1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Cynthia Applebaum, Warren Black, 

Anita Matlock, Patrick Ridgeway, and 

William Sly, individually and on behalf 

of all others similarly situated,

Plaintiffs,

vs.

MGM Grand Detroit, LLC.,

Defendant.

Case No. 2:14-cv-13005-AC-MKM

Hon. Avern Cohn 

_______________________________________________________________________________________/

JOINT MOTION IN SUPPORT OF APPROVAL OF SETTLEMENT OF 

COLLECTIVE ACTION UNDER THE FLSA, CERTIFYING THE 

COLLECTIVE FOR PURPOSES OF SETTLEMENT, AND DIRECTING 

NOTICE TO THE COLLECTIVE 

Plaintiffs, by and through their undersigned counsel, individually

and on behalf of all others similarly situated, move for an order granting

approval to the class action settlement described in the Joint Stipulation 

Of Settlement and Release, attached hereto as Exhibit 1 (hereinafter

referred to as "Joint Stipulation"), as supported by the attached

Memorandum of Law and Class Counsel's Declaration, and further 

determining that:

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.196 Filed 04/19/16 Page 1 of 39
2

1. The terms and conditions of the proposed settlement between

the Plaintiff Class and Defendant defined and described in the Joint 

Stipulation of Settlement and Release and Exhibits are fair, reasonable, and

adequate.

2. That the form of the Notice of Settlement and the method of 

disseminating the Notice to the Collective, as described in the Joint Stipulation 

and Exhibits thereto is fair, reasonable and adequate to the Collective.

3. That the method of allocating a settlement award to each member 

of the Settlement Class is fair, reasonable and adequate.

4. That Class Representatives, Class Deponents and Class Participants 

defined in paragraph 12(g) should be awarded service awards for their time, 

effort and risks undertaken to represent the class and to secure the benefits for 

the entire class under the settlement.

5. That Class Counsel should be awarded the stated amount of fees 

and costs described in paragraph 14 of the Joint Stipulation of Settlement and 

Release, as fair and reasonable attorneys’ fees and costs, payable by Defendant, 

as compensation for their time, efforts, risks and expense in representing the 

Collective on a contingent basis and for securing the pool of benefits for the 

entire Collective under the Settlement;

6. That any objections to the settlement as outlined within the Joint 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.197 Filed 04/19/16 Page 2 of 39
3

Stipulation to the extent any exist, are without basis, and are not well founded, 

and should be overruled in their entirety;

7. For any other relief that is just and equitable in the circumstances.

8. Defendant consents to the relief requested herein.

9. This motion is based upon the court files, memoranda, and 

affidavits to be submitted and arguments of counsel.

By: /s/ Megan A. Bonanni P52079

Megan A. Bonanni P52079

Robert W. Palmer P31704

Pitt McGehee Palmer & Rivers, P.C.

117 W. Fourth Street, Suite 200

Royal Oak, MI 48067

(248) 398-9800

Attorneys for Plaintiffs

By: Elayna J. Youchah w/consent

Elayna J. Youchah, Bar No. 5837

youchahe@jacksonlewis.com

Jackson Lewis P.C.

3800 Howard Hughes Parkway, Suite 600

Las Vegas, Nevada 89169

(702) 921-2460

Attorneys for Defendant

Dated: April 13, 2016

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.198 Filed 04/19/16 Page 3 of 39
4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Cynthia Applebaum, Warren Black, 

Anita Matlock, Patrick Ridgeway, and 

William Sly, individually and on behalf 

of all others similarly situated,

Plaintiffs,

vs.

MGM Grand Detroit, LLC.,

Defendant.

Case No. 2:14-cv-13005-AC-MKM

Hon. Avern Cohn 

_______________________________________________________________________________________/

BRIEF IN SUPPORT OF APPROVAL OF SETTLEMENT OF COLLECTIVE 

ACTION UNDER THE FLSA, CERTIFYING THE COLLECTIVE FOR 

PURPOSES OF SETTLEMENT, AND DIRECTING NOTICE TO THE 

COLLECTIVE 

I. INTRODUCTION

1. This is a suit for alleged violation of the Fair Labor Standards Act

(“FLSA”). Although Defendant denies any and all liability, the parties have

agreed to a settlement, the terms of which are defined and described in the

Joint Stipulation and Exhibits.

Following an extensive investigation, partially-completed formal 

discovery and extensive arm’s-length negotiations, Plaintiffs, individually 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.199 Filed 04/19/16 Page 4 of 39
5

and on behalf of all others similarly situated, and Defendant MGM Grand 

Detroit has agreed, subject to Court approval, to resolve this wage and 

hour lawsuit on a collective-wide basis for significant monetary relief. The 

settlement satisfies the criteria for approval of a Fair Labor Standards Act 

(“FLSA”) collective action settlement because it resolves a bona-fide 

dispute, was reached after contested litigation, and was the result of 

arm’s-length settlement negotiations conducted by counsel well-versed in 

wage and hour law.

Accordingly, Plaintiffs respectfully request that the Court issue an 

order: (1) approving the $450,000 settlement as set forth in paragraph 

12(c) of the Joint Stipulation of Settlement and Release (“Joint 

Stipulation”) attached as Exhibit 1; approving the proposed Notice of 

Settlement (“Notices”) (attached as Exhibits 1(a) and 1(b) and Claim and 

Consent Form (attached as 1(c)) and direct their distribution; approving 

service awards of $7,500 each to the Class Representatives, $5,000 to the 

Class Deponents and $3,500 to the Class Participants as defined in 

paragraph 12(g) of the Joint Stipulation; approving Plaintiffs’ request for 

one-third of the settlement fund for attorneys’ fees and an additional 

reimbursement of costs and litigation expenses; and incorporating the 

terms of the Settlement Agreement. 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.200 Filed 04/19/16 Page 5 of 39
6

II. PERTINENT FACTS

This matter was originally filed on August 1, 2014. (Dkt. 1) The 

Complaint sets forth a detailed recitation of factual and legal allegations

pertaining to FLSA claims and the basis for collective action certification

under Section 216(b). There are 5 named Plaintiffs. Throughout the course 

of this litigation, 32 other individuals opted in to the litigation.

Prior to engaging in full-blown merits discovery, counsel for the

respective parties began discussing the merits of the case and certification

difficulties for each side. The Parties agreed to exchange extensive

discovery documents and submitted the case to facilitation with a nationally 

recognized FLSA facilitator. While the initial facilitation did not resolve the 

matter, it did succeed at narrowing the issues for litigation. 

The parties thereafter engaged in discovery. Defendant took the 

depositions of 11 Plaintiffs. The parties also exchanged relevant documents, 

including providing answers to multiple sets of interrogatories and 

documents responsive to numerous requests for the production of 

documents. Defendant produced payroll data as well as numerous policies 

and other relevant company documents. The parties continued to engage in 

settlement discussions throughout discovery.

After a full review of this information and open and full debate over

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.201 Filed 04/19/16 Page 6 of 39
7

the legal and factual issues, the Parties, who have been represented by

counsel at all times, agreed that the negotiated terms of the settlement

represent a fair, reasonable, and just compromise of disputed issues.

After the general terms of the settlement were reached, the Parties

began the process of drafting comprehensive settlement agreements that 

would be entered into between each of the named and opt-in Plaintiffs and

the Defendant. With compromise from both sides, the settlement

agreements now before the Court for approval were reached.

The negotiations leading to this settlement were adversarial, noncollusive, and conducted at arms’ length. The Parties share an interest in fully

and finally resolving the issues raised in this action. Because the Parties

recognized the expense and risks associated with prosecution and defense

through trial and any possible appeal, as well as the risk of uncertainty of

the outcome inherent in any litigation, they agreed to be bound by the 

settlement agreements which they now ask this Court to approve. The

Parties have conditioned the overall settlement agreements upon the

Court’s approval of all their terms.

III. SUMMARY OF THE SETTLEMENT TERMS

A. Stipulation to Class Certification

Solely for the purpose of settling this case, the Parties stipulate and 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.202 Filed 04/19/16 Page 7 of 39
8

agree that the requisites for establishing class certification with respect 

to the Settlement Class have been and are met. 

B. The Settlement Fund

The Joint Stipulation of Settlement and Release establishes a 

maximum settlement fund of $450,000 to settle claims against Defendant 

(the “Fund”). The Fund covers Eligible Settlement Class Members’ awards, 

any Court-approved service awards to Plaintiffs and Opt-In Plaintiffs, any 

Court-approved attorneys’ fees and costs, and the settlement claims 

administrator’s (“Settlement Administrator’s”) fees and costs. 

C. Eligible Employees

Eligible Settlement Class Members are any and all current and 

former Floor Supervisors and Assistant Floor Supervisors employed by 

Defendant at any time during the class period. Within 10 days of the

Court’s approval of the settlement, Defendant will provide the Settlement 

Administrator with the last known contact information for all eligible 

Settlement Class Members. (Exhibit 1, ¶ 13) The Proposed Notice alerts 

eligible Settlement Class Members to the terms of the settlement, their 

individual estimated settlement allocation, the scope of the release, and 

also informs them that they are required to properly complete and timely 

return the Claim and Consent Form attached thereto if they wish to be 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.203 Filed 04/19/16 Page 8 of 39
9

included in the settlement and receive payment. See Exhibit 2 (Proposed 

Notice), Class members will have 30 calendar days from the mailing date 

of the Notice within which to postmark their Claim and Consent Form. (Id

¶ 12(i)).

D. Release

A failure to submit a valid and timely Claim and Consent Form does 

not affect exclusion from the Settlement Class. Instead, all Class Members 

shall remain members of the Settlement Class and will be bound by all 

terms of the Settlement and any Final Order and Judgment entered by the 

Court unless they have excluded themselves from the Settlement Class in 

the manner provided in the Joint Stipulation of Settlement and Release. Id 

¶ 12(i).

E. Allocation Formula

Eligible Settlement Class Members will be eligible for a settlement 

payment pursuant to an allocation formula based on the number of shifts 

they worked during the relevant period. Id.¶ 12(d). The total settlement 

amount was attained by determining the total number of shifts worked by the 

Settlement Class over the Class Period. Each Settlement Class Member will 

receive a proportionate amount of the funds available to be distributed to the 

Settlement Class based on the percentage of shifts each worked as compared 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.204 Filed 04/19/16 Page 9 of 39
10

with the total amount of shifts worked by the entire Settlement Class. Based on 

this formula, because there were 82,710 shifts worked by the Settlement Class 

over the Class Period, each Authorized Class Member will receive 

approximately $1.63 per shift. Id. Each Settlement Class Members’ payment 

from the Net Settlement Amount and will be allocated and paid as follows: onethird of his/her Settlement Award will be allocated to alleged unpaid wages for 

which IRS Forms W-2 will issue, one-third of his/her Settlement Award will be 

allocated to alleged unpaid penalties, and the other one-third of his/her 

Settlement Award will be allocated to alleged unpaid interest. The unpaid 

penalties and unpaid interest will be reported on IRS Forms 1099-MISC will 

issue. Id ¶ 12(e).

F. Service Awards

The Settlement Agreement provides that, with Court approval, the 

Class Representatives, Class Deponents and Class Participants will receive

service awards ranging from $3,500- $7,500 in recognition of their 

assistance rendered in obtaining the benefits of the settlement for the 

Collective as well as the risks they took to do so. Id. ¶ 12(g). As set forth 

in the Joint Stipulation, Class Representative, Class Deponents and Class 

Participants assisted counsel in the investigation of Plaintiffs’ claims, 

produced documents in response to Defendant’s document requests, 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.205 Filed 04/19/16 Page 10 of 39
11

attended meetings, and provided information. Additionally, Class 

Representatives and Class Deponents worked with Plaintiffs’ Counsel to 

prepare for their depositions and sat for full-day depositions. Id ¶ 12(g).

G. Settlement Claims Administration

The parties have retained a wage and hour claims administrator, to 

serve as the Settlement Administrator. The Settlement Administrator’s 

fees of $7,500 will be paid from the Settlement Fund. Exhibit 1(Joint 

Stipulation) ¶ 11.

H. Attorneys’ Fees and Litigation Costs

Subject to Court approval, Plaintiffs’ Counsel will receive $150,000

(one-third of the settlement fund of $450,000) as attorneys’ fees and

reimbursement of actual reasonable out-of-pocket costs and expenses. Id. 

¶ 14. As part of the Settlement, Defendant has agreed not to object to an 

award for fees and costs up to this amount.

IV. ARGUMENT

2. A. Standard ofReview

As a general rule, “court approval is required for the settlement of

claims for back wages or liquidated damages under the FLSA.” Arrington v.

Mich. Bell Tel. Co., 2012 U.S. Dist. LEXIS 157362, *1 (E.D. Mich. Nov. 2, 2012)

(J. Lawson) (citing Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350,

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.206 Filed 04/19/16 Page 11 of 39
12

1354 (11th Cir. 1982). Therefore, “[w]hen employees bring a private action

for back wages under the FLSA, and present to the district court a proposed

settlement, the district court may enter a stipulated judgment after

scrutinizing the settlement for fairness. If the settlement is a reasonable

compromise over issues that are actually in dispute, the Court may approve

the settlement in order to promote the policy of encouraging settlement of 

litigation.” Arrington, 2012 U.S. Dist. LEXIS 157362, *2 (internal citations and

quotations omitted); Lynn's Food Stores, Inc. v. United States, 679 F.2d at

1354.

Courts often draw on Rule 23 case law to guide them in reviewing and

approving FLSA settlements. The Sixth Circuit has identified seven factors

that should aid courts in the determination of whether a proposed FLSA

settlement is fair, reasonable, and adequate:

1. (1) the risk of fraud or collusion; (2) the complexity,

expense, and likely duration of the litigation; (3) the

amount of discovery engaged in by the parties; (4) the

likelihood of success on the merits; (5) the opinions of

class counsel and class representatives; (6) the

reaction of absent class members; and (7) the public

interest.

Arrington, 2012 U.S. Dist. LEXIS 157362, *2-3; see also Crawford v.

Lexington-Fayette Urban Cnty. Gov't, CIV. A. 06-299-JBC, 2008 WL 4724499,

at *3 (E.D. Ky. Oct. 23, 2008) (citing Int'l Union, United Auto., Aerospace, and

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.207 Filed 04/19/16 Page 12 of 39
13

Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 631 (6th

Cir. 2007). The above list is not exhaustive and courts do not necessarily

apply all of the factors; rather, the factors are guideposts used to determine

the fairness of a proposed settlement. “A court applying these factors must

do so in the context of the actual settlement.” Arrington, 2012 U.S. Dist. LEXIS

157362, *3.

1. The Absence of Fraud or Collusion in the Settlement

In the instant case, there is a bona fide dispute over whether

Defendant violated the FLSA. Plaintiffs allege Defendant violated the

FLSA because they failed to pay Plaintiffs overtime. Defendant denies all

such claims.

As is evident from the amount to be paid to Plaintiffs in this

settlement, it is clear there was no fraud or collusion. The settlement will

provide Settlement Class Members with substantial awards and will

eliminate the risks and costs both sides would bear if this litigation

continued to resolution on the merits. The Parties exchanged hundreds of

documents and other data to educate each other about their position. In

agreeing upon the proposed settlement, the Parties had sufficient

information and conducted an adequate investigation to allow them to make

an educated and informed analysis and conclusion.

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.208 Filed 04/19/16 Page 13 of 39
14

2. Complexity, Expense, and Likely Duration ofthe

Litigation

The complexity, expense, and length of continued litigation militate in

favor of this settlement. Both sides acknowledge that the Parties’ respective

positions were substantially complicated and uncertain due to numerous

factual disputes and legal theories. Should this case continue, the Court will

be required to rule on pre-discovery motions such as whether Defendant is 

entitled to credit for breaks, including meal breaks.

On the other hand, if Plaintiffs ultimately prevailed at trial, Defendant

would be faced with the prospect of a verdict against it and the obligation

to pay Plaintiffs’ attorneys’ fees and costs anticipated to be in excess of 

$600,000. If Defendant ultimately prevailed, Plaintiffs face dismissal of their

claims and no recovery.

In light of the foregoing, the Parties agree that either outcome is

possible in this litigation. For these reasons, this settlement is a reasonable

means for the Parties to minimize future risks and litigation costs.

3. Amount of Discovery Engaged In By the Parties

Formal discovery took place over the course of several months. The

parties exchanged numerous documents and other data relevant to

Defendant’s pay practices, payroll records and policies. All Plaintiffs 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.209 Filed 04/19/16 Page 14 of 39
15

provided Defendant with answers and documents in response to extensive 

Interrogatories and Requests for the Production of Documents. Each party 

spent considerable time and effort in the compilation of damage 

assessments for each Plaintiff, which required an analysis of company data 

related to hours worked as well as determining the proper formula for 

overtime calculation to apply and further to assess whether there were any 

appropriate credits that should be applied which would have the effect of 

offsetting any overtime that may be due any Settlement Class Member. For 

this reason, the Parties had several meetings specifically related to what 

assumptions should be made with regard to the calculation of overtime. The

Parties reviewed this information, shared it with their respective clients,

had discussions about it, and ultimately used it to evaluate the merits of their

respective claims and defenses. One of the driving factors in this settlement

was the desire to settle the case prior to incurring f u r t h e r extensive

attorneys’ fees and costs associated with continuing with formal discovery 

and motion practice.

4. The Likelihood of Success on the Merits

Plaintiffs’ likelihood of success on the merits and the amount they

would be awarded is uncertain, further suggesting that this settlement is fair

and appropriate. Plaintiffs assert, and Defendant denies, that they are owed

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.210 Filed 04/19/16 Page 15 of 39
16

compensation due to Defendant’s alleged violations of the FLSA. The range

of possible recovery by Plaintiffs is open to dispute. Even if Plaintiffs

succeed on the merits of their claims, which would require substantial

additional time and an exercise of resources by both Parties, the specific

amount of their recovery is uncertain. Thus,this proposed settlementis a fair

and reasonable settlement in relation to the potential risks and recovery in

this case.

5. The Opinions of Class Counsel and the Class

Representatives

There are 5 named Plaintiffs and 32 opt-in Plaintiffs in this litigation. 

Plaintiffs’ counsel has met with the named Plaintiffs and opt-in Plaintiffs 

wherein the specific terms of the settlement were discussed. Plaintiffs’

counsel, the 5 named Plaintiffs and 32 opt-ins are of the opinion that this

proposed settlement is a fair and reasonable compromise of this dispute. 

This constitutes approximately 30% of the Settlement Class.

6. The Public Interest

The public interest is served by the proposed settlement as it serves

the purpose and intent of Congress in enacting the FLSA—“to raise

substandard wages and to give additional compensation for overtime work 

... thereby helping to protect this nation ‘from the evils and dangers

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.211 Filed 04/19/16 Page 16 of 39
17

resulting from wages too low to buy the bare necessities of life and from

long hours of work injurious to health.’” U.S. v. Rosenwasser, 323 U.S. 360, 361

(1945)(quoting Sen. Rep. No. 884 (75th Conf., 1st Sess.)). The settlement also 

serves the purpose of ensuring “just, speedy, and inexpensive” resolution of 

this action. Fed R. Civ. Pro.1.

B. The Settlement Is Fair and Reasonable and Should Be 

Approved

Courts approve FLSA settlements when they are reached as a result 

of contested litigation to resolve bona fide disputes. See Lynn’s Food Stores, 

Inc. v. United States, 679 F.2d 1350, 1355 (11th Cir. 1982); Wade v. Werner 

Trucking Co., No. 10 Civ. 270, 2014 WL 2535226, at *1 (S.D. Ohio June 5, 

2014); Bartlow v. Grand Crowne Resorts of Pigeon Forge, No. 11 Civ. 400, 

2012 WL 6707008, at *1-2 (E.D. Tenn. Dec. 26, 2012).1

Collective actions under Section 216(b) of the FLSA require workers 

 

1 “Typically, courts regard the adversarial nature of a litigated FLSA case 

to be an adequate indicator of the fairness of the settlement.” Bozak v. 

FedEx Ground Package Sys., Inc., No. 11 Civ. 738, 2014 WL 3778211, at *3 

(D. Conn. July 31, 2014); Dixon v. Zabka, No. 11 Civ. 982, 2013 WL 

2391473, at *2 (D. Conn. May 23, 2013). If the proposed settlement 

reflects a reasonable compromise over contested issues, the court should 

approve the settlement. Lynn’s Food Stores, 679 F.2d 1354; Gentrup v. 

Renovo Servs., LLC, No. 07 Civ. 430, 2011 WL 2532922, at *2 (S.D. Ohio June 

24, 2011); Crawford v. Lexington-Fayette Urban Cnty. Gov’t, No. 06 Civ. 299, 

2008 WL 4724499.

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.212 Filed 04/19/16 Page 17 of 39
18

to affirmatively opt-in to the litigation, unlike in a Federal Rule of Civil 

Procedure 23 Collective action. See Genesis Healthcare Corp. v. Symczyk, 

133 S. Ct. 1523, 1529 (2013) (“Rule 23 actions are fundamentally different 

from collective actions under the FLSA.”); O’Brien v. Ed Donnelly Enters., 

Inc., 575 F.3d 567, 584 (6th Cir. 2009) (“While Congress could have 

imported the more stringent criteria for Collective certification under Fed. 

R. Civ. P. 23, it has not done so in the FLSA.”); Pritchard v. Dent Wizard Int’l 

Corp., 210 F.R.D. 591, 594 (S.D. Ohio 2002) (“[I]n an FLSA “opt-in” 

collective action the requirements need not be strictly observed because 

there are no absent Class Members for the court to protect.”). Because, 

under the FLSA, “parties may elect to opt in but a failure to do so does not 

prevent them from bringing their own suits at a later date,” McKenna v. 

Champion Int’l Corp., 747 F.2d 1211, 1213 (8th Cir. 1984), abrogated by 

Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), FLSA collective 

actions do not implicate the same due process concerns as Rule 23 actions, 

see Thompson v. Bruister & Assocs., Inc., 967 F. Supp. 2d 1204, 1222 (M.D. 

Tenn. Aug. 23, 2013); Bozak, 2014 WL 3778211, at *3. Accordingly, the 

exacting standards for approval of a Collective action settlement under 

Rule 23 do not apply to an FLSA settlement under the collective action 

provisions of 29 U.S.C. § 216(b) at *9 (E.D. Ky. Oct. 23, 2008). 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.213 Filed 04/19/16 Page 18 of 39
19

Furthermore, “settlement is the preferred means of resolving litigation.”

Crawford, 2008 WL 4724499, at *9 (FLSA collective action).

The FLSA settlement in this case meets the standard for approval. 

The settlement was the result of vigorously contested litigation with 

substantial discovery, including depositions of all five Named and four 

Opt-In Plaintiffs, extensive discovery and exchange of relevant data and 

arm’s-length negotiations. Bonanni Declaration attached as Exhibit 2. 

Recognizing the uncertain legal and factual issues involved, the parties 

reached the settlement after private mediation before a nationally 

recognized and experienced mediator. Exhibit 2 ¶ 21. At all times during 

the settlement negotiation process, negotiations were conducted at arm’slength. Id. ¶ 34. The settlement amount is substantial in light of the 

overtime actually worked by Floor and Assistant Floor Supervisors.

The proposed allocation of the settlement is also reasonable. It 

reflects the proportion of damages owed to each Eligible Settlement Class 

Member based the number of overtime shifts he or she worked for 

Defendant, which is a reasonable approximation of each Eligible 

Settlement Class Member’s damages. Exhibit 1 ¶ 12(d); see Hens v. 

Clientlogic Operating Corp., No. 05 Civ. 381S, 2010 WL 5490833, at *2 

(W.D.N.Y. Dec. 21, 2010) (allocation formula based on each plaintiff’s 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.214 Filed 04/19/16 Page 19 of 39
20

length of service was equitable and reasonable); Crawford, 2008 WL 

4724499, at *10 (approving allocation plan showing “that the plaintiffs 

will receive compensation based on the character of their claims and the 

amount of time they have been employed by the defendant”). Moreover, 

“[t]he endorsement of the parties’ counsel is entitled to significant 

weight.” UAW v. Gen. Motors Corp., No. 05 Civ. 73991, 2006 WL 891151, at 

*18 (E.D. Mich. Mar. 31, 2006).

The Court should also approve the Proposed Notices and the Claim 

and Consent Form attached thereto. See Exhibits 1(a)-(c)(Proposed 

Notice). The Proposed Notice sufficiently informs Eligible Settlement 

Class Members of the terms of the settlement, including the allocation 

formula, the estimated amount to which they are entitled, the opt-in 

process, the scope of the release, and the request for attorneys’ fees and 

costs. Id.; see also Wade, 2014 WL 2535226, at *1 (approving “Settlement 

Notice and Option Form proposed by the Parties” as “fully and accurately 

inform[ing] the FLSA Collective Class Members of all material elements of 

the Litigation and the Agreement”); Gentrup, 2011 WL 2532922, at *3 

(same); see also Bozak, 2014 WL 3778211, at *3 (approving FLSA notice 

that provides “notice to the Eligible Settlement Class Members of the 

terms of the Settlement and the options facing the Settlement Collective”).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.215 Filed 04/19/16 Page 20 of 39
21

C. The Service Awards to the Named and Opt-In Plaintiffs 

Should Be Approved As Fair and Reasonable

Plaintiffs’ request for approval of a service award of $7,500 each to 

the Class Representatives $5,000 to the Class Deponents and $3,500 to 

the Class Participants as defined in paragraph 12(g) of the Joint 

Stipulation is fair and reasonable. “[C]lass representatives who have had 

extensive involvement in a . . . litigation deserve compensation above and 

beyond amounts to which they are entitled to by virtue of Class 

Membership alone.” Dallas v. Alcatel-Lucent USA, Inc., No. 09 Civ. 14596, 

2013 WL 2197624, at *10 (E.D. Mich. May 20, 2013); accord Date v. Sony 

Elecs., Inc., No. 07 Civ. 15474, 2013 WL 3945981, at *13 (E.D. Mich. July 

31, 2013) (awarding service award in common fund case for, inter alia, 

Collective representative’s “responding to discovery and sitting for his 

deposition”) (citation omitted); see also Griffin v. Flagstar Bancorp. Inc., 

No. 10 Civ. 10610, 2013 WL 6511860, at *9 (E.D. Mich. Dec. 12, 2013) 

(stating that service “awards have been approved by the Sixth Circuit”); In 

re Packaged Ice Antitrust Litig., No. 98 MDL 1952, 2012 WL 5493613, at *9 

(E.D. Mich. Nov. 13, 2012).

Courts acknowledge that named plaintiffs in collective actions play 

a crucial role in bringing justice to those who would otherwise be hidden 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.216 Filed 04/19/16 Page 21 of 39
22

from judicial scrutiny. See, e.g., In re Packaged Ice Antitrust Litig., 2012 WL 

5493613, at *9 (service awards are “well deserved” when Collective 

representative spent “time and effort . . . all to the general benefit of the 

Collective”) (citing In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 536 

(E.D. Mich. Oct. 10, 2003) (service awards “deserve[d]” when named 

plaintiffs “devoted a significant amount of time to the prosecution of this 

matter for the benefit of absent Class Members”)); Aros v. United Rentals, 

Inc., Nos. 10 Civ. 73, et al., 2012 WL 3060470, at *3 (D. Conn. July 26, 

2012); Clark, 2010 WL 1948198, at *9; Parker v. Jekyll & Hyde Entm’t 

Holdings, L.L.C., No. 08 Civ. 7670, 2010 WL 532960, at *1 (S.D.N.Y. Feb. 9, 

2010) (“Enhancement awards for Collective representatives serve the

dual functions of recognizing the risks incurred by named plaintiffs and 

compensating them for their additional efforts.”); Velez v. Majik Cleaning 

Serv., No. 03 Civ. 8698, 2007 WL 7232783, at *7 (S.D.N.Y. June 25, 2007) 

(“in employment litigation, the plaintiff is often a former or current 

employee of the defendant, and thus, by lending his name to the litigation, 

he has, for the benefit of the Collective as a whole, undertaken the risk of 

adverse actions by the employer or co- workers”) (internal quotes and 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.217 Filed 04/19/16 Page 22 of 39
23

citation omitted);2

Incentive awards are within the discretion of the court. See Dallas, 

2013 WL 2197624, at *10-11; Date, 2013 WL 3945981, at *13; see also 

Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005) 

(“Incentive awards are not uncommon in Collective action cases and are 

within the discretion of the court”; Incentive “awards are particularly 

appropriate in the employment context.”). 

In examining the reasonableness of service awards to plaintiffs, 

courts consider: (1) the actions they took to protect the interests of 

Collective or collective action members, and whether those actions 

resulted in substantial benefit to Collective or collective action members; 

(2) the personal risk they incurred; and (3) the amount of time and effort 

they spent in pursuing the litigation. See, e.g., Bert v. AK Steel Corp., No. 02 

Civ. 467, 2008 WL 4693747, at *3 (S.D. Ohio Oct. 23, 2008); In re Skechers 

 

2 See also Nantiya Ruan, Bringing Sense to Incentive Payments: An 

Examination of Incentive Payments to Named Plaintiffs in Employment 

Discrimination Collective Actions, 10 Emp. Rts. & Emp. Pol’y J. 395 (2006) 

(discussing the importance of aggregation of claims in the prosecution of 

civil and wage and hour rights); see also Hadix v. Johnson, 322 F.3d 895, 

897 (6th Cir. 2003) (“[I]ncentive awards are efficacious ways of 

encouraging members of a Collective to become Collective representatives 

and rewarding individual efforts taken on behalf of the Collective.”).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.218 Filed 04/19/16 Page 23 of 39
24

Toning Shoe Products Liab. Litig., Nos. 11 MD 2308, et al., 2013 WL 

2010702, at *14 (W.D. Ky. May 13, 2013); see also Dallas, 2013 WL 

2197624, at *10 (in common fund cases, Collective representatives 

“deserve compensation above and beyond amounts to which they are 

entitled to by virtue of Class Membership alone”); Lonardo v. Travelers 

Indem. Co., 706 F. Supp. 2d 766, 787 (N.D. Ohio 2010) (same). Here, 

Plaintiffs satisfy all three factors.

First, the Class Representatives, Class Deponents and Class 

Participants each took substantial actions to protect the interests of 

potential collective action members, and those actions resulted in a 

substantial benefit to those potential collective action members. As 

discussed in greater detail in paragraph 12(g) of the Joint Stipulation, each 

participated in varying levels of substantial pre-suit investigation, 

including mediation and strategy meetings, provided documents crucial 

to establishing Plaintiffs’ claims and responded to Defendant’s discovery 

requests. Class Representative and Deponents also prepared and sat for 

full-day depositions. See Exhibit 2 ¶ 42-43; see also Date, 2013 WL 

3945981, at *13 (awarding service award in common fund case for, inter 

alia, Collective representative’s “responding to discovery and sitting for 

his deposition”); Bert, 2008 WL 4693747, at *3 (substantially same); see 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.219 Filed 04/19/16 Page 24 of 39
25

also Frank, 228 F.R.D. at 187 (recognizing the important role that 

Collective representatives play as the “primary source of information 

concerning the claims[,]” including by responding to counsel’s questions 

and reviewing documents).3

These actions have resulted in substantial benefit to the Collective, 

leading to an overall gross recovery of $450,000 which results in an 

estimated range of awards from $122 to $1,400 for Eligible Settlement 

Collective. Exhibit 2 ¶ 39). see Johnson v. Midwest Logistics Sys., Ltd., No. 

11 Civ. 1061, 2013 WL 2295880, at *5-6 (S.D. Ohio May 24, 2013) (in FCRA 

case, approving service award of $12,500 for named plaintiff when other 

Class Members recovery would range from $260 to $1,000, out of gross 

settlement fund of $452,380). 

Second, Plaintiffs and Opt-In Plaintiffs undertook substantial direct 

and indirect risk. The Named Plaintiffs agreed to bring the action in their 

name, to draft and sign declarations on penalty of perjury, to be deposed, 

 

3 See also Sewell, 2012 WL 1320124, at *14 (“[F]ormer employees [] fac[ed] 

[sic] potential risks of being blacklisted as ‘problem’ employees.”); Guippone v. 

BH S&B Holdings, No. 09 Civ. 1029, 2011 WL 5148650, at *7 (S.D.N.Y. Oct. 28, 

2011) (“Today, the fact that a plaintiff has filed a federal lawsuit is searchable 

on the internet and may become known to prospective employers when 

evaluating the person.”); Parker, 2010 WL 532960, at *1 (“[F]ormer employees 

put in jeopardy their ability to depend on the employer for references in 

connection with future employment.”).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.220 Filed 04/19/16 Page 25 of 39
26

and to testify if there was a trial. Exhibit 2 ¶ 42-43. Opt-In Plaintiffs 

similarly agreed to be party plaintiffs in the case, to be deposed, and to 

testify if there was a trial. Id. In so doing, Plaintiffs and Opt-In Plaintiffs 

assumed the risk of retaliation and blacklisting, particularly as they are 

still employed with Defendant. Id.; see Frank, 228 F.R.D. at 187 (Incentive 

“awards are particularly appropriate in the employment context . . . 

[where] the plaintiff is often a former or current employee of the 

defendant, and thus, by lending his name to the litigation, he has, for the 

benefit of the Collective as a whole, undertaken the risk of adverse actions 

by the employer or co-workers”); see also Bozak, 2014 WL 3778211, at *5 

(lead plaintiff “assumed risk of retaliation”); Silberblatt v. Morgan Stanley, 

524 F. Supp. 2d 425, 435 (S.D.N.Y. 2007) (“A Collective representative who 

has been exposed to a demonstrable risk of employer retaliation or whose 

future employability has been impaired may be worthy of receiving an 

additional payment, lest others be dissuaded.”); Velez, 2007 WL 7232783, 

at *7 (observing that named plaintiffs “exposed themselves to the 

prospect of having adverse actions taken against them by their former 

employer and former co-workers”).4

 

4 Plaintiffs acknowledge that no adverse action was taken by Defendant 

against any person arising out of their participation in this case. Even where 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.221 Filed 04/19/16 Page 26 of 39
27

Third, Plaintiffs and Opt-In Plaintiffs spent a significant amount of 

time and effort in pursing this litigation on behalf of the eligible 

Settlement Class Members. This included the time and effort they 

expended in pre-litigation assistance to Plaintiffs’ Counsel in investigating 

the claims brought, the time and effort they spent in assist in the 

preparation and review of the complaint, providing declarations in 

support of Plaintiffs’ collective certification motion, responding to 

Defendant’s document requests, and preparing and sitting for full-day 

depositions. Exhibit 2 ¶ 42-43; Date, 2013 WL 3945981, at *13; Bert, 2008 

WL 4693747, at *3.

Additionally, the amount of the requested service awards is 

reasonable and consistent with awards that have been granted in 

 

there is not a record of actual retaliation, collective representatives merit 

recognition for assuming the risk of retaliation for the sake of absent Class 

Members. See Sewell v. Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL 

1320124, at *14 (S.D.N.Y. Apr. 16, 2012) (“Plaintiffs litigating cases in an 

employment context face the risk of subjecting themselves to adverse 

actions by their employer.”); Guippone, 2011 WL 5148650, at *7 (“Even 

where there is not a record of actual retaliation, notoriety, or personal 

difficulties, Collective representatives merit recognition for assuming the 

risk of such for the sake of absent Class Members.”); Frank, 228 F.R.D. at 

187-88 (“Although this Court has no reason to believe that Kodak has or 

will take retaliatory action towards either Frank or any of the plaintiffs in 

this case, the fear of adverse consequences or lost opportunities cannot be 

dismissed as insincere or unfounded.”).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.222 Filed 04/19/16 Page 27 of 39
28

employment Collective and collective actions in this Circuit. See, e.g., 

Swigart v. Fifth Third Bank, No. 11 Civ. 88, 2014 WL 3447947, at *7 (S.D. 

Ohio July 11, 2014) (“The modest Collective representative award 

requests of $10,000 to each of the two Collective Representatives have 

been tailored to compensate each Collective Representative in proportion 

to his or her time and effort in prosecuting the claims asserted in this 

[FLSA] action.”); Bert, 2008 WL 4693747, at *1, *3 (finding service award 

of $10,000 to five Collective representatives was “rather modest” and “fair 

and reasonable” in employment discrimination case). In FLSA cases in this 

Circuit and elsewhere, courts consistently approve service awards that 

are larger than what Plaintiffs request here.5

D. Attorneys’ Fees and Costs Should be Approved as Fair and

Reasonable

 

5 See Swigart, 2014 WL 3447947, at *7 ($10,000); see also Toure v. 

Amerigroup Corp., No. 10 Civ. 5391, 2012 WL 3240461, at *6 (E.D.N.Y. Aug. 

6, 2012) (approving awards of $10,000 for each Collective 

representative); Lovaglio v. W & E Hospitality, Inc., No. 10 Civ. 7351, 2012 

WL 2775019, at *4 (S.D.N.Y. July 6, 2012) (approving service awards of 

$10,000 for each named plaintiff); Alli v. Boston Mkt. Corp., No. 10 Civ. 

00004, 2012 WL 1356478, at *3 (D. Conn. Apr. 17, 2012) (approving 

service awards of $12,000 for named plaintiffs); Sewell, 2012 WL 

1320124, at *14-15 (approving service payments of $10,000 and 

$15,000); Willix v. Healthfirst, Inc., No. 07 Civ. 1143, 2011 WL 754862, at 

*7 (E.D.N.Y. Feb. 18, 2011) (approving awards of $30,000, $15,000, and 

$7,500 to Collective representatives and opt- ins); Khait v. Whirlpool Corp., 

No. 06 Civ. 6381, 2010 WL 2025106, at *9 (E.D.N.Y. Jan. 20, 2010) 

(approving $15,000 and $10,000 to named plaintiffs).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.223 Filed 04/19/16 Page 28 of 39
29

The FLSA provides for reasonable attorneys’ fees and costs. See 29 

U.S.C. § 216(b) (“The court in [an action to recover under FLSA] shall, in 

addition to any judgment awarded to the plaintiff or plaintiffs, allow a 

reasonable attorney’s fee to be paid by the defendant, and costs of the 

action.”); accord United Slate, Tile & Composition Roofers, Damp & 

Waterproof Workers Ass’n, Local 307 v. G & M Roofing & Sheet Metal Co., 

Inc., 732 F.2d 495, 501 (6th Cir. 1984). Defendant has agreed not to object 

to any request by Plaintiff for an award of attorney fees up to $150,000, 

or one-third of the settlement for their attorneys’ fees, as well as Plaintiffs’ 

reasonable costs which to date total $12,500. Exhibit 1 (Joint Stipulation) 

¶11.6

“The purpose of the FLSA attorney’s fees provision is to ‘insure 

effective access to the judicial process by providing attorney fees for 

prevailing plaintiffs with wage and hour grievances.’” Farmer v. Ottawa 

Cnty., 211 F.3d 1268, 2000 WL 420698, at *7 (6th Cir. 2000) (citing United 

Slate, 732 F.2d at 502); see Wilson v. D & N Masonry, Inc., No. 12 Civ. 922, 

 

6 Defendant does not object to the fee request by counsel for Plaintiffs. 

Consistent with the Stipulation and Settlement, Defendant states that it does 

not object to a reasonable fee and costs award that does not exceed the sum of 

$150,000 in fees and $12,500 in costs.

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.224 Filed 04/19/16 Page 29 of 39
30

2014 WL 1789136, at *1 (S.D. Ohio May 5, 2014) (“The purpose of the 

FLSA attorney fees provision” is “to insure effective access to the judicial 

process by providing attorney fees for prevailing plaintiffs with wage and 

hour grievances.”) (citing district court citing Fegley v. Higgins, 19 F.3d 

1126, 1134 (6th Cir. 1994)) (internal quotes omitted); Fisher v. Stolaruk 

Corp., 648 F. Supp. 486, 487 (E.D. Mich. 1986) (“The purpose of allowing 

an award of attorney’s fees under FLSA cases is to encourage employees 

to vindicate what Congress considers an important right to receive wages 

designed to ensure a minimum standard of living.”).7

 

7 See also Bozak, 2014 WL 3778211, at *6 (S.D.N.Y. Jan. 7, 2010) (“Fee 

awards in wage and hour cases are meant to encourage members of the 

bar to provide legal services to those whose wage claims might otherwise 

be too small to justify the retention of able, legal counsel.”) (internal 

quotes and citation omitted). Adequate compensation for attorneys who 

protect wage and hour rights furthers the remedial purposes of the FLSA. 

See Fegley, 19 F.3d at 1134 (“The purpose of the FLSA attorney fees 

provision is “to insure effective access to the judicial process by providing 

attorney fees for prevailing plaintiffs with wage and hour grievances.”) 

(citation and internal quotation marks omitted); Braunstein v. E. 

Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978), cert. denied, 441 

U.S. 944 (1979) (observing that “broad remedial purpose” of FLSA should 

be given “liberal construction”); Ramey v. Cincinnati Enquirer, Inc., 508 

F.2d 1188, 1196 (6th Cir. 1974) (discussing “society’s stake in rewarding 

attorneys who produce . . . benefits in order to maintain an incentive to 

others”); Bozak, 2014 WL 3778211, at *6 (collecting cases); Vazquez v. 

Ranieri Cheese Corp., No. 07 Civ. 464, 2011 WL 554695, at *4 (E.D.N.Y. Feb. 

7, 2011) (“[T]he fee provisions contained in the FLSA . . . [was] designed 

in part to secure legal representation for plaintiffs whose wage and hour 

grievances were too small, in terms of expected recovery, to create a 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.225 Filed 04/19/16 Page 30 of 39
31

Where relatively small claims can only be prosecuted through 

aggregate litigation, and the law relies on prosecution by “private 

attorneys general,” attorneys who fill that role must be adequately 

compensated for their efforts. Turner v. Perry Twp., Ohio, No. 03 Civ. 455, 

2005 WL 6573783, at *3 (S.D. Ohio Dec. 30, 2005) (“[T]he Sixth Circuit has 

emphasized the private attorney general theory of fee recovery: the 

importance of bringing [FLSA] cases, even if only nominal damages, are 

recovered to vindicate employee rights and Congressional policy”); see 

also Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL 4357376, at *13 

(S.D.N.Y. Sept. 16,2011); deMunecas v. Bold Food, LLC, No. 09 Civ. 440, 

2010 WL 3322580, at *8 (S.D.N.Y.Aug. 23, 2010); Sand v. Greenberg, No. 08 

Civ. 7840, 2010 WL 69359, at *3 (S.D.N.Y. Jan. 7,2010) (statutory 

attorneys’ fees are meant to “encourage members of the bar to provide 

legal services to those whose wage claims might otherwise be too small to 

justify the retention of able, legal counsel”).

In collective action wage and hour lawsuits, public policy favors a 

common fund attorneys’ fee award, which Courts generally determine 

based upon the percentage-of-fund method. See Blum v. Stenson, 465 U.S. 

 

financial incentive for qualified counsel to take such cases under 

conventional fee arrangements.”)(citation omitted).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.226 Filed 04/19/16 Page 31 of 39
32

886, 900 n.16 (1984) (stating that in common fund cases “a reasonable fee 

is based on a percentage of the fund bestowed on the Collective”); 

Rawlings v. Prudential-Bach Props., Inc., 9 F.3d 513, 515 (6th Cir. 1993) 

(finding clear “trend towards adoption of a percentage of the fund method 

in [common fund] cases”); In re Packaged Ice Antitrust Litig., 2011 WL 

6209188, at *17 (stating Sixth Circuit has recognized numerous 

advantages to percentage of fund method); Bessey v. Packerland Plainwell, 

Inc., No. 06 Civ. 95, 2007 WL 3173972, at *4 (W.D. Mich. Oct. 26, 2007) 

(“The fact that the damages which could have been claimed by each 

Collective member were relatively modest provides a strong reason for 

adopting the percentage of recovery method, for it rewards counsel for 

taking on a case which might not otherwise be economically feasible.”); In 

re Cardizem CD Antitrust Litig., 218 F.R.D. at 531-32 (finding application 

of “percentage-of-the-[common-]fund approach appropriate); Aros, 2012 

WL 3060470, at *5; Reyes v. Altamarea Grp., LLC, No. 10 Civ. 6451, 2011 

WL 4599822, at *7 (S.D.N.Y. Aug. 16, 2011); see also Moulton v. U.S. Steel 

Corp., 581 F.3d 344, 352 (6th Cir. 2009) (“[I]n common-fund cases, we 

require only that awards of attorney’s fees be reasonable under the 

circumstances.”) (citation and internal quotes omitted).

A percentage of the fund approach fosters judicial economy by 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.227 Filed 04/19/16 Page 32 of 39
33

eliminating a detailed and time-consuming lodestar analysis. Rawlings, 9 

F.3d at 516-17. This is an important feature because “the lodestar method 

is too cumbersome and time-consuming for the resources of the Court.” In 

re Cardizem CD, 218 F.R.D. at 532 (citation and internal quotes omitted). 

The lodestar approach burdens a court with the task of reviewing 

extensive time records reflecting many hours of attorney time. Rawlings, 

9 F.3d at 516-17. In contrast, the percentage of the fund approach is “easy 

to calculate” and it “establishes reasonable expectations on the part of 

plaintiffs’ attorneys as to their expected recovery.” Id. at 516. Crucially, 

“the percentage of the fund method more accurately reflects the results 

achieved.” Id.

In applying the common fund method, courts award attorneys’ fees 

as a percentage of the entire maximum gross settlement fund—and not as 

a percentage of the amount claimed—even where amounts to be paid to 

settlement Class Members who do not file claims revert to Defendant. See 

Boeing Co. v. Van Gemert, 444 U.S. 472, 480-81 (1980) (stating that this 

approach “rectifies inequity by requiring every member of the Collective 

to share attorney’s fees to the same extent that he can share the 

recovery”); Moulton, 581 F.3d at 352 (rejecting “objectors focus on the 

amount claimed rather than the amount allocated”); Masters v. Wilhelmina 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.228 Filed 04/19/16 Page 33 of 39
34

Model Agency, Inc., 473 F.3d 423, 436-47 (2d Cir. 2007) (holding that 

because the entire fund was created through the efforts of counsel, that 

the allocation of fees by percentage should be awarded based on the total 

funds made available, whether claimed or not); Waters v. Int’l Precious 

Metals Corp., 190 F.3d 1291, 1295-98 (11th Cir. 1999) (“In Boeing Co. v. 

Van Gemert, the Supreme Court settled this question by ruling that 

Collective counsel are entitled to a reasonable fee based on the funds 

potentially available to be claimed, regardless of the amount actually 

claimed.”) (quoting Herbert B. Newberg & Alba Conte, Newberg on 

Collective Actions § 14.03 (3d ed. 1992)); Williams v. MGM-Pathe 

Commc’ns. Co., 129 F.3d 1026, 1027 (9th Cir. 1997) (reversing district 

court’s award of 33 percent of the claimed fund and awarding attorneys’ 

fees of 33 percent of funds made available).

1. An Award of One-Third of the Fund Is Reasonable and 

Should Be Granted

Plaintiffs request an award of $150,000, or one-third of the 

settlement common fund, as attorneys’ fees. The central requirement for 

an award of fees is that it be reasonable. See Reed v. Rhodes, 179 F.3d 453, 

471 (6th Cir. 2008); Rawlings, 9 F.3d at 516 (“In this circuit, we require 

only that awards of attorney’s fees by federal courts in common fund cases 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.229 Filed 04/19/16 Page 34 of 39
35

be reasonable under the circumstances.”); Dillworth v. Case Farms 

Processing, Inc., No. 08 Civ. 1694, 2010 WL 776933, at *7 (N.D. Ohio Mar. 

8, 2010) (using reasonableness standard in FLSA context).

The work that Plaintiffs’ Counsel has performed in litigating and 

settling this case demonstrates their commitment to the FLSA collective 

and to representing the collective’s interests, and establishes the 

reasonableness of their fees. Plaintiffs’ Counsel has committed substantial 

resources to prosecuting this case. The work that Plaintiffs’ Counsel has 

performed including investigating claims, reviewing documents, drafting 

the complaint, preparing for and defending the Named and Opt-In 

Plaintiffs’ depositions, preparing for and attending mediation, and 

negotiating the settlement terms and reducing them to a formal 

settlement agreement, was significant and contributed to the substantial 

recovery obtained on behalf of the collective. See Capsolas v. Pasta Res. 

Inc., No. 10 Civ. 5595, 2012 WL 4760910, at *7 (S.D.N.Y. Oct. 5, 2012), 

(approving requested fee where “[t]he work that Collective Counsel . . . 

performed in litigating and settling th[e] case demonstrate[d] their 

commitment to the Collective and to representing the Collective’s 

interests”).

Since the filing of the original complaint in August 1, 2014, Plaintiffs’ 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.230 Filed 04/19/16 Page 35 of 39
36

Counsel have spent 830 attorney, paralegal, and support staff hours 

prosecuting this case. Exhibit 2 ¶ 45. Multiplied by each attorney’s, 

paralegal’s, and staff member’s hourly rate, this results in a total lodestar 

amount of approximately $315,000. Exhibit 2 ¶ 45-46; Exhibit 6

(Summary of PMPR Time). Plaintiffs’ Counsel’s request for $150,000 

represents an average fee of $166.67 per hour and is reasonable fee for 

the community.

Here, Plaintiffs’ Counsel has secured a substantial payment of up to 

$450,000 Courts have consistently recognized that the result achieved is 

a major factor to be considered in making a fee award. Hensley v. 

Eckerhart, 461 U.S. 424, 436 (1983) (noting that the “most critical factor 

is the degree of success obtained”); Rawlings, 9 F.3d at 516 (stating that a 

percentage of the fund will compensate counsel for the result achieved); 

Smillie v. Park Chem. Co., 710 F.2d 271, 275 (6th Cir. 1983). 

Plaintiffs’ Counsel’s efforts to date have been without compensation, 

and their entitlement to be paid has been wholly contingent upon 

achieving a good result. Bonanni Decl. ¶ 48; see also Dillworth, 2010 WL 

776933, at *8 (citing as justification for one-third recovery from common 

fund “[t]he contingent nature of the fee agreement,” which “meant that 

counsel bore the risk of receiving no fee in the event that a less than 

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.231 Filed 04/19/16 Page 36 of 39
37

favorable result was achieved”). The requested award is consistent with 

the norms of Collective and collective litigation in this circuit. See, e.g., 

Dillworth, 2010 WL 776933, at *8 (finding attorneys’ fees award of onethird of common fund was “reasonable and has been approved in similar 

FLSA collective actions in [the Northern District of Ohio]”) (collecting 

cases); Bessey, 2007 WL 3173972, at *4 (approving attorneys’ fees of 

approximately 33% of the common fund in FLSA case and noting that 

“[e]mpirical studies show that, regardless whether the percentage method 

or the lodestar method is used, fee awards in Collective actions average 

around one-third of the recovery”) (citation omitted).8

The fee requested by Plaintiffs’ Counsel also is reasonable because 

they will continue to perform work on behalf of the collective in 

implementing the settlement, but will not make a supplemental fee 

application. See Bozak, 2014 WL 3778211, at *8. Plaintiffs’ Counsel 

anticipate that they will be required to spend substantial additional time 

 

8 See also In re Se. Milk Antitrust Litig., No. 08 MD 1000, 2013 WL 2155387, 

at *3 (E.D. Tenn. May 17, 2013) (finding reasonable award of one-third of 

settlement fund; granting $52,866,667, in addition to previous award of 

$48,333,333); Dallas, 2013 WL 2197624, at *12 (preliminarily approving 

attorneys’ fees of one-third of the settlement amount); In re Packaged Ice, 

2011 WL 6209188, at *19 (noting that an award of “close to 30% appears 

to be a fairly well-accepted ratio in cases of this type and generally in 

complex Collective actions”).

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.232 Filed 04/19/16 Page 37 of 39
38

administering the settlement in the future, including answering questions 

from Eligible Settlement Class Members about the case and working with 

the Settlement Administrator. Exhibit 2 ¶ 51-52. Plaintiffs’ Counsel have 

a continuing obligation to represent the collective during the settlement 

approval process and the disbursement phase.

Plaintiffs’ Counsel also have incurred $12,500 in out-of-pocket costs 

prosecuting this case, including costs for electronic research, court fees, 

court reporters, deposition transcripts, postage and courier fees, working 

meals, photocopies, telephone calls, travel, and Plaintiffs’ portion of the 

mediator’s fees. Exhibit 2 ¶ 49; Exhibit 2(b). (Summary of PMPR out-ofpocket expenses); see Griffin, 2013 WL 6511860, at *9 (approving 

payment of costs when “documented by firm and by category of expense . 

. . and appear reasonable”); In re Cardizem CD Antitrust Litig., 218 F.R.D. 

at 535 (approving costs as “type routinely billed by attorneys to paying 

clients in similar cases”). Accordingly, Plaintiffs’ Counsel’s request for 

attorneys’ fees of $150,000 and reimbursement of actual costs of $12,500

is reasonable and should be approved.

CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that the 

Court issue an order: (1) approving the $450,000 settlement set forth in the

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.233 Filed 04/19/16 Page 38 of 39
39

Joint Stipulation of Settlement and R Release; (2) approving the proposed 

Notice of Settlement and Claim and Consent Form and direct their distribution; 

(3) approving service awards to Class Representatives, Class Deponents and 

Class Participants for their service to the collective; (4) approving Plaintiffs’

request for one-third of the settlement fund for attorneys’ fees and an

additional reimbursement of costs and litigation expenses; and (5) 

incorporating the terms of the Joint Stipulation of Settlement and Release. 

By: /s/ Megan A. Bonanni P52079

Megan A. Bonanni P52079

Robert W. Palmer P31704

Pitt McGehee Palmer & Rivers, P.C.

117 W. Fourth Street, Suite 200

Royal Oak, MI 48067

(248) 398-9800

mbonanni@pittlawpc.com

rpalmer@pittlawpc.com

Attorneys for Plaintiffs

By: Elayna J. Youchah w/consent

Elayna J. Youchah, Bar No. 5837

youchahe@jacksonlewis.com

Jackson Lewis P.C.

3800 Howard Hughes Parkway, Suite 600

Las Vegas, Nevada 89169

(702) 921-2460

Attorneys for Defendant

Dated: April 19, 2016

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing 

instrument was filed with the U.S. District Court 

through the ECF filing system and that all parties to the 

above cause was served via the ECF filing system on 

______________________________. 

Signature: _/s/ Regina Bell_____

117 W. Fourth Street, Suite 200 

Royal Oak, MI 48067 

(248) 398-9800 

rbell@pittlawpc.com

April 19, 2016 .

Case 2:14-cv-13005-AC-MKM ECF No. 40, PageID.234 Filed 04/19/16 Page 39 of 39