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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:

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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 

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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 19, 2016

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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, 

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individually 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(b) and 1(f) and Claim and 

Consent Form (attached as 1(a)) 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. 

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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

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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 

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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 

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timely return the Claim and Consent Form attached thereto if they wish 

to be included in the settlement and receive payment. See (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 

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

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: 

one-third 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’ 

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claims, produced documents in response to Defendant’s document 

requests, 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.

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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,

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.

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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 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

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information and conducted an adequate investigation to allow them to

make an educated and informed analysis and conclusion.

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

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parties exchanged numerous documents and other data relevant to

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

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

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

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

owed 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

settlement is 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

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substandard wages and to give additional compensation for overtime

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

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

 

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 

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

workers 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 

 

Civ. 299, 2008 WL 4724499.

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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). 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’s-length. 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 

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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 

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), (b), and(f). The 

Proposed Notices 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 

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(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”).

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”); 

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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 

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 

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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 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 

 

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.”).

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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 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 

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25

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

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

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 

 

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.”).

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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, 

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

Case 2:14-cv-13005-AC-MKM ECF No. 41, PageID.351 Filed 04/19/16 Page 26 of 40
27

taken against them by their former employer and former co-workers”).4

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.

 

4 Plaintiffs acknowledge that no adverse action was taken by Defendant 

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

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.”).

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Additionally, the amount of the requested service awards is 

reasonable and consistent with awards that have been granted in 

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

 

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 

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29

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

Reasonable

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 

 

*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).

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.

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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, 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 

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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 

 

(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 financial incentive for qualified counsel to 

take such cases under conventional fee arrangements.”)(citation 

omitted).

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common fund attorneys’ fee award, which Courts generally determine 

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

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 

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be reasonable under the circumstances.”) (citation and internal quotes 

omitted).

A percentage of the fund approach fosters judicial economy by 

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 

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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 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 

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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 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] 

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their commitment to the Collective and to representing the Collective’s 

interests”).

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

Plaintiffs’ 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 

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. Exhibit 2 ¶ 48; 

see also Dillworth, 2010 WL 776933, at *8 (citing as justification for oneCase 2:14-cv-13005-AC-MKM ECF No. 41, PageID.361 Filed 04/19/16 Page 36 of 40
37

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 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 one-third 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 

 

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”).

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38

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 

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 (B) ¶ 49; (Summary of PMPR 

out-of-pocket 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 

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39

$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

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

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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 April 19, 2016.

Signature: _/s/ Regina Bell_____

117 W. Fourth Street, Suite 200

Royal Oak, MI 48067

(248) 398-9800

rbell@pittlawpc.com

Case 2:14-cv-13005-AC-MKM ECF No. 41, PageID.365 Filed 04/19/16 Page 40 of 40