Free Order on Motion to Seal Document - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Bank of America, N.A., 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On July 25, 2007, the Court conducted a status conference regarding the proposed Collective Settlement Agreement in the above matter. The Court found the Collective Settlement Agreement fair and reasonable, in general, but reserved judgment regarding the amount of attorneys' fees pending supplemental briefing. Collective Class Counsel seeks $1,032,000 in attorneys' fees. Having reviewed the supplemental briefs, the Court finds $825,000 fair and reasonable. BACKGROUND This case was a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b). (See Doc. 75 (collective class certification)). The Collective Settlement Agreement (Doc. 329, Ex. 2) provides for a total payment from Defendant, assuming all opt-ins participate, of $2.5 million, including costs and attorneys' fees. (Doc. 339). The fee agreements between Plaintiff Kaye Hutton, as representative of the collective class, and Collective Class Counsel provide for attorney fees in the amount of one-third of the gross
Case 2:03-cv-02262-ROS Document 342 Filed 09/24/2007 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kaye Hutton, Plaintiff, vs.

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No. CV 03-2262-PHX-ROS ORDER

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amount collected. (Doc. 339, Ex. 3). According to the fee agreement, Collective Counsel is entitled to $825,000. Collective Class Counsel, however, seeks $1,032,000 in attorneys' fees,

approximately $200,000 more than the amount owed according to the fee agreement. This amount was calculated by adding (1) a lodestar of $300,000 taken from the gross settlement fund, and (2) one-third of the gross settlement fund after deducting the lodestar ($2.2 million), or $732,600. Defendant does not object to the additional $200,000 for counsel, nor has any member of the collective class objected. Nevertheless, the Court must determine if the amount of attorneys' fees requested is fair and reasonable. See Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). ANALYSIS Typically in common fund cases, courts employ either the lodestar method1 or the percentage-of-recovery method. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) ("The district court has discretion to use the lodestar method or the percentage of the fund method
in common fund cases." (quoting In re Coordinated Pretrial Proceedings in Petroleum Prods.

Antitrust Litig., 109 F.3d 602, 607 (9th Cir. 1997)) (emphasis added). Collective Class Counsel has provided no authority that allows the Court to make awards under both methods simultaneously. Nor has Collective Class Counsel provided any documentation regarding how they reached the $300,000 lodestar amount. Without supporting documentation, the $300,000 lodestar amount cannot be awarded. See L. R. Civ. P. 54.2. Given the fact that Collective Class Counsel has not provided any authority that allows the Court to award a lodestar and a percentage of recovery and that they have not provided supporting documentation for the requested lodestar amount, the Court will only

Under the lodestar method, the Court calculates the attorneys' fee award "by multiplying the number of hours reasonably spent by a reasonable hourly rate and then enhancing that figure, if necessary, to account for the risks associate with the representation." Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). -2Case 2:03-cv-02262-ROS Document 342 Filed 09/24/2007 Page 2 of 4

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allow Collective Class Counsel to recover attorneys' fees under the percentage-of-recovery method. Under the percentage-of-recovery method, twenty-five percent is the benchmark for attorneys' fees calculations. Powers, 229 F.3d at 1256; Graulty, 886 F.2d at 272. The Court, however, finds that an upward departure to thirty percent is warranted in this case. Collective Class Counsel bore significant risk by agreeing to represent the collective class on contingency, and achieved an exceptional result. For example, in Woods v. Bank of America, No. 05-2-39938-0384 (Wash. Super. Ct., King County), a similar case under the FLSA seeking recovery for bank of America employees for a four-year period, the total settlement pool was only $823,702 for 169 claimants. Here, in part due to the extensive legal work performed by Collective Class Counsel, the thirty-six claimants in this case will receive, on average, five times more than the amount of the claimants in the Woods case. In addition, the litigation raised several complex questions of law and fact common to the collective class. Collective Class Counsel spent several years and 5,243 hours on this case, which, if calculated at their standard billing rates, would cost over $1.3 million. Accordingly, IT IS ORDERED that the Collective Settlement Agreement, (Doc. 329, Ex. 2), is approved as fair as reasonable, except that Collective Class Counsel shall be awarded $825,000 in attorneys' fees, rather than $1,032,000. IT IS FURTHER ORDERED that the Parties shall submit a Stipulation to Dismissal with Prejudice, no later than September 26, 2007. IT IS FURTHER ORDERED that Collective Counsel's Unopposed Motion to File Under Seal (Doc. 340) is GRANTED.

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DATED this 24th day of September, 2007.

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