. Minn. 2005)
(approving 25% fee, resulting in 4.7 multiplier); In re
Aremissoft Corp. Sec. Litig., 210 F.R.D. 109, 134-35
(D.N.J. 2002) (approving 28% fee, resulting in 4.3
multiplier); Maley v. Del Global Techs. Corp., 186
F.Supp.2d 358, 371 (S.D.N.Y. 2002) (approving 33.3% fee,
resulting in ...