Morales v. Farmland Foods, Inc.

• Decision Date: 18 April 2013
• Docket Number: 8:08CV504
• Parties: MARIA GUZMAN MORALES and MAURICIO GUAJARDO, on behalf of themselves and all other similarly situated individuals; Plaintiffs, v. FARMLAND FOODS, INC.; Defendant.
• Court: U.S. District Court — District of Nebraska

MARIA GUZMAN MORALES and MAURICIO GUAJARDO,on behalf of themselves and all other similarly situated individuals; Plaintiffs,

v.FARMLAND FOODS, INC.; Defendant.

8:08CV504

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: April 18, 2013

MEMORANDUM AND ORDER

This matter is before the court on plaintiffs' motions for attorneys' fees and costs, Filing Nos. 437 and 441.¹ This is a collective action for recovery of unpaid wages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Plaintiffs seek recovery of $2,881,472 in attorney fees for the services of lead counsel law firms Schneider Wallace Cottrell Brayton Konecky, LLP (now known as Schneider Wallace Cottrell Konecky and hereinafter referred to as "SWCK"), Berger & Montague, P.C. ("B&M"), and Welsh & Welsh, P.C., L.L.O. ("W&W").² They also seek $275,739.67 for costs incurred by those firms. Plaintiffs move separately for an award of $55,755 in fees for co-lead counsel Philip A. Downey and $2,068.73 in costs incurred by Downey. The defendant opposes the motions. See Filing No. 451, Response.

I. FACTS

The parties have entered into a Settlement Agreement that resolves this litigation. Filing No. 425-3, Ex. 1. Settlement Agreement. In the agreement, the defendants have agreed to pay $275,000 to the class in damages, including $35,000 to the named plaintiffs for statutory damages and service as class representatives. Id. at 2. Further, the defendant agreed to pay the costs and expenses of the claims administrator. Id. at 11. The Settlement Agreement also provides for payment by defendant of the plaintiffs' attorney fees as costs, as determined by the court. Id. at 2, 14-15. The Settlement Agreement reserves to the court the resolution of "any issues as to any Plaintiffs' or Class Counsel's claims for an award of attorneys' fees or reimbursement of expenses as a prevailing party pursuant to the Fair Labor Standards Act." Id. at 15. The Settlement Agreement also provides that the defendant will pay the attorney fees and costs in addition to the funds the class members receive; the attorney fees will not diminish the class payment. Id. at 2.

The notice disseminated to the class informed class members that the lead plaintiffs would seek an award of fees. See Filing No. 425-3, Index of Evid., Ex. C, Proposed Notice of Proposed Settlement at 3. Plaintiffs have shown that only one individual requested to be excluded from the class and one individual objected to the settlement. Filing No. 430-3, Index of Evid, Declaration of Sandra Roe at 5. The court held a fairness hearing on the parties' joint motion for final approval of class settlement on August 2, 2012. Filing No. 434, text minute entry. No one appeared at the hearing to object to the class settlement. The court approved the Settlement Agreement, finding that it provides "substantial benefits to the participating class members for the claimsalleged in the complaint" and that "[t]he settlement is a fair, reasonable and adequate resolution of a bona fide dispute." Filing No. 425, Final Order of Approval of Settlement and Dismissal.

All attorneys have submitted detailed time records, billing statements, expense statements, and supporting documentation including invoices and receipts. Filing No. 440, Index of Evid., Ex. D, Declaration of Philip A. Downey ("Downey Decl."); Filing No. 442, Index of Evid., Ex. A, Declaration of Carolyn H. Cottrell ("Cottrell Decl."); Filing No. 443, Index of Evid., Exs. B, Declaration of Shanon J. Carson ("Carson Decl."); Ex. C, Declaration of Christopher Welsh ("Welsh Decl."); Filing No. 447-2, Ex. 2, Supplemental Declaration of Carolyn Cottrell (Cottrell Supp. Dec."). Plaintiffs have documented that they collectively expended more than 8,407.55 hours on this litigation, resulting in a cumulative lodestar of $3,4744,759.20, before the exercise of counsel's billing judgment. Filing No. 442, Ex. A, Cottrell Decl. at 16, Ex. A3. In the exercise of billing judgment, the plaintiffs' counsel reduced their fees by approximately 17% and seek recovery of $2,881,472 in attorney fees.³ Id. at 16-20. Exs. A1, A3, A7.

In support of their motion, plaintiffs have shown that attorneys employed by SWCK, B&M, and W&W incurred a total of $3,474,759.2 in attorneys' fees, representing over 8,407 hours of work at hourly rates of $450 to $700 per hour for SWCK attorneys, $215 to $615 for B&M attorneys and $100 to $350 or W&W attorneys, and $50 to $250for law clerks and paralegals.⁴ They also seek an award of costs in the amount of $133,346.02 for expenses incurred by SWCK and $140,002.13 for costs incurred by B&M. See Filing No. 447-2, Ex. 2, Cottrell Supp. Decl., Amended Ex. A52, SWCK's Total Costs by Category and Detailed Summary of Costs. Co-class counsel Philip A. Downey has shown he performed 228.5 hours of work at $250 per hour and seeks fees in the amount of $55,755 and out-of-pocket costs in the amount of $2,068.73.⁵ Filing No. 440, Index of Evid., Ex. 1, Billing Statement: Ex. 2, Expense Statement.

Plaintiffs' counsel SWCK is a San Francisco, California law firm that specializes in class and collective action litigation in federal and state courts and a substantial number of the firm's class and collective action cases are wage and hour cases. Filing No. 442-1, Ex. A, Cottrell Decl. at 1, 10. B&M, based in Philadelphia, Pennsylvania, is a specialty labor and employment firm with 67 attorneys that specializes in class action litigation in federal and state courts. Filing No. 443-1, Ex. B, Carson Decl. at 1, Ex. B1, Firm Resume. Plaintiffs have shown that co-lead counsel have extensive experience litigating FLSA cases and have achieved substantial judgments and settlements against meatpacking companies in similar cases. Filing No. 442-1, Ex. A, Cottrell Decl. at 4, Exs. A63, A64, A65, A66; Filing No. 443-1, Ex. B, Carson Decl. at 1-2.

Defendant Farmland is represented by Jackson Lewis, LLP, an employment specialty law firm that employs over 700 attorneys at numerous offices nationwide. Filing No. 441-1, Plaintiffs' Memorandum at 61, 71. Jackson Lewis has an office in Omaha, Nebraska, but Farmland was primarily represented in this action by Jackson Lewis attorneys based in Atlanta, Georgia, and Greenville, South Carolina. Farmland was also represented by local counsel Baird Holm, an Omaha law firm that employs over 80 attorneys. Plaintiffs also submitted evidence purporting to show that few, if any, Omaha law firms litigate this type of case. Filing No. 443-7, Ex. D, Welsh Decl. at 2-3.

Plaintiffs have submitted affidavits showing that the hourly rate of partners in Atlanta law firms whose practices focus on labor and employment law vary substantially but generally range from $275 to $425 per hour for partners with 15-20 years of experience; $350 to $500 for partners with 20-25 years of experience; $425 to $575 for partners with 25-30 years of experience; and $600 and more for some partners with more than 30 years of experience. Filing No. 442-8, Index of Evid., Ex. E, Declaration of Hunter R. Hughes III at 3-4. The hourly rate for associate attorneys in Atlanta in the same practice area with 0-5 years of experience generally ranges from $200 to $300 per hour and $250 to $375 for associates with 5-10 years of experience and the Atlanta market rate for paralegals is generally between $125-$200. Id. at 4. Also, plaintiffs have shown that various firms in Chicago charge between $250 and $700 per hour for labor work by attorneys, depending upon the firm and the particulars of the individual attorney performing the work, and the market rate for paralegals in the Chicago market is over $125 per hour. Filing No. 443, Index of Evid., Exhibit F, Declaration of Ryan F.Stephan ("Stephan Decl."), Ex. F1, Stephan Decl. in Thomas v. Matrix Commc'n Servs., Inc., No. 10-cv-05093 (N.D. Ill.) at 2; Ex. F2 Stephan Decl. in Land v. Frontline Commc'ns, Inc., No. 10-cv-07640 (N.D. Ill) at 2. Plaintiffs have also shown that the Stephan Zouras Law firm in Chicago represents workers in class and collective actions regarding unpaid wage disputes throughout Illinois and across the United States and attorney Ryan Stephan's hourly rate of $450 to $500 per hour has been approved by courts overseeing his cases. Id., Ex. F, Stephan Decl. at 2; Exs. F1 and F2, Orders approving awards of attorney fees. Plaintiffs have shown the hourly rate of $450 to $500 is within the range of hourly rates charged by plaintiffs' attorneys in Chicago, Illinois, who specialize in handling wage and hour cases. See id., Ex. F at 2-3. Also, the hourly rate charged for Stephan Zouras associates is $250 to $350, which is within the range of reasonable hourly rates in the Chicago market. Id.

The record shows this action was filed in November of 2008. It has been pending for over four and a half years. There are over 450 total filings in this case. Over 30 depositions have been taken and four experts have been retained and deposed, requiring substantial travel. See Filing No. 441-1, Motion, Ex. 1, Memorandum of Law at 19-20. There have also been multiple site inspections, also requiring travel. Id. at 17-18. The parties have exchanged voluminous written discovery and there have been numerous discovery disputes. Id. at 7-15; see, e.g., Filing No. 405, Plaintiffs' Motion to Compel. Over the course of the litigation, Farmland moved to dismiss, vigorously opposed class certification, and moved to decertify the class. See Filing No. 364, Motion to decertify; Filing No. 408, Findings and Recommendation; Filing No. 413, Objection; and Filing No. 415, Memorandum andOrder. In addition, it filed for summary judgment on numerous issues, none successful. See Filing Nos. 105, 133, 137, 139, 141, Motions for Partial Summary Judgment; Filing Nos. 143, 165, 169, 179; Motions to Dismiss; Filing No. 175, Motion for summary judgment; Filing Nos. 208, 276, Memoranda and Orders. In all, Farmland filed ten motions for partial summary judgment seeking...