Driscoll v. George Wash. Univ.

• Decision Date: 17 July 2014
• Docket Number: Civil Action No. 12–cv–690 ESH
• Citation: 55 F.Supp.3d 106
• Parties: David M. Driscoll, individually and on behalf of all others similarly situated Plaintiff, v. The George Washington University, Defendant.
• Court: U.S. District Court — District of Columbia

55 F.Supp.3d 106

David M. Driscoll, individually and on behalf of all others similarly situated Plaintiff

v.The George Washington University, Defendant.

Civil Action No. 12–cv–690 ESH

United States District Court, District of Columbia.

Signed July 17, 2014

Lesley Anne Tse, Michael J.D. Sweeney, Dan Charles Getman, Getman & Sweeney, PLLC., New Paltz, NY, for Plaintiff.

Raymond C. Baldwin, Alexander J. Passantino, Esther Slater McDonald, Seyfarth Shaw, LLP, Washington, DC, Richard L. Alfred, Seyfarth Shaw LLP, Boston, MA, for Defendant.

MEMORANDUM OPINION AND ORDER

ELLEN SEGAL HUVELLE, United States District Judge

Presently before the Court is plaintiffs' counsel's application for costs and attorneys' fees in light of the settlement agreement reached by the parties on February 28, 2014. (See Pl.'s Application for Costs and Fees, Mar. 31, 2014 [ECF No. 94] (“Application”).) Having considered this application, defendant's opposition, (Resp. to Pl.'s App. for Costs and Fees, Apr. 17, 2014 [ECF No. 95] (“Opp.”) ) and plaintiffs' counsel's reply, (Reply Mem. of Law in Support of Pl.'s Application for Costs and Fees, Apr. 28, 2014 [ECF No. 97] (“Reply”) ) the Court will grant plaintiffs' counsel's request in part. For the reasons discussed below, the Court will award plaintiffs' counsel $387,710.48 in fees and $13,510.42 in costs.

BACKGROUND

The material facts relevant to this case were described in detail in this Court's two prior opinions. See Driscoll v. George Washington Univ., 42 F.Supp.3d 52, 2012 WL 3900716 (D.D.C. Sept. 10, 2012) (“Driscoll I ”); Driscoll v. George Washington Univ., 938 F.Supp.2d 19 (D.D.C.2013) ( “Driscoll II ”). An abbreviated and updated version of the facts will therefore suffice.

On April 27, 2012, David M. Driscoll sued his former employer George Washington University (“GWU”) on behalf of himself and other similarly situated employees. (See Compl., Apr. 27, 2012 [ECF No. 1 ].) In his complaint he alleged that he and other executive assistants, executive coordinators, and executive associates employed by GWU were unlawfully denied overtime pay to which they were legally entitled under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”), the D.C. Minimum Wage Act, D.C. Code §§ 32–1001, et seq. (“DCMWA”), and the D.C. Wage Payment and Collection Law, D.C. Code §§ 32–1301, et seq. (“DCWPCL”). See Driscoll I, 42 F.Supp.3d at 54–56, 2012 WL 3900716, at *1. He further alleged that after voluntarily re-classifying these employees, GWU provided insufficient back pay. See Driscoll II, 938 F.Supp.2d at 20.

On July 3, 2012, defendant filed a motion to dismiss all of plaintiff's claims, (see Mot. to Dismiss First Am. Compl., July 3, 2012 [ECF No. 9 ] ) and on July 17, 2012, plaintiff filed a cross-motion for leave to file a second amended complaint alleging additional facts as well as adding a Rule 23 class action claim under the DCMWA. (See Cross–Mot. to Am. the Class Action Compl., July 17, 2012 [ECF No. 12 ].) On September 10, 2012, the Court denied plaintiff's motion to file a second amended complaint insofar as it sought to add a new Rule 23 opt-out class action claim under the DCMWA and granted plaintiff's motion insofar as it sought to plead additional facts. Driscoll I, 42 F.Supp.3d at 63, 2012 WL 3900716, at *9. The Court denied defendant's motion to dismiss in its entirety. Id. Soon thereafter, the Court conditionally certified an opt-in collective action under § 216(b) of the FLSA and notice was issued to one hundred and sixty-nine potential plaintiffs. See Driscoll II, 938 F.Supp.2d at 21. Twenty-one individuals filed opt-in consent forms to join the lawsuit, though three subsequently withdrew their consent. Plaintiffs then filed a motion to certify an opt-out Rule 23 class action based on their DCWPCL claim and defendant filed a partial motion for summary judgment on plaintiffs' DCWPCL claim alleging that the DCMWA was the exclusive state-law vehicle for challenging defendant's actions. (See Mot. to Certify Class, Oct. 11, 2012 [ECF No. 34 ]; Mot. for Partial Summ. J., Dec. 4, 2012 [ECF No. 45 ].)

On April 5, 2013, the Court granted defendant's motion for summary judgment on plaintiffs' DCWPCL claim. After noting that the question was one of first impression in this jurisdiction, the Court concluded that plaintiff could not bring a DCWPLA claim “based on the same facts as [an] [actionable] DCMWA claim.”Driscoll II, 938 F.Supp.2d at 23. Because the Court concluded that plaintiffs could not bring a DCWPCL claim, the Court denied plaintiffs' motion for Rule 23 class certification as moot. Id. at 25.

The parties held their Rule 26(f) conference on May 1, 2013, and began exchanging discovery soon thereafter. (Decl. of Michael J.D. Sweeney in Support of Pl.'s Application for Costs and Fees, Mar. 31, 2014 [ECF No. 94–2] (“Sweeney Decl.”), at ¶ 6.) On or about August 22, 2013, the parties began to discuss the possibility of settlement. (Id. at ¶ 12.) After extensive discussions held in Washington, D.C. under the direction of mediator Nancy Lessor, the parties reached an initial settlement term sheet on December 7, 2013. Six weeks later the parties agreed to a final version of the Confidential Settlement Agreement. As part of this agreement, approved by the Court, defendant agreed to pay plaintiffs' counsel “reasonable attorneys' fees and costs as determined by this Court.” (Id. at ¶¶ 13–17.)

On March 31, 2014, plaintiffs' counsel filed the present application for costs and fees. With it, plaintiffs' counsel also provided the Court with detailed billing records and receipts for all purported costs.¹ (See Application Ex. A [ECF No. 94–3]; Application Ex. B. [ECF No. 94–4] (“Receipts”).) Defendant filed an opposition to this application and plaintiffs' counsel filed a reply. Based on its careful review of these filings, the Court is now tasked with (1) determining the appropriate method for calculating reasonable attorneys' fees in this case and (2) calculating those fees and costs to which plaintiffs' counsel is entitled.

ANALYSIS

I. LEGAL FRAMEWORK

Under the FLSA, the Court must “allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). The purpose of this mandatory fee-shifting scheme is to “provide an adequate economic incentive for private attorneys to take employment discrimination cases, and thereby to ensure that plaintiffs would be able to obtain competent legal representation for the prosecution of legitimate claims.” See Laffey v. Nw. Airlines, Inc., 746 F.2d 4, 11 (D.C.Cir.1984), overruled in part on other grounds by Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1525 (D.C.Cir.1988) ; see also, e.g., Heder v. City of Two Rivers, 255 F.Supp.2d 947, 952 (E.D.Wis.2003), aff'd, 93 Fed.Appx. 81 (7th Cir.2004) ( “The [FLSA fee-shifting] provision exists to enable plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail and, thereby to help ensure the enforcement of the substantive provisions of FLSA.”) While the Court has considerable latitude in calculating the appropriate attorneys' fees and costs, it also has an affirmative duty to ensure that whatever amount it awards is “reasonable.” See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

II. PROPER METHOD FOR CALCULATING REASONABLE ATTORNEYS' FEES

The first disputed issue in the case is the appropriate method for calculating plaintiffs' attorneys' fees. Plaintiffs' counsel advocates for the use of the so-called “lodestar approach,” which “as its name suggests, [has] become the guiding light of [the Supreme Court's] fee-shifting jurisprudence.” Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 551, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (internal citations and quotation marks omitted); Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C.Cir.1993) (concluding that the lodestar method is appropriate when calculating fees based on fee-shifting statutes). Under this approach, “[t]he initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). “Developed after the practice of hourly billing had become widespread ... the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue, 559 U.S. at 551, 130 S.Ct. 1662 (internal citations omitted) (emphasis in original). This approach is favored in the fee-shifting context because it encourages attorneys to undertake such cases despite low opt-in rates and the potential for relatively small aggregate recoveries.²

Defendant, on the other hand, advocates for the Court to apply the “percent-of-fund” method to calculate the reasonable attorneys' fees in this case. (Opp. at 6.) Under this method, “a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole.” Swedish Hosp. Corp., 1 F.3d at 1265 (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) ). The percent-of-fund method is generally used in the Rule 23 class action context and is predicated on the idea that the costs of such actions ought to be “spread to the beneficiaries of the fund.” Id. As defendant correctly notes, the Court of Appeals has not “specifically addressed the application of the percent-of-fund method to [the] calculation of fee awards in FLSA cases....” (Opp. at 7.) Yet, in defendant's view, the percent-of-fund method is nevertheless appropriate in cases such as this one because “the nature of the settlement [is a] ‘Gross Sum’ or ‘fund’ amount, that is subsequently distributed based upon whatever method or...