United States District Court, S.D. Mississippi, Southern Division
HENRY SANTINAC, on behalf of himself and those similarly situated PLAINTIFF
WORLDWIDE LABOR SUPPORT OF ILLINOIS, INC., a Mississippi Limited Liability Company, and WAYNE A. COOK, JR. DEFENDANTS
SECOND ORDER REQUIRING AFFIDAVITS AND ADDITIONAL
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT are [80, 84] Motions requesting approval of the
settlement filed by the parties to this FLSA collective
action. The Court required additional briefing and
information on the settlement by  Order dated January 13,
2017, specifically on the issue of attorney's fees. In
response, Plaintiffs' counsel has submitted its
Employment Contract, with no billing information or
affidavits regarding a reasonable hourly rate or otherwise.
As a result, while the Court is prepared to approve the
settlement as to the amount to be awarded to Plaintiffs, the
Court requires additional information before it can determine
the reasonableness of attorney's fees and costs, and will
not approve that portion of the settlement unless and until
it has sufficient information before it to do so.
FLSA claims can only be compromised after a court reviews and
approves the settlement. Lynn's Food Stores, Inc. v.
United States, 679 F.2d 1350, 1354 (11th Cir. 1982).
“[T]o fully discharge its duty to review and approve
[such settlements], a district court must assess the
reasonableness of the attorneys' fees.” See
Strong v. BellSouth Telecomm., Inc., 137 F.3d 844, 849
(5th Cir. 1998). In common fund cases like this one, courts
in this Circuit are permitted to use either the percentage
method or the lodestar method to calculate attorneys'
fees. Union Asset Mgmt. v. Dell, Inc., 669
F.3d 632, 644 (5th Cir. 2012). After utilizing the percentage
method, it is often helpful to perform a lodestar cross-check
“to avoid windfall fees, i.e., to ensure that the
percentage approach does not lead to a fee that represents an
extraordinary lodestar multiple.” In re Heartland
Payment Sys., Inc. Customer Data Sec. Breach Litig., 851
F.Supp.2d 1040, 1086 (S.D. Tex. 2012).
lodestar cross-check helps confirm that the attorneys'
fees calculated pursuant to the percentage method are
reasonable. Id. The cross-check involves calculation
of the lodestar, as well as consideration of the
Johnson factors. Strong, 137 F.3d at 850.
Those factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions involved; (3) the skill required
to perform the legal service properly; (4) the preclusion of
other employment by the attorney due to the acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client or
the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the undesirability of the case; (11) the
nature and the length of the professional relationship with
the client; and (12) awards in similar cases.
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974).
to the percentage method, the court awards a reasonable
percentage of the common fund to the attorneys. Dell,
Inc., 669 F.3d at 642-43. The court first determines the
actual monetary value conferred to the class by the
settlement. In re Heartland, 851 F.Supp.2d at 1075.
If an agreement is reached on the amount of a settlement fund
and a separate amount for attorney fees and expenses, . . .
the sum of the two amounts ordinarily should be treated as a
settlement fund for the benefit of the class, with the
agreed-on fee amount constituting the upper limit on the fees
that can be awarded to counsel.
Id. at 1072 (quoting Manual for Complex Litig. (4th)
§ 21.7 (2004)). After determining the value conferred on
the class, the court applies a benchmark percentage to this
value. Id. Finally, the court applies the
Johnson factors to determine whether the percentage
should be adjusted upward or downward. Id.
value conferred to the class here is $275, 000.00. The fees
requested total $95, 377.64, or approximately 34.68 percent
of the value conferred to the class. This percentage is
somewhat higher than the amount of attorney's fees
typically awarded in similar cases. See, e.g.,
Rodriguez v. Stage 3 Separation, LLC, No.
5:14-cv-00603-RP, 2015 WL 12866212, at *5 (W.D. Tex. Dec. 23,
2015) (“A review of Fifth Circuit precedent suggests a
benchmark fee of 30%.”); see also Manual for
Complex Litig. (4th) § 21.7 (2004) (“Attorney fees
awarded under the percentage method are often between 25% and
30% of the fund.”). Thus, the Court finds it necessary
to perform a lodestar cross-check, which includes application
of the Johnson factors to determine whether the
requested award is reasonable. However, the Court does not
have sufficient information to perform this analysis.
the lodestar method, the court first multiplies the
reasonable number of hours spent working on the case by the
reasonable hourly rate for the attorney to determine the
lodestar figure. Black v. SettlePou, P.C., 732 F.3d
492, 502 (5th Cir. 2013). “The party seeking
attorneys' fees must present an adequately documented
time record to the court. Using this time as a benchmark, the
court should exclude all time that is excessive, duplicative,
or inadequately documented.” Watkins v.
Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The party
seeking fees must demonstrate that the hours billed were
reasonable and that the lawyers exercised billing judgment by
writing off unproductive, excessive, or redundant work.
Black, 732 F.3d at 502.
counsel states that he “has expended over two hundred
and fifty (250) hours to date . . . .” (Supp. Joint
Mem. 15, ECF No. 84). He does not provide any information as
to his billing rate or the billing rate of other attorneys
and/or paralegals who have worked on the case. Nor is the
Court able to determine whether billing judgment was
utilized. The Court has not been provided any
information in the form of affidavits or otherwise regarding
a reasonable hourly rate. See Tollett v. City of
Kemah, 285 F.3d 357, 368 (5th Cir. 2002)
(“Generally, the reasonable hourly rate for a
particular community is established through affidavits of
other attorneys practicing there.”). In addition, no
breakdown of information has provided for the nearly $4, 000
in requested costs.
parties, citing Dell, 669 F.3d 632, argue that
“[a] stringent lodestar analysis to determine the
reasonableness of attorneys' fees is
not required by the Court in cases
such as this one.” (Supp. Joint Mem. 12, ECF No. 84)
(emphasis in original). However, Dell makes clear
that this is a choice for the Court, not counsel.
Furthermore, the Court is of the opinion that it does not
have enough information before it even to consider the
Johnson factors, which is a necessary part of its
review even if it employs solely the percentage method.
See Dell, 669 F.3d at 643 (“We join the
majority of circuits in allowing our district courts the
flexibility to choose between the percentage and lodestar
methods in common fund cases, with their analyses under
either approach informed by the Johnson
THEREFORE ORDERED AND ADJUDGED that the parties must comply
with the Court's previous  Order within fourteen (14)
days of the date of this Order. Otherwise, the Court will
enter an Order partially approving the settlement insofar as
the amount to be awarded to Plaintiffs, but ...