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While the Ninth Circuit has not specifically addressed this issue, district courts in the

Ninth Circuit have followed the reasoning set forth in Lynn’s Food Stores. See, e.g.,

Ambrosino v. Home Depot U.S.A., Inc., No. CV 11-1319, 2014 WL 3924609 (S.D. Cal.

Aug. 11, 2014); Hand v. Dionex Corp., No CV 06-1318, 2007 WL 3383601 (D. Ariz. Nov.

13, 2007).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Christian Collins, 

Plaintiff,

v.

Chalak-MMT PV LLC, d/b/a Genghis

Grill, and Troy Horning,

Defendants.

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No. CV-15-2158-PHX-SMM 

ORDER

Pending before the Court is the parties’ joint motion and renewed joint motion for

approval of settlement agreement and dismissal with prejudice of claims by Plaintiff. (Docs.

27 and 30.) Under the reasoning set forth in Lynn’s Food Stores, Inc. v. United States, 679

F.2d 1350, 1352-53 (11th Cir. 1982), there are only two ways in which back wage claims

under the Fair Labor Standards Act (“FLSA”) can be settled or compromised by employees.1

One, pursuant to 29 U.S.C. § 216(c), the Secretary of Labor is authorized to supervise

payment to employees of unpaid wages owing to them. Id. at 1353. The second way is

provided in the context of litigation brought directly by employees against their employer

pursuant to § 216(b) to recover back wages. Id. When an employee brings a private action

for back wages and presents to the district court a proposed settlement, the district court

“may enter a stipulated judgment after scrutinizing the settlement for fairness.” Id. 

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In this matter, the parties notified the Court that they had reached a settlement. In

compliance with the FLSA, the Court ordered the parties to submit their settlement

agreement for review. (Doc. 23.) Following review, the Court denied approval without

prejudice, based on the following: “Based on the Court’s review, the Court finds that the

settlement is unclear. The settlement agreement provides that the parties are each responsible

for their attorney’s fees, but does not provide the amount of fees that Plaintiff must pay to

his counsel. The amount of Plaintiff’s attorney’s fees is necessary for the Court to scrutinize

the settlement for fairness. Therefore, the Court will deny the joint motion without

prejudice.” (Doc. 26.)

The parties then submitted additional detail on the amount of Plaintiff’s attorney’s

fees and renewed their motion for approval of the settlement agreement. (Doc. 27.) After

review, the Court scheduled a hearing to ensure that the settlement of $16,906.74 was a fair

and reasonable compromise of the issues and to further inquire on the issue of attorney’s

fees, specifically stating that “counsel for Plaintiff will need to explain the amount of

attorney’s fees authorized under the settlement agreement.” (Doc. 28.) 

At the hearing, after listening to Plaintiff’s counsel’s explanation for the amount of

requested attorney’s fees, the Court allowed counsel to supplement his motion with

additional detail in support. (Doc. 29.) 

Subsequently, the parties filed their renewed motion to approve settlement and dismiss

suit. (Doc. 30.) Counsel submitted his memorandum in support which included his detailed

time entries which supported his attorney’s fee request. (Doc. 30 and 30-2.) In support of the

number of hours of attorney’s fees, Plaintiff’s counsel explained that a longer than usual

litigation history accompanied his larger than normal attorney’s fee request. (Id.) According

to Plaintiff’s counsel, this litigation began long before the Complaint was filed as the parties

engaged in a lengthy attempt to resolve this matter short of litigation. (Id.) This included a

demand letter to Defendants and a number of settlement-based exchanges for approximately

six months. (Id.)

Plaintiff’s counsel provided the detailed amount of attorney’s fees expended on this

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matter. (Doc. 30-2.) In total, he spent 51.4 hours, at a rate of $300 per hour, in prosecuting

this litigation. Plaintiff’s counsel further states that his law clerk, Christopher Bendau (“Clerk

Bendau”) expended 1.2 hours at an hourly rate of $100. Based on these hourly totals, his fee

then totals $15,540. In order to resolve the matter, Plaintiff’s counsel agreed to a discount of

$3,040, reducing his total fee to $12,500, which was the attorney fee amount settled upon by

the parties.

The Court is quite familiar with Plaintiff’s counsel, Clifford Bendau, in his

prosecution of FLSA cases. For counsel with only three (3) years of experience, the Court

notes that Mr. Bendau has performed competently litigating FLSA complaints in federal

court. However, in this matter, as in other matters (see, e.g., Apolinar v. Abuelo’s, No. CV

14-351, Doc. 52), the Court will reduce Mr. Bendau’s attorney fee rate from $300 an hour

and set it at $200 per hour to better reflect rates charged by similarly situated attorneys in the

Phoenix market. The Court will further reduce Clerk Bendau’s rate from $100 an hour to $45

an hour, for a total settlement amount of $14,740.74 ($4,000 to Plaintiff; $10,334 to

Plaintiff’s counsel Bendau, and costs of $406.74 to Plaintiff’s counsel Bendau).

Accordingly,

IT IS HEREBY ORDERED granting in part the parties’ joint motion for approval

of the settlement agreement between Defendants and Plaintiff Christian Collins (Doc. 27),

and granting in part the parties’ renewed joint motion for approval of the settlement

agreement between Defendants and Plaintiff Christian Collins (Doc. 30). The Clerk of Court

shall dismiss all claims of Plaintiff Collins with prejudice, the settlement agreement, as

limited by this Court’s Order, resolves all associated attorney’s fees, costs, interest, or other

penalties. (Docs. 27 and 30.)

IT IS FURTHER ORDERED approving the settlement agreement reached between

Defendants and Plaintiff Christian Collins but limiting the total settlement amount award to

$14,740.74 ($4,000 to Plaintiff; $10,334 to Plaintiff’s counsel Bendau; and costs of $406.74

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to Plaintiff’s counsel Bendau).

DATED this 1st day of February, 2017.

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