United States District Court, W.D. North Carolina, Charlotte Division
BARBARA THAXTON and ANGELA MAYES, Individually, and on the behalf of all similarly Situated current and former employees Plaintiffs,
BOJANGLES' RESTAURANTS, INC. and BOJANGLES', INC., Defendants.
COGBURN JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the parties' Joint
Motion for Settlement Approval of this FLSA Collective
Action. (Doc. No. 178). Having considered the motion and the
proposed Settlement Agreement (Doc. No. 178-1), the Court
enters the following Order.
Fair Labor Standards Act (“FLSA”) was enacted to
protect workers from the substandard wages and grueling
hours. See Quevedo v. HBJ, Inc., 14-cv-734, 2014 WL
3970173, at *2 (D. Md. Aug. 13, 2014). To that end, the FLSA
protections are generally not waivable by contract or
otherwise. See Lynn's Food Stores v. United
States, 679 F.2d 1350, 1352 (11th Cir. 1982). If such
provisions could be waived, this would “‘nullify
the purposes' of the statute and thwart the legislative
policies [the FLSA] was designed to effectuate.”
Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 740 (1981).
settlements are an exception to the general rule of
non-waiver because they are “more likely to reflect a
reasonable compromise of disputed issues than a mere waiver
of statutory rights brought about by an employer's
overreaching.” Lynn's Food Stores, 679
F.2d at 1354. Still, before approval, the Court must ensure
the settlement is a fair and reasonable resolution of a
“a bona fide dispute between the parties with respect
to coverage or amount due.” Brooklyn Sav. Bank v.
O'Neil, 324 U.S. 697, 703 (1945). To decide whether
there is a bona fide dispute, courts consider: “(1)
whether there are FLSA issues actually in dispute, (2) the
fairness and reasonableness of the settlement in light of the
relevant factors from Rule 23, and (3) the reasonableness of
the attorneys' fees.” Duprey v. Scotts Co.
LLC, 30 F.Supp.3d 404, 408 (D. Md. 2014) (citing
Lynn's Food Stores, 679 F.2d at 1355).
the Fair Labor Standards Act, a prevailing plaintiff is
entitled to reasonable attorneys' fees and costs.
See 29 U.S.C. § 216(b). Still, the
reasonableness of such a fee is left to the sound discretion
of the Court. See Burnley v. Short, 730 F.2d 136,
141 (4th Cir. 1984). As such, the plaintiff must submit
adequate documentation for the Court to assess
reasonableness. Cf. Hensley v. Eckerhart, 461 U.S.
424, 433 (1983).
evaluating the reasonableness of an attorneys' fee, the
Fourth Circuit adheres to Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974). See
Burnley, 730 F.2d at 141. Johnson provides
twelve factors that “must be considered by district
courts in this circuit in arriving at a determination of
reasonable attorneys' fees.” Barber v.
Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir. 1978).
“These include: (1) the time and labor expended; (2)
the novelty and difficulty of the questions raised; (3) the
skill required to properly perform the legal services
rendered; (4) the attorney's opportunity costs in
pressing the instant litigation; (5) the customary fee for
like work; (6) the attorney's expectations at the outset
of the litigation; (7) the time limitations imposed by the
client or circumstances; (8) the amount in controversy and
the results obtained; (9) the experience, reputation and
ability of the attorney; (10) the undesirability of the case
within the legal community in which the suit arose; (11) the
nature and length of the professional relationship between
attorney and client; and (12) attorneys' fees awards in
similar cases.” Id at 226 n.28.
proposed settlement, the parties propose awarding
Plaintiffs' counsel with $120, 000 in attorneys' fees
and an additional $65, 000 in costs. (Doc. No. 178-1 at 7).
In support, Plaintiffs' counsel declared that they
produced nearly 400 questionnaires, responded to more than
300 interrogatories, produced more than 35, 000 pages of
documents, and deposed 35 witnesses. (Doc. Nos. 178 at 2, 179
at 6-10). Also, they indicated they have more than “30
years' experience practicing law and regularly
represent employees asserting claims under the FLSA.”
(Doc No. 178 at 4). Still, counsel failed to articulate which
attorneys worked on this case, the number of hours they
worked, and their hourly rates. Cf Hensley, 461 U.S.
at 433 (“The most useful starting point for determining
the amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate.”). Counsel likewise failed to
provide the Court with any basis to assess the reasonableness
of their rates and accompanying costs. Thus, the Court will
order Plaintiffs' counsel to supplement the record so
that the Court may assess the reasonableness of
attorneys' fees and costs. See, e.g., Quevedo,
2014 WL 3970173, at *5.
IS, THEREFORE, ORDERED that Plaintiffs will
supplement the record with evidence demonstrating the
reasonableness of attorneys' fees and costs. The
parties' Joint Motion for Settlement Approval of this
FLSA Collective ...