In the United States District Court for the Middle District of Pennsylvania

Case 4:16-cv-00469-MWB Document 51 Filed 06/22/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

: RANDY WALTZ, et al. : : 4:16-cv-00469-MWB v. : : AVEDA TRANSPORTATION AND : ENERGY SERVICES INC., et al. : :

PLAINTIFFS’ UNOPPOSED MOTION FOR APPROVAL OF THE FLSA SETTLEMENT

Having settled this FLSA collective action lawsuit, Originating Plaintiff

Randy Waltz and Opt-In Plaintiffs David Canada, Toby Hayes, Mark Ortiz, Gary

Solinger, John Tinkle, and Michael Tinkle (collectively “Plaintiffs”) now move for judicial approval of the settlements. See Schwartz v. The Pennsylvania State

University, 2017 U.S. Dist. LEXIS 58874 (M.D. Pa. Apr. 18, 2017) (Brann, J.)

(discussing legal standards applicable to approval of FLSA settlements).

Defendants do not oppose this motion. The settlement agreements are attached as

Exhibit A, and a declaration addressing the undersigned’s fee lodestar (which is greater than the fee recovered under the settlement) and out-of-pocket expenses is attached as Exhibit B. In the next few days, the undersigned counsel will file a brief in support of this motion pursuant to Local Civil Rule 7.5.

1

Case 4:16-cv-00469-MWB Document 51 Filed 06/22/17 Page 2 of 2

WHEREFORE, Plaintiffs respectfully request that the Court grant this motion and approve the settlement of this FLSA action. A proposed order is attached.

Date: June 22, 2017 Respectfully,

/s/ Peter Winebrake Peter Winebrake R. Andrew Santillo Mark J. Gottesfeld WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 (215) 884-2491

For Plaintiffs

2

Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 1 of 29

Exhibit A

Settlement Agreements Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 2 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 3 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 4 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 5 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 6 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 7 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 8 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 9 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 10 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 11 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 12 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 13 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 14 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 15 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 16 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 17 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 18 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 19 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 20 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 21 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 22 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 23 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 24 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 25 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 26 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 27 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 28 of 29 Case 4:16-cv-00469-MWB Document 51-1 Filed 06/22/17 Page 29 of 29 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 1 of 27

Exhibit B

Declaration of Peter Winebrake Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 2 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

: RANDY WALTZ, et al. : : 4:16-CV-00469-MWB v. : : AVEDA TRANSPORTATION AND : ENERGY SERVICES INC., et al . : :

DECLARATION OF PETER WINEBRAKE

I, Peter Winebrake, declare, under penalty of perjury and pursuant to 28 U.S.C.

§ 1746, that the following facts are true and correct:

1. I am an attorney at Winebrake & Santillo, LLC (“W&S”), 715 Twining

Road, Suite 211, Dresher, PA 19025 and am personally familiar with the firm’s involvement in this litigation.

2. I submit this declaration to provide the Court with information concerning the fee lodestar and litigation expenses incurred by W&S during the litigation.

W&S’s Experience in the Field of Wage and Hour Litigation

3. Since its founding in January 2007, W&S has exclusively represented plaintiffs in employment rights litigation. W&S is a pure contingency fee law firm and is “at risk” in every matter it handles. W&S never requires a client to pay an hourly fee or retainer. If a matter does not result in a money recovery, W&S recovers no attorney’s fees and is not reimbursed for any of its out-of-pocket expenditures. 1

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 3 of 27

This is a risky business. While W&S has enjoyed substantial success over the years, it also has invested thousands of attorney hours and tens of thousands of dollars on high-stakes litigation adventures that have fallen flat. See, e.g., Resch v. Krapf's

Coaches, Inc., 785 F.3d 869 (3d Cir. 2015) (summary judgment entered against W&S clients in FLSA collective action); Itterly v. Family Dollar Stores, Inc., 606 Fed.

Appx. 643 (3d Cir. 2015) (summary judgment entered against W&S clients in

PMWA class action); Parker v. NutriSystem, Inc., 620 F.3d 274 (3d Cir. 2010)

(summary judgment entered against W&S clients in FLSA collective action).

4. Many of W&S’s cases are class or collective actions seeking damages on behalf of groups of employees. W&S has resolved 132 separate class/collective actions in courts throughout the United States. See Attachment 1.

5. In addition, W&S has successfully resolved over 200 “individual” employment rights actions in which a single plaintiff (or a small group of named plaintiffs) alleges violations of federal or state employment laws. Indeed, on October

25, 2016, W&S received the Guardian Award from Friends of Farmworkers, Inc. in recognition of, inter alia, its work on behalf of low-wage workers in individual wage actions.

6. Various federal courts have issued opinions commenting on W&S’s work in class/collective action lawsuits. See, e.g., Schaub v. Chesapeake & Del.

Brewing Holdings, 2016 U.S. Dist. LEXIS 157203, *11 (E.D. Pa. Nov. 14, 2016)

(W&S “provided highly competent representation for the Class”); Tavares v. S-L 2

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 4 of 27

Distribution Co., Inc., 2016 U.S. Dist. LEXIS 57689, *43 (M.D. Pa. May 2, 2016)

(W&S and its co-counsel “are skilled and experienced litigators who have handled complex employment rights class actions numerous times before”); Lapan v. Dick’s

Sporting Goods, Inc., 2015 U.S. Dist. LEXIS 169508, *7 (D. Mass. Dec. 11, 2015)

(W&S and its co-counsel “have an established record of competent and successful prosecution of large wage and hour class actions.”); Kiefer v. Moran Foods, LLC,

2014 U.S. Dist. LEXIS 106924, *49 (D. Conn. Aug. 5, 2014) (W&S and its co- counsel are “experienced class action employment lawyers with good reputations among the employment law bar”); Young v. Tri County Sec. Agency, Inc., 2014 U.S.

Dist. LEXIS 62931, *10 (E.D. Pa. May 7, 2014) (W&S “has particular experience with wage and overtime rights litigation,” “has been involved in dozen of class action lawsuits in this area of law,” and “have enjoyed great success in the field.”); Craig v.

Rite Aid Corp., 2013 U.S. Dist. LEXIS 2658, *45 (M.D. Pa. Jan 7, 2013) (W&S and its co-counsel “are experienced wage and hour class action litigators with decades of accomplished complex class action between them and that the Class Members have benefitted tremendously from able counsel’s representation”); Cuevas v. Citizens

Financial Group, 283 F.R.D. 95, 101 (E.D.N.Y. 2012) (W&S has “been appointed class counsel for dozens of wage and hour class claims across the country”).

W&S Attorneys’ Individual Experience

7. Attorney Peter Winebrake (“Winebrake”) graduated in 1988 from

Lehigh University (magna cum laude) and in 1991 from Temple University School of 3

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 5 of 27

Law (cum laude), where he served as a Managing Editor of the Temple Law Review.

Winebrake has been a member of the New York bar since 1993 and the Pennsylvania bar since 1997. He also is admitted in the following federal courts: (i) the United

States Supreme Court; (ii) the United States Courts of Appeals for the First, Second,

Third, Seventh, and Tenth Circuits; and (iii) the United States District Courts for the

Eastern District of Pennsylvania, Middle District of Pennsylvania, Western District of

Pennsylvania, Eastern District of New York, Northern District of New York,

Southern District of New York, Northern District of Ohio, Northern District of

Illinois, District of Colorado, and Eastern District of Michigan.

8. Prior to founding W&S in January 2007, Winebrake held the following positions: (i) Law Clerk to Justice William R. Johnson of the New Hampshire

Supreme Court (9/91-8/92); (ii) Assistant Corporation Counsel at the New York City

Law Department’s General Litigation Unit (9/92-2/97); (iii) Associate at the

Philadelphia law firm of Ballard Spahr Andrews & Ingersoll, LLP (2/97-12/98); (iv)

Deputy City Solicitor and, later, Chief Deputy City Solicitor at the Philadelphia Law

Department (12/98-2/02); and (v) Non-Equity Partner at the Philadelphia law firm of

Trujillo Rodriguez & Richards, LLC (3/02-1/07).

9. Winebrake has personally handled through conclusion well over 750 civil actions in the United States District Courts and has tried at least 15 federal cases to verdict. The great majority of these civil actions have arisen under the Nation’s civil rights or employment rights laws. At the appellate court level, Winebrake has 4

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 6 of 27 argued appeals involving complex and important issues of class action law. See, e.g.,

Cuevas v. Citizens Financial Group, Inc., 526 Fed. Appx. 19 (2d Cir. 2013); Knepper v. Rite Aid Corp., 675 F.3d 249 (3d Cir. 2012); McNulty v. H&R Block, Inc., 843

A.2d 1267 (Pa. Super. 2004).

10. Winebrake serves pro bono on the Mediation Panel of the United States

District Court for the Middle District of Pennsylvania, and the Martindale-Hubbell

Peer Review Rating System gives him an “AV-Preeminent” rating. Winebrake has lectured on employment law at the Vanderbilt University School of law, the Wharton

School of Business at the University of Pennsylvania; the Beasley School of Law at

Temple University; the University of Pennsylvania Law School; the Earle Mack

School of Law at Drexel University; the Pennsylvania Bar Institute; the Workplace

Injury Law & Advocacy Group; the American Association of Justice; the National

Employment Lawyers Association; the National Employment Lawyers Association of

New York; and the Ohio Association of Justice.

11. Attorney R. Andrew Santillo (“Santillo”) graduated in 1998 from

Bucknell University and in 2004 from the Temple University School of Law, where he served as Editor-in-Chief of the Temple Political & Civil Rights Law Review.

Santillo has been a member of the Pennsylvania and New Jersey bars since 2004. He also is admitted to the following federal courts: (i) the United States Court of Appeals for the Third Circuit and (ii) the United States District Courts for the Eastern District of Pennsylvania, Middle District of Pennsylvania, Western District of Pennsylvania, 5

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 7 of 27

District of New Jersey, Northern District of Illinois, District of Colorado, and Eastern

District of Michigan.

12. Prior to joining W&S as an equity partner in 2008, Santillo was an associate at the firm of Trujillo Rodriguez & Richards, LLC where he participated in the litigation of complex class action lawsuits arising under federal and state wage and hour, securities, and antitrust laws.

13. The Martindale-Hubbell Peer Review Rating System gives Santillo an

“AV-Preeminent” designation. Santillo has lectured on wage and hour law topics for

Bloomberg BNA; the Pennsylvania Bar Institute; the National Employment Lawyers

Association; the Workers’ Injury Law & Advocacy Group; the Ohio Association of

Justice; and the Philadelphia Chinatown Development Corporation. In addition to handling hundreds of wage and overtime rights cases in the federal trial courts,

Santillo has argued several important wage and overtime cases decided by the Third

Circuit Court of Appeals. See Resch v. Krapf’s Coaches, Inc., 780 F.3d 869 (3d Cir.

2015); McMaster v. Eastern Armored Services, 780 F.3d 167 (3d Cir. 2015). In

2017, Santillo was certified as an Arbitrator pursuant to Local Civil Rule 53.2 by

Chief Judge Petrese B. Tucker of the U.S. District Court for the Eastern District of

Pennsylvania.

14. Attorney Mark Gottesfeld (“Gottesfeld”) graduated in 2006 from

Lehigh University (magna cum laude) and in 2009 from Drexel University Earle

Mack School of Law (cum laude), where he served as an editor on the Drexel 6

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 8 of 27

University Earle Mack School of Law Review. During law school, Gottesfeld served as a Judicial Intern to Pennsylvania Superior Court Judge Jack A. Panella.

15. Gottesfeld has been a Member of the Pennsylvania and New Jersey bars since 2009 and a member of the New York bar since 2010. He also is admitted to the

United States District Courts for the Eastern District of Pennsylvania, Middle District of Pennsylvania, Western District of Pennsylvania, and District of New Jersey.

16. Prior to joining W&S as an associate in 2010, Gottesfeld worked at the

Philadelphia firm of Saltz, Mongeluzzi, Barrett & Bendesky, P.C.

17. Gottesfeld has lectured on wage and hour issues at the Ohio Association of Justice.

W&S Attorneys’ Hourly Rates

18. W&S frequently submits hourly rates to federal and state courts in seeking the recovery of fees after either a plaintiff has prevailed under a fee-shifting statute or (as is more common) after a class or collective action lawsuit has been settled and the court must approve the requested attorney’s fee. Of course, the hourly rates submitted by W&S attorneys vary depending on the nature of the work performed. See Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983).

19. In complex class/collective action lawsuits litigated in Pennsylvania,

W&S generally utilizes the hourly rates described in the fee schedule published by

Community Legal Services of Philadelphia. See Attachment 2. Under this fee schedule, which was recently updated, the following rates apply to W&S lawyers: 7

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 9 of 27

$620/hr for Winebrake; $400/hr for Santillo; and $305/hr for Gottesfeld. These rates are generally in-line with rates referenced by Pennsylvania district courts in performing “lodestar crosschecks” of the reasonableness of attorney’s fees sought by

W&S in the context of settled class or collective action lawsuits. See Tavares, 2016

U.S. Dist. LEXIS 57689, at *53; Ford v. Lehigh Valley Restaurant Group, Inc., 2016

U.S. Dist. LEXIS 31732, *3 n.2 (M.D. Pa. Mar. 10, 2016); Young v. Tri County Sec.

Agency, Inc., 13-cv-5371, 2014 U.S. Dist. LEXIS 62931, *27 (E.D. Pa. May 7,

2014); see also Sakalas v. Wilkes-Barre Hospital Co., 2014 U.S. Dist. LEXIS 63823,

*19 (M.D. Pa. May 8, 2014) (utilizing an “aggregate lodestar hourly billing rate of

$500.56” in subjecting W&S’s attorney fees to a lodestar crosscheck).

Hours Spent by W&S and the Resulting Fee Lodestar

20. W&S attorneys use the firm’s case management system to contemporaneously record each case-related activity and the amount of time spent performing the activity in six minute increments.

21. W&S’s contemporaneous time records can be found at Attachment 3.

These records have been redacted to exclude the identities personal client information, the substance of attorney-client communications, and the mental impressions of W&S attorneys.1

22. As indicated in the time records, W&S has spent 225.9 hours and

1 Of course, un-redacted versions of the time records are available for the Court’s in camera inspection. 8

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 10 of 27 incurred a total fee lodestar of $84,288.50:

TOTAL HOURLY NAME TITLE TOTAL HOURS RATE Peter Winebrake Partner 47.3 $620.00 $29,326.00 R. Andrew Santillo Partner 14.0 $400.00 $5,600.00 Mark J. Gottesfeld Associate 160.5 $305.00 $48,952.50 Clerical 4.1 $100.00 $410.00 TOTALS 225.9 $84,288.50

Out-of-Pocket Litigation Expenses of W&S

23. To date, W&S has incurred a total of $4,643.46 in litigation-related expenses. These expenses consist of: Court Reporting - $2,489.80; Travel -

$1,375.25; Court Fees - $400.00; Photocopying - $337.20; and Postage - $41.21.

I HEREBY DECLARE, UNDER PENALTY OF PERJURY AND PURSUANT TO 28 U.S.C. § 1746, THAT THE ABOVE FACTS ARE TRUE AND CORRECT:

June 22, 2016 ______Date Peter Winebrake

9

Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 11 of 27

Attachment 1 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 12 of 27 Winebrake & Santillo, LLC - Class/Collective Wage and Overtime Settlements and Judgments

Date of Co- Case Name Court Judge Type Approval/Judgment Counsel? Otto v. Pocono Medical Center, 4:06-cv-01186-JEJ M.D. Pa. John E. Jones, III 5/4/2007 Collective No Rodriguez-Fargas v. Hatfield Quality Meats, Inc., 2:06-cv-01206-LS E.D. Pa. Lawrence F. Stengel 5/29/2007 Class Yes Miller v. Antenna Star Satellites, Inc.,3:06-cv-00647-ARC M.D. Pa. A. Richard Caputo 5/29/2007 Collective Yes Sisko v. Wegmans Food Markets, Inc., 3:06-cv-00433-JMM M.D. Pa. James M. Munley 8/27/2007 Class No Evans/Smith, v. Lowe’s Home Centers, Inc., 3:03-cv-00438/3:03-cv-00384-ARC M.D. Pa. A. Richard Caputo 9/4/2007 Collective Yes Diehl/Smith v. Lowe's Home Centers, Inc., 3:06-cv-01464/3:03-cv-00384-ARC M.D. Pa. A. Richard Caputo 1/4/2008 Class Yes Malec v. Kost Tire & Muffler, et al., 3:07-cv-00864-ARC M.D. Pa. A. Richard Caputo 1/2/2008 Collective No Dunn v. National Beef Packing Company, LLC, 4:07-cv-01599-JEJ M.D. Pa. John E. Jones, III 5/27/2008 Collective No Blasi v. United Financial Management Group, Inc., 3:06-cv-01519-JMM M.D. Pa. James M. Munley 6/19/2008 Collective No Palmer v. Michael Foods, Inc., 3:07-cv-02136-TIV M.D. Pa. Thomas I. Vanaskie 11/25/2008 Collective No Coluccio v. U.S. Remodelers, Inc., 1:09-cv-00819-JHR D.N.J. Joseph H. Rodriguez 12/15/2009 Collective No Shabazz v. Asurion Corporation, 3:07-cv-00653-AT M.D. Tenn. Aleta A. Trauger 2/26/2009 Collective Yes In re Cargill Meat Solutions Corp. Wage and Hour Litig., 3:06-cv-00513-WJN M.D. Pa. William J. Nealon 3/6/2009 Collective Yes Golpe v. The Wedge Medical Center, P.C., 2:08-cv-04504-JF E.D. Pa. John P. Fullam 3/11/2009 Collective No Banks, v. New Vitae, Inc. and Tri County Respite, Inc., 5:08-cv-04212-LS E.D. Pa. Lawrence F. Stengel 3/26/2009 Collective No Weatherly v. Michael Foods, Inc., 8:08-cv-00153-JFB D. Neb. Joseph F. Bataillon 4/15/2009 Collective Yes Gallagher v. Bayada Nurses, Inc., No. 071000392 Phila.C.C.P. Idee C. Fox 4/21/2009 Class No Ray v. Krapf's Coaches, Inc., 2:08-cv-05097-DS E.D. Pa. David R. Strawbridge 9/10/2009 Collective No Miller v. Titanium Metals Corporation, 2:07-cv-04759-GP E.D. Pa. Gene E.K. Pratter 9/30/2009 Collective No Mayan v. Rydbom Express, Inc., 2:07-cv-02658-LS E.D. Pa. Lawrence F. Stengel 12/2/2009 Collective No Herd v. Specialty Surfaces International, Inc., 2:08-cv-01790-JCJ E.D. Pa. J. Curtis Joyner 1/26/2010 Collective No Morales v. Aaron Healthcare, Inc., 2008-C-5128 Lehigh.C.C.P. Brian Johnson 2/1/2010 Class No In re Pilgrim's Pride Fair Labor Standards Act Litig., 1:06-cv-01832-HFB W.D. Ark. Harry F. Barnes 4/2/2010 Collective Yes Williams v. Owens & Minor, Inc., 2:09-cv-00742-JD E.D. Pa. Jan E. Dubois 7/28/2010 Collective No Crisostomo v. Exclusive Detailing, Inc., 2:08-cv-01771-SRC-MAS D.N.J. Michael A. Shipp 9/15/2010 Collective Yes Gallagher v. Lackawanna County, 3:07-cv-00912-CCC M.D. Pa. Christopher C. Connor 10/5/2010 Collective No Herrarte v. Joe Jurgielewicz & Sons, Ltd., 5:09-cv-02683-RK E.D. Pa. Robert F. Kelly 10/27/2010 Collective No King v. Koch Foods of Mississippi, LLC, 3:06-cv-00301-DPJ S.D. Miss. Daniel P. Jordan 11/29/2010 Collective Yes McEvoy v. The Container Store, Inc., 1:09-cv-05490-KMW D.N.J. Karen M. Williams 12/17/2010 Collective No Hilborn v. Sanofi Pasteur, 3:09-cv-02032-ARC M.D. Pa. A. Richard Caputo 1/18/2011 Collective No Alexander/Campbell/Marrero v. KRA Corporation, 09-cv-02517/10-cv-01778/09-cv-02516-JF E.D. Pa. John P. Fullam 1/28/2011 Collective Yes Duvall v. Tri County Access Company, Inc., 2:10-cv-00118-RCM W.D. Pa. Robert C. Mitchell 3/30/2011 Class No Gibbons v. V.H. Cooper & Company, Inc., 3:10-cv-00897-JZ N.D. Ohio Jack Zouhary 4/18/2011 Class Yes Turner v. Mercy Health System, No. 080103670 Phila.C.C.P. Idee C. Fox 4/20/2011 Class Yes Vanston v. Maxis Healthy System, No. 080605155 Phila.C.C.P. Idee C. Fox 4/20/2011 Class Yes Dixon v. Dunmore Oil Company, 3:09-cv-00064-ARC M.D. Pa. A. Richard Caputo 4/27/2011 Collective No In re Tyson Foods, Inc., 4:06-cv-00143-CDL M.D. Ga. Clay D. Land 9/15/2011 Collective Yes Cover v. Feesers, Inc., 1:10-cv-00282-JEJ M.D. Pa. John E. Jones, III 10/11/2011 Collective No Muschulitz v. Holcomb Behavioral Health Systems, 5:11-cv-02980-JKG E.D. Pa. James K. Gardner 12/15/2011 Collective No Johnson v. Krapf's Coaches, Inc., 2:11-cv-06974-BMS E.D. Pa. Berle M. Schiller 2/22/2012 Collective No McCray v. The Progressions Companies, Inc., 2:11-cv-07364-HB E.D. Pa. Harvey Bartle, III 3/2/2012 Collective No Slator v. Allscripts-Misys Healthcare Solutions, Inc., 1:10-cv-01069-GLS-RFT N.D.NY Gary L. Sharpe 4/4/2012 Collective No Smith v. Ameriplan Corporation, 4:10-cv-00075-ALM E.D. Tx. Amos L. Mazzant 8/9/2012 Collective Yes In re Creditron Financial Corp. (Lepkowski v. Creditron Financial Corp.), 08-11289-TPA W.D. Pa. Bkr. Thomas P. Agresti 8/31/2012 Collective No Fazio v. Automotive Training Center, 2:11-cv-06282-DS E.D. Pa. David R. Strawbridge 9/24/2012 Collective No Jean-Charles v. AAA Warman Home Care LLC, No. 110702236 Phila.C.C.P. Mary Colins 9/28/2012 Class No Thomas v. Cescaphe Limited, LLC, 1:11-cv-04359-BMS E.D. Pa. Berle M. Schiller 10/3/2012 Class No Harkin v. LA Weight Loss, LLC, 2:12-cv-01411-AB E.D. Pa. Anita Brody 11/8/2012 Collective No Grajales v. Safe Haven Quality Care, LLC, 2010-cv-15102 Dauphin C.C.P. Andrew H. Dowling 11/8/2012 Class No Grayson v. Register Tapes Unlimited, Inc., et al., 8:11-cv-00887-RWT D. Md. Roger W. Titus 11/26/2012 Collective Yes Craig v. Rite Aid Corporation4:08-cv-02317-JEJ M.D. Pa. John E. Jones, III 1/7/2013 Class Yes Page 1 of 3 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 13 of 27 Winebrake & Santillo, LLC - Class/Collective Wage and Overtime Settlements and Judgments

Date of Co- Case Name Court Judge Type Approval/Judgment Counsel? Knecht v. Penn Psychiatric Center, 2:12-cv-00988-CSMW E.D. Pa. Carol S. Moore Wells 3/6/2013 Collective No Thompson v. RGT Management, Inc., 2:11-cv-02573-AJT W.D. Tenn. Arthur J. Tarnow 3/21/2013 Collective Yes Kelsh v. First Niagara Financial Group, Inc., 2:12-cv-01202-PBT E.D. Pa. Petrese B. Tucker 4/8/2013 Class No Stewart v. World Communications Charter School, 2:12-cv-04993-RB E.D. Pa. Ronald L. Buckwalter 5/9/2013 Class No Edelen v. American Residential Services, LLC, 8:11-cv-2744-DKC D. Md. Deborah K. Chasnow 7/22/2013 Class Yes Ciarrocchi v. Neshaminy Electrical Contractors, Inc., 2:12-cv-06419-JHS E.D. Pa. Joel H. Slomsky 9/5/2013 Collective No LeClair v. Diakon Lutheran Social Ministries, Case No. 2010-C-5793 Lehigh.C.C.P. Michele A. Varricchio 8/14/2013 Class Yes Essame v. SSC Laurel Operating Company, LLC, 8:10-cv-03519-WGC D. Md. William G. Connelly 10/16/2013 Class Yes Ming v. SNL Enterprises, L.P., 5:11-cv-03873-RBS E.D. Pa. Barclay R. Surrick 11/29/2013 Collective No Bolletino v. Cellular Sales of Knoxville, Inc. 3:12-cv-00138-TC-HBG E.D. Tenn. Tena Campbell 11/29/2013 Collective Yes Wagner v. Cali, 5:12-cv-03226-JLS E.D. Pa. Jeffrey L. Schmehl 1/23/2014 Collective No Ginter/Robinson-Gibbs v. RBS Citizens, NA., 1:12-cv-00008-M-PAS/1:13-cv-00182-PAS D.R.I. John J. McConnell, Jr. 2/4/2014 Class Yes Glatts v. Crozer-Keystone Health System, No. 090401314 Phila.C.C.P. Mark I. Bernstein 2/6/2014 Class Yes Galowitch v. Wells Fargo Bank, N.A., No. 130302298 Phila.C.C.P. Mark I. Bernstein 3/5/2014 Class No Young v. Tri County Security Agency, Inc., 2:13-cv-05971-BMS E.D. Pa. Berle M. Schiller 5/7/2014 Class No Cuevas v. Citzens Financial Group, Inc., 1:10-cv-05582-RM E.D.N.Y. Robert M. Levy 5/7/2014 Class Yes Sakalas v. Wilkes-Barre Hospital Company, LLC, 3:11-cv-00546-RDM M.D. Pa. Robert D. Mariani 5/8/2014 Class Yes Kershner v. Hat World, Inc., No. 120803352 Phila.C.C.P. Jacqueline F. Allen 5/29/2014 Class No Sacknoff v. Lehigh County, 5:13-cv-04203-EGS E.D. Pa. Edward G. Smith 7/18/2014 Collective No Oliver v. Abercrombie & Fitch Stores, Inc., No. 121102571 Phila.C.C.P. Jacqueline F. Allen 7/21/2014 Class No Kiefer v. Moran Foods, Inc., 3:12-cv-00756-WGY D. Conn. William G. Young 7/31/2014 Class Yes Lynch v. Lawrenceburg NH Operations, LLC, 1:13-cv-00129-WJH M.D. Tenn. William J. Haynes 9/26/2014 Collective Yes Farley v. Family Dollar Stores, Inc., et al., 1:12-cv-00325-RPM D. Colo. Raymond P. Moore 10/30/2014 Class Yes Warcholak v. Payless ShoeSource, Inc., No. 130901010 Phila.C.C.P. Idee C. Fox 10/30/2014 Class Yes Young v. Catherines, Inc., 2:13-cv-03288-CMR E.D. Pa. Cynthia M. Rufe 11/12/2014 Collective Yes Morrow v. County of Montgomery, 2:13-cv-01032-DS E.D. Pa. David R. Strawbridge 11/26/2014 Collective Yes Anderson v. The Scotts Company, LLC, No. 131100504 Phila.C.C.P. Idee C. Fox 12/3/2014 Class Yes Euceda v. Millwood, Inc., 3:12-cv-00895-MEM M.D. Pa. Malachy E. Mannion 12/9/2014 Class Yes Reid v. Newalta Environmental Services, Inc., 1:13-cv-03507-CMA-CBS D. Colo. Christine M. Arguello 2/19/2015 Collective Yes Stallard v. Fifth Third Bank, 2:12-cv-01092-MRH W.D. Pa. Mark R. Hornak 2/25/2015 Collective Yes Magloire v. The Ellison Nursing Group, LLC, No. 120203202 Phila.C.C.P. Jacqueline F. Allen 3/12/2015 Class No Beal v. Claire's Stores, Inc., No. 131001989 Phila.C.C.P. Idee C. Fox 3/18/2015 Class Yes Beck v. Bed Bath & Beyond Inc., No. 131100176 Phila.C.C.P. Idee C. Fox 3/18/2015 Class Yes Jones v. Alliance Inspection Management, LLC, 2:13-cv-01662-NBF-CRE W.D. Pa. Nora Barry Fischer 3/23/2015 Collective No Menendez v. Precise Point, Inc., et al., No. 140300610 Phila.C.C.P. Mary Colins 3/25/2015 Class No Calarco v. Healthcare Services Group, Inc., 3:13-cv-00688-RDM M.D. Pa. Robert D. Mariani 4/7/2015 Collective No Kelkis v. TruGreen Limited Partnership, No. 121101024 Phila.C.C.P. Jacqueline F. Allen 5/14/2015 Class Yes Chung v. Wyndham Vacation Resorts, Inc., 3:14-cv-00490-RDM M.D. Pa. Robert D. Mariani 6/15/2015 Collective No McMaster v. Earstern Armored Services, Inc., 3:11-cv-05100-TJB D.N.J. Tonianne J. Bongiovanni 6/24/2015 Collective No Valincius v. Express, Inc., No. 140702282 Phila.C.C.P. Idee C. Fox 6/24/2015 Class No Hoelsworth v. New York & Company, Inc., No. 140403750 Phila.C.C.P. Patricia A. McInerney 7/27/2015 Class No Puglisi. v. TD Bank, N.A., 2:13-cv-00637-GRB E.D.N.Y. Gary R. Brown 7/30/2015 Class Yes Mazzarella v. Fast Rig Support, LLC et al, 3:13-cv-02844-MEM M.D. Pa. Malachy E. Mannion 7/31/2015 Collective No Lappas v. The Scotts Company, LLC, No. 140904450 Phila.C.C.P. Idee C. Fox 8/5/2015 Class Yes Pew v. Finley Catering Co., Inc., 2:14-cv-04246 E.D. Pa. Marilyn Heffley 8/10/2015 Collective No James v. Ann, Inc., et. al, No. 140903652 Phila.C.C.P. Gary S. Glazer 8/17/2015 Class No Carroll v. Guardian Home Care Holdings, Inc., 3:14-cv-01722-WJH M.D. Tenn. William J. Haynes, Jr. 8/31/2015 Class Yes Morris v. M.D. Enterprises, et. al, 3:15-cv-00018-ARC M.D. Pa. A. Richard Caputo 10/5/2015 Class No Worthington v. Kymar Home Care, Inc. et al., No. 141203411 Phila.C.C.P. Gary S. Glazer 10/9/2015 Class No Acevedo v. Moon Site Management, Inc., 2:13-cv-06810 E.D. Pa. Timothy R. Rice 10/15/2015 Class Yes Neal v. Air Drilling Associates, Inc., 3:14-cv-01104-JMM M.D. Pa. James M. Munley 12/8/2015 Collective No

Page 2 of 3 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 14 of 27 Winebrake & Santillo, LLC - Class/Collective Wage and Overtime Settlements and Judgments

Date of Co- Case Name Court Judge Type Approval/Judgment Counsel? Ross v. Baha Petroleum Consulting Corp., 4:14-cv-00147-DLH-CSM D.N.D. Daniel L. Hovland 1/8/2016 Collective Yes Pacheco v. Vantage Foods, Inc., 1:14-cv-01127-CCC M.D. Pa. Christopher C. Connor 2/11/2016 Class Yes Ford et al v. Lehigh Valley Restaurant Group, Inc., 3:14-cv-00227-JMM M.D. Pa. James M. Munley 3/11/2016 Class No LaPan v. Dick's Sporting Goods, Inc., 1:13-cv-11390-RGS D. Mass. Richard G. Stearns 3/25/2016 Class Yes Stanek v. Keane Frac NC, LLC, 3:15-cv-01005-RDM M.D. Pa. Robert D. Mariani 3/25/2016 Class No Harrison v. Flint Energy Services, Inc., 4:15-cv-00962-MWB M.D. Pa. Matthew W. Brann 4/15/2016 Collective No Tavares v. S-L Distribution Co., Inc., 1:13-cv-01313-JEJ M.D. Pa. John E. Jones, III 5/2/2016 Class Yes Eld v. TForce Energy Services, Inc., Inc., 2:15-cv-00738-CB W.D. Pa. Cathy Bissoon 5/17/2016 Collective No Metzler, et al. v. Weis Markets, Inc., CV-15-2103 Northumberland .C.C.P. Charles H. Saylor 6/6/2016 Class Yes Alvarez, et al. v. KWLT, LLC, 5:14-cv-07075-JFL E.D. Pa. Joseph F. Leeson 6/9/2016 Collective Yes Hughes v. ACHIEVA Support, GD-15-003562 Allegheny C.C.P. R. Stanton Wettick, Jr. 7/7/2016 Class No DiClemente v. Adams Outdoor Advertising, Inc., 3:15-cv-00596-MEM M.D. Pa. Malachy E. Mannion 7/8/2016 Collective No George Johnson v. Kestrel Engineering, Inc., 2:15-cv-02575-EAS-EPD S.D. Ohio Edmund A. Sargus, Jr. 9/22/2016 Collective Yes Iwaskow v. JLJJ, Inc., 3:15-cv-01934-ARC M.D. Pa. A. Richard Caputo 9/28/2016 Collective No Fischer et al. v. Kmart Corporation, 3:13-cv-04116-DEA D.N.J. Douglas E. Arpert 11/2/2016 Class Yes Cikra et al v. Lami Products, LLC, 2:15-cv-06166-WB E.D. Pa. Wendy Beetlestone 11/10/2016 Class Yes Schaub v. Chesapeake & Delaware Brewing Company, LLC, 2:16-cv-00756-MAK E.D. Pa. Mark A. Kearney 11/14/2016 Class No Wajert v. Infocision Management Corporation, 2:15-cv-01325-DSC W.D. Pa. David S. Cercone 12/1/2016 Collective No DeLair v. CareAll Management, LLC, 3:15-cv-01095-AAT M.D. Tenn. Aleta A. Trauger 12/14/2016 Collective Yes Waggoner v. U.S. Bancorp, 5:14-cv-01626-SL N.D. Ohio Sara Lioi 12/26/2016 Collective Yes Loveland-Bowe v. National Healthcare Corporation, 3:15-cv-01084-WDC M.D. Tenn. Waverly D. Crenshaw, Jr. 1/5/2017 Collective Yes Paine v. Intrepid U.S.A., Inc., 3:14-cv-02005-WDC M.D. Tenn. Waverly D. Crenshaw, Jr. 1/6/2017 Collective Yes Flatt v. LHC Group, Inc. et al, 2:16-cv-00014-KHS M.D. Tenn. Kevin H. Sharp 3/1/2017 Collective Yes Smith et al v. Miller Flooring Company, Inc., 2:16-cv-00330-LAS E.D. Pa. Lynne A. Sitarski 3/13/2017 Collective No Crevatas v. Smith Managemant and Consulting, LLC, 3:15-cv-02307-MEM M.D. Pa. Malachy E. Mannion 3/22/2017 Collective Yes Hodzic v. FedEx Package System, Inc., 2:15-cv-00956-NBF W.D. Pa. Nora Barry Fischer 3/28/2017 Collective Yes Kelly v. FedEx Ground Package System, Inc., 3:08-cv-00336-RLM N.D. Ind. Robert L. Miller 4/28/2017 Class Yes Brackley v. Red Robin Gourmet Burgers, Inc., 2:16-cv-00288-GRB E.D.N.Y. Gary R. Brown 6/6/2017 Class Yes Kampfer v. Fifth Third Bank et al, 3:14-cv-02849-JJH N.D. Ohio Jeffrey J. Helmick 6/15/2017 Collective Yes Gauger v. Brothers, Inc., 2:16-cv-00603-DS E.D. Pa. David R. Strawbridge 6/15/2017 Collective No

Page 3 of 3 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 15 of 27

Attachment 2 6/22/2017 Case 4:16-cv-00469-MWBAttorn e yDocument Fees | Commun i51-2ty Lega l S eFiledrvices o 06/22/17f Philadelphia Page 16 of 27

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https://clsphila.org/about-cls/attorney-fees 1/1 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 17 of 27

Attachment 3 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 18 of 27

Winebrake & Santillo, LLC Time Detail Report Waltz v. Aveda Transportation and Energy Services, Inc., 4:16-cv-00469-MWB (M.D. Pa.)

Attorney/Staff Date Task Detail Time REV AND PAY INVOICES FOR DEPOSITIONS AND ADD CT REPORTERS TO CMS. Winebrake 10/8/2016 Administrative 0.2 (.2) Winebrake 3/17/2016 Legal Papers/Research REV AND EDIT DRAFTS OF CPL AND MTG W/ MJG RE SAME. (.6) 0.6 Winebrake 3/18/2016 Legal Papers/Research REV COMPLAINT, AS DOCKETED. (.1) 0.1 Winebrake 3/28/2016 Legal Papers/Research REV LET FR CT RE CASE MANAGEMENT PROCEDURES. (.1) 0.1 REV CONSENT FORM AS DOCKETED AND CK TO MAKE SURE ALL ANTERED INTO Winebrake 4/13/2016 Legal Papers/Research 0.1 CMS. (.1) REV PLF CONSENT FORM, AS DOCKETED AND MAKE VARIOUS ADJUSTMENTS TO Winebrake 4/18/2016 Legal Papers/Research 0.1 CMS. (.1) REV DOCKETED PROOF OF SERVICE FORMS AND CK TO AKE SURE ALL ENTERED Winebrake 4/25/2016 Legal Papers/Research 0.1 IN CMS. (.1) Winebrake 5/9/2016 Legal Papers/Research REV FONTANA ENTRY AND CK THAT HE IS LINKED TO CASE IN CMS. (.1) 0.1 Winebrake 5/9/2016 Legal Papers/Research REV PRO HAC PETITIONS FOR TEXAS ATTYS. (.1) 0.1 REV ORDER TRANSFERING CASE TO JUDGE BRANN AND CK TO MAKE SURE CMS Winebrake 5/12/2016 Legal Papers/Research 0.1 CHANGES=D ACCORDINGLY; ALSO REV ORDERS RE PRO HAC ADMISSION. (.1) Winebrake 5/13/2016 Legal Papers/Research REV CT'S INITIAL ORDER. (.1) 0.1 REV ANSWER AND CK TO MAKE SURE ALL ENTERED IN CMS AND THAT ALL DEF Winebrake 5/17/2016 Legal Papers/Research 0.2 CSL LISTED IN CMS. (.2) REV JUDGE BRANN'S ORDER SCH INITIAL CONFERENCE AND CK TO MAKE SURE Winebrake 5/17/2016 Legal Papers/Research 0.1 ALL DLNS ENTERED INTO CMS. (.1) Winebrake 5/25/2016 Legal Papers/Research REV DEF'S DISCLOSURE STATEMENT. (.1) 0.1 Winebrake 5/25/2016 Meeting MTG W/ RAS RE DEF'S DRAFT OF THE ICMP AND AND REVIEW SAME. (.3) 0.3 Winebrake 5/25/2016 Phone Call PC W/ DEF CSL RE THE ICMP AND MTG W/ RAS RE SAME. (.2) 0.2 REV RAS EDITS TO JCMP AND MAKE VARIOUS CHANGES AND MTG W/ HIM RE Winebrake 5/26/2016 Legal Papers/Research 0.2 SAME. (.2) Winebrake 5/31/2016 Legal Papers/Research REV FILED VERSION OF JCMP AND VAR ACC EMAILS LEADING UP TO SAME. (.2) 0.2

Winebrake 5/31/2016 Outgoing Correspondence EMAIL EXCH W/ DEF CSL RE DISCOVERY ISSUES; REV FILE AS NECCESSARY. (.2) 0.2 PREPARE FOR AND PARTICIPATE IN INITIAL CASE MANAGEMENT CALL W/ JUDGE Winebrake 6/2/2016 Court Appearance 1.2 BRANN. (1.2) REV RAS DRAFT OF AUTO DISCLOSURES; SUBSTANTIAL REVISIONS TO DRAFT Winebrake 6/2/2016 Discovery 2.5 INTERROGS AND DOC REQUESTS; FINALIZE AND SERVE SAME. (2.5) MTG W/ RAS AND MJG RE TODAY'S CLL W/ JUDGE AND PLAN GOING FORWARD. Winebrake 6/2/2016 Meeting 0.2 (.2) Winebrake 6/7/2016 Discovery REV DEF'S AUTO DISCLOSURES. (.1) 0.1 Winebrake 6/7/2016 Discovery PRELIM REV OF DEF'S INTERROGS AND DOC REQUESTS TO RANDY WALTZ. (.3) 0.3 Winebrake 6/28/2016 Incoming Correspondence REV ACC EMAILS. (.1) 0.1 REV CLARK DCL INDICATING THAT ONLY 9 MEMBERS OF COLLECTIVE;F CSL RE Winebrake 7/11/2016 Legal Papers/Research 0.1 SAME. (.1) Winebrake 7/12/2016 Legal Papers/Research MTG W. RAS AND MJG RE DISCOVERY ISSUES. (.3) 0.3 DRAFT REVISE FINALIZE AND SERVE RESPONSES TO DOCUMENT REQUESTS. Winebrake 7/13/2016 Discovery 1.8 (1.8) CK DEF'S DOC REQUESTS AGAINST THE ICMP AND SEND DEF EMAIL ASKING Winebrake 7/13/2016 Outgoing Correspondence 0.1 THEM TO LIMIT TO 25 REQUESTS. (.1) Winebrake 7/13/2016 Phone Call PC W/ MJG RE RESPONSES TO DISCOVERY REQUESTS. (.1) 0.1 Winebrake 7/15/2016 Discovery REV MJG DRAFT OF INTERROGATORY RESPONSES AND EMAIL HIM RE SAME. (.1) 0.1 Winebrake 7/19/2016 Discovery REV DEF'S INTERROGS AND DOC REQUESTS TO SOLINGER. (.2) 0.2 REV DEF'S DISCOVERY RESPONSES AND MTG W/ MJG RE OUR RESPONSE; REV Winebrake 7/19/2016 Discovery 0.5 MJG DRAFT OF EMAIL RE DEFICIENCIES. (.5) REV DEF'S PROPOSED CONFIDENTIALITY AGREEMENT AND EMAIL TO RAS AND Winebrake 7/25/2016 Legal Papers/Research 0.2 MJG RE SAME. (.2) Winebrake 8/1/2016 Legal Papers/Research REV CT ORDER AND CK TO MAKE SURE SAVED. (.1) 0.1 MTG W/ RAS RE STATUS AND DEF'S DISCOVERY TO DATE; REV FILE AS Winebrake 8/11/2016 Meeting 0.3 NECESSARY. (.3) REV VAR EMAILS FR DEF CSL AND EMAIL TO THEM REGARDING WHETHER Winebrake 8/11/2016 Outgoing Correspondence DOCUMENTS ARE GOING TO BE PRODUCED REGARDING THE CLASSIFICATION 0.1 DECUISION PER MJG'S 7/19 EMAIL. (.1) REV VAR DISCOVERY RESPONSES AND OTHER DOCS TO FIGURE OUT THE STATUS OF DISCOVERY; SEND DETAILED EMAIL TO DEF CSL RE VAR Winebrake 8/12/2016 Discovery 1.2 OUTSTANDING DISCOVERY ISSUES AND POSSIBILITY OF STIPULATING TO COND CERT. (1.2) REV SOLINGER'S RESPONSES TO DISCOVERY REQUESTS AND MTG W. MJG RE Winebrake 8/18/2016 Discovery 0.2 SAME. (.2) CALL ELD AND LV VM AND ALSO SEND HIM AN EMAIL Winebrake 9/1/2016 Outgoing Correspondence 0.1 REQUESTING CB. (.1) MTG W/ MJG RE CSTSTUS OF DISCOVERT AND DEPOSITIONS AND STRATEGY Winebrake 9/7/2016 Meeting 0.2 GOING FORWARD. (.2)

Page 1 of 10 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 19 of 27

Attorney/Staff Date Task Detail Time

DRAFT AND SERVE TIM CLARK DEPOSITION NOTICE AND DETAILED LETTER RE Winebrake 9/8/2016 Discovery 0.7 NEED TO LOCATE TIM CLARK AND PRODUCE HIM FOR DEPOSITION. (.7) Winebrake 9/8/2016 Discovery WORK ON 30B6 DEPOSITION NOTICE; FINALIZE AND SERVE SAME. (1.5) 1.5 Winebrake 9/9/2016 Discovery DRAFT AND SERVE SECOND INTERROGATORY. (.4) 0.4 REV AND RESPOND TO VAR DISCOVERY ISSUES RAISED IN DEF CSL'S DETAILED Winebrake 9/9/2016 Outgoing Correspondence 0.2 EMAIL OF TODAY. (.2) Winebrake 9/9/2016 Phone Call PC W/ DEF CSL RE VAR ISSUES. (.2) 0.2 Winebrake 9/13/2016 Discovery MTG W/ MJG RE THURS DEPOSITION OF WALTZ. (.2) 0.2 MTG W/ MJG RE DEPOSITIONS AND STATUS OF DISCOVERY AND THEN SEND Winebrake 9/13/2016 Meeting 0.1 EMAIL TO DEF CSL RE THE DEPOSITION DATES WE ARE STILL WAITING FOR. (.1) Winebrake 9/13/2016 Outgoing Correspondence EMAIL EXCH W/ DEF CSL RE DEPOSITION SCHEDULING. (.1) 0.1 MTG W/ MJG RE DEPOSITIONS AND DEPOSITION PREP AND STRATEGY GOING FORWARD; ALSO DISCUSS DEF'S MOTOR CARRIER DEFENSE AND AGREE THAT Winebrake 9/14/2016 Meeting 0.5 (.5) DRAFT DETAILED EMAIL TO DEF CSL RE OUTSTANDING DEPOSITIONS AND VAR Winebrake 9/15/2016 Outgoing Correspondence 0.2 FOLLOW-UP EMAILS RE SAME. (.2) Winebrake 9/15/2016 Phone Call PC W/ MJG RE TODAY'S DEPOSIIRIONS. (.3) 0.3 Winebrake 9/16/2016 Meeting MTG W/ RAS RE PLAN GOING FORWARD. (.1) 0.1 Winebrake 9/19/2016 Incoming Correspondence REV ACC EMAILS. (.1) 0.1 Winebrake 9/19/2016 Legal Papers/Research REV EMAILS FR DEF CSL RE DEPOSITIONS AND MTG W/ RAS RE SAME. (.2) 0.2 MTG W/ MJG RE DISCOVERY ISSUES AND TIM CLARK DEP AND THE DALLAS DEP; Winebrake 9/19/2016 Meeting 0.3 REV MJG DRAFTS OF SUBPOENA AND DEP NOTICE. (.3) Winebrake 9/19/2016 Phone Call PC W/ MJG AND GARY SOLINGER RE HIS UPCOMING DEPOSITION. (.2) 0.2 Winebrake 9/20/2016 Meeting MTG W. MJG RE THIS WEEKS DEP. (.2) 0.2 Winebrake 9/20/2016 Outgoing Correspondence VAR EMAILS EXXCHANGED W/ DEF CSL RE JANET CLARK DEPOSITION. (.1) 0.1 DRAFT AND SERVE FURTHER REVISED CLARK DEP NOTICE AND 30B6 DEP Winebrake 9/21/2016 Discovery 0.3 NOTICE. (.3) Winebrake 9/21/2016 Meeting MTG W/ RAS RE GENERAL LITIGATION STRATEGY. (.2) 0.2 Winebrake 9/21/2016 Phone Call PC W/ DEF CSL RE DEPS WE ARE TRYING TO SCHEDULE. (.1) 0.1 Winebrake 9/21/2016 Phone Call CONF CALL W/ MJG RE TOMORROW'S DEP AND OTHER DISCOVERY ISSUES. (.2) 0.2 REV DOCE RE SERVICE OF SUBPOENA FOR DEPOSITION OF TIM CLARK; CK CMS Winebrake 9/27/2016 Legal Papers/Research 0.1 TO MAKE SURE REMAINING DEPOSITION DATES ENTERED. (.1) REV MJG DRAFT OF MOTION TO EXTEND DLNS AND EDIT SAME AND MTG W/ HIM Winebrake 9/28/2016 Legal Papers/Research 0.2 RE SAME. (.2) Winebrake 10/11/2016 Meeting MTG W/ RAS AND MJG RE TOMORROW'S DEPOSITION, ETC. (.3) 0.3 MTG W/ MJG RE TOMORROW'S DEPOSIITON AND PRELIM REV OF VAR POTENTIAL Winebrake 10/11/2016 Meeting 0.5 EXHIBITS. (.5) Winebrake 10/12/2016 Discovery DEPOSITION OF TIM CLARK, INCL PREPARATION. (5.8) 5.8 Winebrake 10/12/2016 Meeting MTG W/ RAS AND MJG RE STRATEGY GOING FORWARD. (.3) 0.3 Winebrake 10/12/2016 Outgoing Correspondence EMAIL TO DEF CSL RE CANCELLATION FRIDAY'S DEPOSITIONS. (.1) 0.1 Winebrake 10/21/2016 Meeting MTG W/ MJG RE DEF'S REQUEST FOR LEAVE TO AMEND THE COMPLAINT. (.2) 0.2 REV VAR ACC CT FILINGS, IN CL AMENDED COMPLAINT, DEF'S REPLY BRIEF RE Winebrake 11/10/2016 Legal Papers/Research MOTION TO AMEND, AND CT'S ORDER RE SAME; VARIOUS ADJUSTMENTS TO 0.2 CMS. (.2) PC W/ CHAMBERS TO EXPLAIN THAT THE AMENDED ANSWER DOCKETED IS THE Winebrake 11/10/2016 Phone Call 0.1 REDLINE VERSION AND CLERK SAYS HE WILL HAVE THAT FIXED. (.1) PRELIM REV OF DEF'S CONDITIONAL CERTY OPPOSITION AND MTG W/ MJG RE Winebrake 11/15/2016 Legal Papers/Research 0.3 SAME. (.3) Winebrake 11/21/2016 Legal Papers/Research RESEARCH DRAFT REVISE FINALIZE AND FILE COND CERT REPLY BRIEF. (6.5) 6.5 Winebrake 11/22/2016 Legal Papers/Research REV AND SAVE CONDITIONAL CERT REPLY PAPERS, AS DOCKETED. (.2) 0.2 Winebrake 12/20/2016 Phone Call PC W/ GARY SOLINGER AND UPDATE HIM RE CASE STATUS. (.1) 0.1 Winebrake 12/28/2016 Legal Papers/Research REV CT'S ORDER AND OPINION GRANTING CONDITIONAL CERT MOTION. (.3) 0.3 DRAFT REVISE AND EMAIL TO DEF CSL DRAFT NOTICE AND CONSENT FORMS. Winebrake 1/2/2017 Legal Papers/Research 1.7 (1.7) REV VARIOUS PROPOSED STIPULATIONS RE PHONE NUMBERS AND MTG W/ MJG Winebrake 1/4/2017 Legal Papers/Research 0.2 RE SAME. (.2) REV DEF'S REDLINE OF THE NOTICE AND CONSENT FORMS AND AND ACCEPT Winebrake 1/5/2017 Legal Papers/Research THOSE CHANGES AND THEN DO MY OWN REDLINE AND RETURN TO DEF CSL W/ 0.6 A DETAILED EMAIL. (.6) EMAIL EXCH W/ DEF CSL MAKING CLEAR THAT Winebrake 1/5/2017 Outgoing Correspondence 0.1 (.1) VAR EMAILS W/ DEF CSL RE NOTICE AND CONSENT FORMS; FINALIZE SAME AND Winebrake 1/6/2017 Legal Papers/Research 0.5 DRAFT AND REVISE STIPULATED ORDER APPROVING SAME. (.5) Winebrake 1/6/2017 Legal Papers/Research FINALIZE AND FILE STOP AND PROPOSED ORDER RE NOTICE FORMS. (.1) 0.1 Winebrake 1/6/2017 Legal Papers/Research REV CT ORDER APPROVING STIP RE NOTICE AND CONSENT FORMS. (.1) 0.1

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Attorney/Staff Date Task Detail Time REV CT'S ORDER SCH CONF CALL AND CK TO MAKE SURE ALL ENTERED IN CMS. Winebrake 1/8/2017 Legal Papers/Research 0.1 (.1) REV MARK ORTIZ OPT-IN FORM AND CK THAT ALL ENTERED IN NEEDLES AND Winebrake 1/26/2017 Legal Papers/Research 0.1 VAR ADJUSTMENTS TO NEEDLES. (.1) REV JCMP AND MAKE SUNSTANTIAL CHANGES TO SAME; SEND REDLINE BACK Winebrake 1/30/2017 Legal Papers/Research 1.0 TO DEF CSL W/ DETAILED EMAIL. (1.0) REV DEF'S MARKUP OF MY PTOPOSED SUPPLEMENTAL JCMP AND FINALIZE AND Winebrake 1/30/2017 Legal Papers/Research 0.3 FILE SAME; EMAIL TO DEF CSL RE SAME. (.3) Winebrake 1/30/2017 Phone Call PC W/ DEF CSL RE SUPPLEMENTAL CASE MANAGEMENT PLAN. (.2) 0.2 Winebrake 2/3/2017 Legal Papers/Research REV TINKLE CONSENT FORM AND CK TO MAKE SURE ALL ENTERED. (.1) 0.1 Winebrake 2/7/2017 Court Appearance CONF CALL W/ JUDGE BRANN, INCL PREP AND PRELIMINARY PC W/ DEF CSL. (.5) 0.5 REV CT'S NEW SCH ORDER AND AND CK TO MAKE SURE ALL DLNS ENTERED Winebrake 2/7/2017 Legal Papers/Research 0.1 INSYSTEM. (.1) REV TOBY HAYNES CONSENT FORM AND CK TO MAKE SURE ALL CORRECTLY Winebrake 2/20/2017 Legal Papers/Research 0.1 ENTERED. (.1) REV DAVID CANADA CONSENT FORM AND CK TO MAKE SURE ALL ENTERED. Winebrake 2/27/2017 Legal Papers/Research 0.1 (.1) Winebrake 2/27/2017 Legal Papers/Research REV AND FILE JOHN TINKLE CONSENT FORM. (.2) 0.2 PC W/ JOHN TINKLE AND TELL HIM Winebrake 2/27/2017 Phone Call 0.2 (.2) Winebrake 2/27/2017 Phone Call PC W/ JOHN TINKLE AND ANSWERED VAR QS. (.1) 0.1 Winebrake 3/8/2017 Meeting MTG W/ MJG RE NEED TO GET OUT DISCOVERY REQUESTS FOR OPT-IN PLFS. (.1) 0.1 Winebrake 3/8/2017 Phone Call RETURN SHEEDER CALL AND LB MSG. (.0) 0.0 PC W/ SHEEDER Winebrake 3/8/2017 Phone Call 0.1 (,1) Winebrake 3/23/2017 Meeting MTG W. RAS AND MJG RE DAMAGES ANALYSIS. (.1) 0.1 REV DEF'S INTERROGATORIES AND DOC REQUESTS DIRECTED TO THE OPT-IN Winebrake 4/3/2017 Discovery 0.2 PLFS AND CK TO MAKE SURE THAT ALL DLNS ENTERED INTO CMS. (.2) MEET W/ MJG AND RAS TO REVIEW PRELIMINARY DAMAGES ANALYSIS AND Winebrake 4/3/2017 Meeting 0.4 ASSOCIATED SPREADSHEETS. (.4) FINAL REV OF DAMAGES ESTIMATE; DETAILED EMAIL TO DEF CSL ATTACHING Winebrake 4/3/2017 Outgoing Correspondence (FOR SETTLEMENT PURPOSES ONLY) SPREADSHEETS AND DESCRIBING 0.4 DAMAGES AND ASKING VAR QS RE PLAN GOING FORWARD. (.4) Winebrake 4/5/2017 Phone Call PC W/ DEF CSL RE DAMAGES ANALYSIS AND PLAN GOING FORWARD. (.1) 0.1 Winebrake 4/14/2017 Legal Papers/Research REV NEW DAMAGES SPREADSHEET AND MTG W/ MJG RE SAME. (.2) 0.2 DRAFT REVISE FINALIZE AND SEND DETAILED EMAIL MAKING OPENING Winebrake 4/14/2017 Outgoing Correspondence 0.2 SETTLEMENT DEMAND. (.2) MTG W/ RAS AND MJG RE DEF'S SETTLEMENT OFFER AND OUT NEXT MOVE; REV Winebrake 4/21/2017 Meeting 0.2 REVISED DAMAGES TABLE ACCIORDINGLY. (.2) DRAFT REVISE AND SEND EMAIL TO DEF CSH RESPONDING TO OFFER BY Winebrake 4/21/2017 Legal Papers/Research 0.2 DEMANDING ALL-IN. (.2) REV DEF EMAIL OFFERING AND PC W/ WALTZ RE SAME; THEN RESPOND Winebrake 4/25/2017 Settlement TO DEF CSL BY MOVING TO AFTER REVIEWIGN DAMAGES TABLE AND 0.4 MEETING W/ MJG. (.4) Winebrake 4/26/2017 Settlement EMAIL EXCH W/ DEF CSL RESULTS IN LOWERING DEMAND TO (.1) 0.1 DRAFT REVISE AND SEND TO DEF CSL PROPOSED TEMPLATE SETTLEMENT Winebrake 4/26/2017 Legal Papers/Research 1.2 AGREEMENT. (1.2) EMAIL TO DEF CSL CONFIRMING THAT WE ACCEPT OFFER AND INQUIRING Winebrake 5/9/2017 Outgoing Correspondence 0.1 ABOUT THE TEMPLATE AGREEMENT. (.1) REV DEF'S MARKUP OF THE TEMPLATE AGREEMENT AND ACCEPT ALL CHANGES Winebrake 5/10/2017 Legal Papers/Research 1.0 AND THEN MAKE ADDITIONAL CHANGES; EMAIL SAME TO DEF CSL. (1.0) Winebrake 5/11/2017 Settlement VAR MTGS W/ RAS AND MJG RE ALLOCATION ISSUES. (.3) 0.3 Winebrake 5/11/2017 Phone Call PC W/ WALTZ AND MJG RE ALLOCATION ISSUES. (.3) 0.3 REV DEF'S FURTHER REVISIONS TO TEMPLATE SETTLEMENT AGREEMENT AND Winebrake 5/11/2017 Legal Papers/Research 0.5 FINALIZE SAME. (.5) PC WITH NAMED PLAINTIFF TO DRAFT AUTO DISCLOSURES AND FIRST SET OF Santillo 6/1/2016 Discovery 2.1 DISCOVERY, DRAFT, EDIT AND REVISE SAME (2.1) Santillo 3/18/2016 Legal Papers/Research READ COMPLAINT AS DOCKETED (.1) 0.1 Santillo 5/10/2016 Legal Papers/Research READ ADMISSION ORDERS AND UPDATE CMS RE SAME (.1) 0.1 Santillo 5/12/2016 Legal Papers/Research MEET WITH PDW RE TEXAS CASE (.2) 0.2 Santillo 5/17/2016 Incoming Correspondence READ COURT'S SCHEDULING ORDER (.1) 0.1 Santillo 5/20/2016 Incoming Correspondence PC WITH DEF COUNSEL RE RULE 26 REPORT (.1) 0.1 Santillo 5/23/2016 Incoming Correspondence EMAIL EXCHANGE WITH DEF COUNSEL RE RULE 26(F) CONFERENCE (.1) 0.1 Santillo 5/24/2016 Incoming Correspondence READ DEF DISCLOSURE STATEMENT (.1) 0.1 REVIEW DRAFT OF JCMP, PC WITH DEF COUNSEL RE SAME AND MEET WITH PDW Santillo 5/25/2016 Legal Papers/Research RE SAME. MAKE SUBSTANTIAL EDITS TO JCMP IN ACCORDANCE WITH COURT'S 1.1 CALENDAR (1.1) Santillo 5/26/2016 Meeting MEET WITH PDW RE EDITS TO JCMP AND MAKE SAME AND SEND TO DEF (.5) 0.5 REVIEW EDITS BY DEF TO JCMP, MEET WITH PDW AND MAKE SUBSTANTIAL Santillo 5/27/2016 Legal Papers/Research 0.5 CHANGES TO SAME AND SEND TO DEF (.5)

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Attorney/Staff Date Task Detail Time Santillo 5/27/2016 Legal Papers/Research FINALIZE AND FILE JPML (.3) 0.3 MEET WITH PDW RE TODAY'S CONF WITH COURT AND READ AUTO Santillo 6/2/2016 Meeting 0.5 DISCLOSRUES AND ROGS AND DOCUMENT REQUESTS SERVED BY PDW (.5) Santillo 6/24/2016 Phone Call PC WITH DEF COUNSEL RE EXTENSION. READ EMAIL CONFIRMING SAME (.2) 0.2 Santillo 7/12/2016 Meeting MEETING WITH MJG AND PDW RE RESPONSES TO DISCOVERY (.3) 0.3 READ PDW RESPONSES TO DOCUMENT REQUESTS AND PROOF READ AND EDIT Santillo 7/14/2016 Discovery 0.4 MJG RESPONSES TO INTERROGATORIES (.4) Santillo 7/16/2016 Legal Papers/Research PRELIMINARY REVIEW OF DEF RESPONSES TO WRITTEN DISCOVERY (.2) 0.2 READ MJG EMAIL RE DISCOVERY DEFICIENCIES AND ROGS AND DOC REQUESTS Santillo 7/20/2016 Discovery 0.2 SERVED BY DEF (.2) Santillo 8/21/2016 Legal Papers/Research READ SOLINGER'S RESPONSES TO DISCOVERY REQUESTS (.1) 0.1 Santillo 9/7/2016 Meeting MEET WITH MJG RE DEPOSITION SCHEDULE (.1) 0.1 MEET WITH PDW AND MJG RE DEP SCHEDULE AND STRATEGY GOING FORWARD Santillo 9/8/2016 Meeting 0.3 (.3) Santillo 9/9/2016 Meeting ADDITIONAL MEETINGS WITH MJG AND PDW RE AVEDA (.2) 0.2 MEETING WITH PDW AND PC WITH MJG RE DEPOSITIONS, READ PDW'S NEW Santillo 9/21/2016 Meeting 0.5 30(B)(6) NOTICE (.5) Santillo 10/3/2016 Legal Papers/Research READ COURT ORDER AND UPDATE CALENDAR RE SAME (.1) 0.1 PC WITH PDW AND MEET WITH MJG RE DEPOSITION NEXT WEEK. PRELIMINARY Santillo 10/4/2016 Phone Call 0.3 LOOK AT TRAVEL PLANS (.3) MTG W/ PDW AND MJG RE TOMORROW'S DEPOSITION, ETC. AND COMPILE Santillo 10/11/2016 Meeting 0.8 DOCUMENTS FOR DEPOSITION I AM TAKING ON FRIDAY. (.8) VARIOUS MEETINGS WITH PDW AND MJG RE DEPOSITION TODAY AND Santillo 10/12/2016 Meeting 0.6 STRATEGY GOING FORWARD (.6) Santillo 10/26/2016 Legal Papers/Research READ MOTION TO AMEND ANSWER BY DEF AS DOCKETED. (.2) 0.2 READ PLF NON-OPPOSITION TO MOTION TO AMEND, DEF'S REPLY BRIEF AND PLF Santillo 11/1/2016 Legal Papers/Research 0.5 MOTION FOR CONDITIONAL CERT (.5) Santillo 11/8/2016 Legal Papers/Research READ ORDER AND DEF AMENDED ANSWER (.1) 0.1 Santillo 11/15/2016 Legal Papers/Research PRELIMINARY READ OF DEF OPPOSITION TO CONDITIONAL CERT (.3) 0.3 Santillo 11/22/2016 Legal Papers/Research READ REPLY PACKAGE AS DOCKETED (.1) 0.1 READ COURT ORDER AND OPINION ON CONDITION CERT, MEET WITH PDW RE Santillo 12/28/2016 Legal Papers/Research 0.2 SAME AND CALENDAR DEADLINE FOR NOTICE (.2) READ DEF REDLINE EDITS TO NOTICE, REVIEW COURT'S DECISION ON SAME Santillo 1/4/2017 Legal Papers/Research 0.2 LANGUAGE IN GRANT AND MEET WITH PDW RE SAME (.2) Santillo 3/23/2017 Legal Papers/Research WORK ON DAMAGES MODEL AND MEET WITH PDW AND MJG RE SAME (.9) 0.9 Santillo 3/29/2017 Legal Papers/Research READ BRANN FLSA CERTIFICATION DECISION (.4) 0.4 Santillo 3/29/2017 Legal Papers/Research WORK WITH MJG ON DAMAGES MODEL (.3) 0.3 MEET WITH MJG AND PDW RE DAMAGES MODEL AND READ EMAILS RE SAME Santillo 4/3/2017 Meeting 0.5 (.5) Santillo 4/17/2017 Incoming Correspondence REVIEW SETTLEMENT DEMAND AND REVISED DAMAGES MODEL (.2) 0.2 Gottesfeld 2/2/2016 Administrative OPENED CASE IN NEEDLES. (.1) 0.1 PC W/ CLT.

Gottesfeld 1/29/2016 Phone Call 0.4

Gottesfeld 2/2/2016 Legal Papers/Research STARTED DRAFTING COMPLAINT. (2.3) 2.3 PC W/ CLT RE: FILING OF COMPLAINT. HE IS GOING TO Gottesfeld 2/2/2016 Phone Call 0.2 AND WILL ALSO (.2) Gottesfeld 2/11/2016 Legal Papers/Research ADD'L WORK ON COMPLAINT TO ADD SECOND DEFENDANT. (.8) 0.8 Gottesfeld 2/11/2016 Phone Call PC W/ CLT. (.1) 0.1 SENT EMAIL TO GARY SOLINGER ASKING HIM TO AND Gottesfeld 2/16/2016 Outgoing Correspondence 0.1 (.1) PC W/ RANDY WALTZ. HE SAID HE WILL Gottesfeld 2/16/2016 Phone Call 0.2 HE ALSO SAID THAT

PC W/ GARY SOLINGER WHO ALSO WORKED AT AVEDA. HE Gottesfeld 2/16/2016 Phone Call 0.2

FINISHED DRAFTING COMPLAINT. MEETING W/ PDW RE: SAME. FILED Gottesfeld 3/17/2016 Legal Papers/Research 3.9 COMPLAINT ELECTRONICALLY. (3.9) PC W/ RANDY WALTZ AND TOLD HIM THAT AND THAT Gottesfeld 3/17/2016 Phone Call 0.1

(.1) CONTACT INFORMATION FOR GARY SOLINGER - Gottesfeld 3/18/2016 Administrative 0.1 (.1) Gottesfeld 3/18/2016 Legal Papers/Research DRAFTED CONSENT FORM FOR NAMED PLAINTIFF AND POTENTIAL OPT-INS. (.3) 0.3 Gottesfeld 3/18/2016 Legal Papers/Research REV'D COMPLAINT AND SUMMONS AS DOCKETED. (.1) 0.1

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Attorney/Staff Date Task Detail Time SENT LETTER TO CLT ATTACHING DOCKETED COMPLAINT AND CONSENT FORM Gottesfeld 3/18/2016 Outgoing Correspondence 0.2 FOR HIM TO SIGN. (.2) LEFT VM FOR GARY SOLINGER ASKING HIM TO Gottesfeld 3/29/2016 Phone Call 0.1 (.1) Gottesfeld 4/12/2016 Incoming Correspondence REC'D SIGNED CONSENT FORM FROM PLAINTIFF VIA EMAIL. (.1) 0.1 Gottesfeld 4/12/2016 Legal Papers/Research FILED EXECUTED CONSENT FORM FROM RANDY. (.1) 0.1 Gottesfeld 4/12/2016 Legal Papers/Research REV'D DOCKETED CONSENT FORM FOR RANDY. (.1) 0.1 Gottesfeld 4/12/2016 Outgoing Correspondence SENT CONSENT FORM TO NAMED PLAINTIFF VIA DOCUSIGN. (.1) 0.1 REV'D CONSENT FORM AS SIGNED BY GARY SOLINGER AND REDACTED PHONE Gottesfeld 4/15/2016 Incoming Correspondence 0.1 NUMBER FOR FILING. (.1) Gottesfeld 4/15/2016 Legal Papers/Research FILED GARY SOLINGER'S CONSENT FORM. (.1) 0.1 Gottesfeld 4/15/2016 Legal Papers/Research REV'D CONSENT FORM AS DOCKETED FOR GARY SOLINGER. (.1) 0.1 EMAIL TO GARY SOLINGER ATTACHING SEPERATE Gottesfeld 4/15/2016 Outgoing Correspondence 0.2 EMAIL TO GARY SOLINGER ATTACHING (.2) PC W/ COLIN ELD AND HE SAID HE WILL SEE IF ANYONE IS INTERESTED IN Gottesfeld 4/15/2016 Phone Call 0.1 JOINING CASE. (.1) Gottesfeld 4/15/2016 Phone Call PC W/ GARY SOLINGER AND HE (.1) 0.1 REV'D EMAIL FROM PROCESS SERVER ATTACHING PROOF OF SERVICE FORMS. Gottesfeld 4/25/2016 Incoming Correspondence 0.1 (.1) Gottesfeld 4/25/2016 Legal Papers/Research FILED PROOF OF SERVICE FORMS FOR BOTH DEFENDANTS. (.1) 0.1 Gottesfeld 4/25/2016 Legal Papers/Research REV'D PROOF OF SERVICE FORMS AS DOCKETED. (.1) 0.1 Gottesfeld 5/13/2016 Legal Papers/Research READ DEF'S ANSWER. (.1) 0.1 Gottesfeld 5/16/2016 Legal Papers/Research REV'D COURT'S SCHEDULING ORDER AND ENTERED DATES INTO CALENDAR. (.1) 0.1 Gottesfeld 5/23/2016 Legal Papers/Research READ DEF'S DISCLOSURE STATEMENT. (.1) 0.1 Gottesfeld 7/11/2016 Discovery THOROUGH REVIEW OF DEF'S DISCOVERY REQUESTS IN CASE. (.4) 0.4 Gottesfeld 7/11/2016 Outgoing Correspondence SENT EMAIL TO RANDY WALTZ ASKING HIM TO (.1) 0.1 SENT EMAIL TO DEF. CSL. ASKING FOR WORD VERSION OF DEF'S DISCOVERY Gottesfeld 7/11/2016 Outgoing Correspondence 0.1 REQUESTES. (.1) Gottesfeld 7/11/2016 Phone Call LEFT VM FOR RANDY WALTZ ASKING HIM TO CALL ME BACK. (.0) 0.0 Gottesfeld 7/12/2016 Meeting MEETING W/ PDW AND RAS RE: DEF'S FIRST SET OF DISCOVERY REQUESTS. (.2) 0.2 Gottesfeld 7/13/2016 Phone Call PC W/ PDW RE: DEF'S DOCUMENT REQUESTS. (.1) 0.1 CALLED RANDY WALTZ. HE HE SAID Gottesfeld 7/13/2016 Phone Call 0.1 (.1) Gottesfeld 7/13/2016 Phone Call PC W/ DEF. CSL. BOB RE: NARROWING DOWN DEF'S DOCUMENT REQUESTS. (.1) 0.1 Gottesfeld 7/13/2016 Phone Call PC W/ PDW RE: WALTZ'S DOC. PRODUCTION. (.1) 0.1 PC W/ RANDY WALTZ TO GO OVER DEF'S INTERROGATORY REQUESTS. ALSO, HE Gottesfeld 7/13/2016 Phone Call 0.4 (.4) DRAFTED PLAINTIFF'S REPSONSES TO INTERROAGTORY REQUETS AND MEETING Gottesfeld 7/14/2016 Discovery 2.2 W/ RAS RE: SAME. (2.2) Gottesfeld 7/14/2016 Outgoing Correspondence EMAIL TO GARY SOLINGER REMINDING HIM TO SEND ME HIS DOCS. (.1) 0.1 Gottesfeld 7/14/2016 Outgoing Correspondence EMAIL PDW DRAFT OF INTERROGATORY RESPONSES. (.1) 0.1 Gottesfeld 7/14/2016 Phone Call LEFT VM FOR GARY SOLINGER ASKING HIM TO CALL ME BACK. (.1) 0.1 PC W/ GARY SOLINGER. ASKED HIM TO Gottesfeld 7/14/2016 Phone Call 0.1 (.1) SERVED FIRST SET OF INTERROGATORY RESPONSES AND DOCUMENTS P/WALTZ- Gottesfeld 7/15/2016 Discovery 0.3 000001-P/WALTZ-000020 VIA REG. MAIL. COPY SENT BY EMAIL. (.3) Gottesfeld 7/19/2016 Discovery CLOSE REVIEW OF DEF'S DISCOVERY RESPONSES. (.4) 0.4 Gottesfeld 7/19/2016 Meeting MEETING W/ PDW RE: DEF'S DISCOVERY RESPONSES. (.3) 0.3 Gottesfeld 7/19/2016 Outgoing Correspondence DRAFTED EMAIL TO DEF. CSL. RE: SEVERAL DISCOVERY DEFICIENCIES. (.3) 0.3 PC FROM DEF. CSL, Gottesfeld 7/20/2016 Phone Call 0.1

REV'D PROTECTIVE ORDER AND EMAIL TO DEF. CSL. SAYING IT IS OK AND Gottesfeld 7/25/2016 Legal Papers/Research 0.3 ASKING THEM TO FILE. (.3) SENT INTERROGATORY RESPONSES TO CLT FOR HIS REVIEW VIA EMAIL AND A Gottesfeld 7/26/2016 Outgoing Correspondence 0.2 VERIFICATION FORM VIA DOCUSIGN. (.2) Gottesfeld 7/26/2016 Outgoing Correspondence EMAIL TO DEF. CSL. RE: DOC. PRODUCTION. (.1) 0.1 Gottesfeld 7/27/2016 Outgoing Correspondence EMAIL TO DEF. CSL. RE: FILING OF PROTECTIVE ORDER. (.1) 0.1 EMAIL TO DEF. CSL. ASKING FOR WORD VERSION OF SOLINGER'S DISCOVERY Gottesfeld 8/2/2016 Outgoing Correspondence 0.1 REQUESTS. (.1) PC W/ OPT-IN GARY SOLINGER TO GO OVER HIS DISCOVERY RESPONSES. HE Gottesfeld 8/2/2016 Phone Call 0.4 (.4) Gottesfeld 8/4/2016 Outgoing Correspondence EMAIL TO DEF. CSL. RE: THEIR DOCUMENT PRODUCTION. (.1) 0.1 Gottesfeld 8/6/2016 Discovery UPLOADED DOCS PRODUCED BY DEF. (.1) 0.1

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Attorney/Staff Date Task Detail Time DRAFTED AND FINAZLIED SOLINGER'S RESPONSES TO DEF.'S FIRST SET OF Gottesfeld 8/18/2016 Discovery 2.1 DISCOVERY REQUETS. SERVED VIA REG. MAIL. (2.1) DRAFTED VERIFICAITON FORM FOR GARY SOLINGER TO SIGN AND SENT COPY Gottesfeld 8/22/2016 Discovery OF DISCOVERY RESPONSES TO HIM VIA EMAIL AND A SEPERATE EMAIL TO HIM 0.2 VIA DOCUSIGN CONTAINING VERIFICATION FORM. (.2) SUBMITTED SIGNED VERIFICATION FROM GARY SOLINGER TO HIS Gottesfeld 8/24/2016 Discovery 0.1 INTERROGATORY RESPONSES TO DEF. CSL. (.1) LEFT VMS FOR RANDY WALTZ AND GARY SOLINGER ASKING THEM TO Gottesfeld 8/25/2016 Phone Call 0.0 (.0) PC W/ RANDY WALTZ. HE CAN Gottesfeld 8/25/2016 Phone Call 0.1 ASKED HIM TO (.1) PC W/ GARY SOLINGER. HE WILL Gottesfeld 8/25/2016 Phone Call 0.1 (.1) REVIEW OF DEF'S DISCOVERY RESPONSES AND DOCUMENTS FOR NAMES OF Gottesfeld 8/29/2016 Discovery 0.5 DEPONENTS. (.5) Gottesfeld 8/29/2016 Meeting MEETING W/ PDW RE: DEPOSITION SCHEDULING IN CASE. (.2) 0.2 Gottesfeld 8/29/2016 Outgoing Correspondence EMAIL TO DEF. CSL. PROVIDING DATES OF DEPOSITIONS. (.2) 0.2 PC W/ GARY SOLINGER. ASKED HIM TO Gottesfeld 8/29/2016 Phone Call 0.1 (.1) PC W/ RANDY WALTZ AND HE SAID Gottesfeld 8/29/2016 Phone Call 0.1

PC FROM BOB, DEF. CSL, STATING THAT TOLD HIM Gottesfeld 8/30/2016 Phone Call 0.2 TOLD HIM THAT

Gottesfeld 8/30/2016 Phone Call LEFT VM FOR GARY SOLINGER ASKING HIM TO (.0) 0.0 INDPENDENT RESEARCH INTO ADDRESS OF KRISTEN EDKIN AND TIMOTHY Gottesfeld 8/31/2016 Investigation 0.3 CLARK. (.3) Gottesfeld 8/31/2016 Meeting MEETING W/ PDW RE: CASE. (.1) 0.1 Gottesfeld 8/31/2016 Outgoing Correspondence EMAIL TO RANDY WALTZ ASKING HIM TO (.1) 0.1 Gottesfeld 8/31/2016 Outgoing Correspondence DRAFTED EMAIL TO DEF. CSL. RE; SCHEDULING OF DEPOSITIONS. (.2) 0.2 PC W/ GARY SOLINGER. HE CAN Gottesfeld 8/31/2016 Phone Call 0.1

Gottesfeld 8/31/2016 Phone Call LEFT VM FOR RANDY WALTZ ASKING HIM TO (.1) 0.1 EMAIL TO DEF. CSL. PROVIDING 4 DATES ON WHICH WALTZ IS AVAILABLE TO SIT Gottesfeld 9/1/2016 Outgoing Correspondence 0.1 FOR HIS DEPOSITION. (.1) Gottesfeld 9/1/2016 Outgoing Correspondence EMAIL TO DEF. CSL. SUMMARIZING TODAY'S PC. (.2) 0.2 PC FROM DEF. CSL.

Gottesfeld 9/1/2016 Phone Call 0.2

Gottesfeld 9/1/2016 Phone Call LEFT VM FOR SOLINGER ASKING HIM TO CALL ME BACK. (.0) 0.0 PC W/ WALTZ AND TOLD HIM Gottesfeld 9/1/2016 Phone Call 0.1 (.1) PC FROM BOB AND Gottesfeld 9/2/2016 Phone Call 0.1

SENT EMAIL TO SOLINGER ASKING HIM TO Gottesfeld 9/6/2016 Outgoing Correspondence 0.1 (.1) PC FROM DEF. CSL, CLAY, ASKING IF I HE SAID HE Gottesfeld 9/6/2016 Phone Call 0.1 (.1) Gottesfeld 9/6/2016 Phone Call LEFT VM FOR GARY SOLINGER ASKING HIM TO CALL ME BACK. (.0) 0.0 READ EMAIL FROM DEF. CSL. AGREEING TO TAKE SOLINGER'S DEPOSITION ON Gottesfeld 9/7/2016 Incoming Correspondence 0.1 SEPT. 16. (.1) Gottesfeld 9/7/2016 Legal Papers/Research DRAFTED 30(B)(6). (2.2) 2.2 Gottesfeld 9/7/2016 Legal Papers/Research DRAFTED LETTER TO DEF. CSL. (1.3) 1.3 MEETING W/ PDW RE: CASE AND NEED FOR 30(B)(6) AND LETTER TO DEF. CSL. Gottesfeld 9/7/2016 Meeting 0.3 (.3) Gottesfeld 9/7/2016 Meeting MEETING W/ RAS RE: DEFENDING OF DEPOSITIONS. (.1) 0.1

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Attorney/Staff Date Task Detail Time SENT EMAIL TO BOB SHEEDER PROVIDING DATES OF DEPOSITIONS NEXT WEEK Gottesfeld 9/7/2016 Outgoing Correspondence 0.1 FOR GARY SOLINGER. (SEPTEMBER 13, 14, 15, AND 16). (.1) SENT EMAIL TO SOLINGER TELLING HIM THAT DEPOSITION IS ON SEPT. 16 BUT Gottesfeld 9/7/2016 Outgoing Correspondence 0.1 ASKING HIM TO CONFIRM RECEIPT. (.1) PC W/ RANDY WALTZ TELLING HIM THAT Gottesfeld 9/7/2016 Phone Call TOLD HIM 0.1 (.1) PC W/ GARY SOLINGER. HE IS Gottesfeld 9/7/2016 Phone Call 0.1 (.1) PC W/ BOB SHEEDER. TOLD HIM SOLINGER AVAILABLE IN MIDLAND, TX ON 13, 14, 15, AND 16. Gottesfeld 9/7/2016 Phone Call 0.1 - LEFT VM FOR SOLINGER ASKING HIM TO TOLD HIM ON VM Gottesfeld 9/7/2016 Phone Call THAT 0.0 (.0) Gottesfeld 9/7/2016 Phone Call TRIED CALLING SOLINGER BUT DID NOT LEAVE VM. (.0) 0.0 NUMEROUS MEETINGS W/ PDW RE: CORRESPONDENCE TO DEF. CSL, 30(B)(6), Gottesfeld 9/8/2016 Meeting 1.0 DEPOSITIONS, AND CASE IN GENERAL. (1.0) UPLOADED ADD'L DOCUMENTS REC'D IN THE MAIL TODAY FROM DEF AND Gottesfeld 9/9/2016 Discovery 0.5 QUICK PRELIMINARY REVIEW. (.5) Gottesfeld 9/9/2016 Incoming Correspondence READ EMAIL FROM DEF. CSL. CHANGING DATE FOR SOLINGER'S DEPOSITION. (.1) 0.1 EMAIL TO DEF. CSL. CONFIRMING SEP. 22 DATE FOR SOLINGER IN MIDLAND, TX. Gottesfeld 9/9/2016 Outgoing Correspondence 0.1 (.1) Gottesfeld 9/9/2016 Outgoing Correspondence EMAIL TO WALTZ PROVIDING HIM W/ DATE AND LOCATION OF DEPOSITION. (.1) 0.1 PC W/ OPT-IN GARY SOLINGER AND TOLD HIM THAT Gottesfeld 9/9/2016 Phone Call 0.1 TOLD HIM WE Gottesfeld 9/13/2016 Discovery THOROUGH REVIEW OF DEF'S DOCUMENT PRODUCTION. (5.6) 5.6 Gottesfeld 9/13/2016 Meeting MEETING W/ PDW RE: CASE. (.2) 0.2 PC W/ WALTZ. HE Gottesfeld 9/13/2016 Phone Call 0.2 (.2) Gottesfeld 9/13/2016 Phone Call PC W/ REX BURCH RE: MOTOR CARRIER ACT EXEMPTION. (.2) 0.2 Gottesfeld 9/14/2016 Investigation RESEARCH RE: GVWR OF DODGE RAMS 1500 AND 2500. (.6) 0.6 Gottesfeld 9/14/2016 Legal Papers/Research READ CASELAW RE: MOTOR CARRIER ACT EXEMPTION. (2.0) 2.0 PC W/ RANDY WALTZ TO FURTHER PREP HIM RE: HIS DEPOSITION TOMORROW. Gottesfeld 9/14/2016 Phone Call 0.3 (.3) DEFENDED RANDY WALTZ'S DEPOSITION IN WILLIAMSPORT, PA. MEETING W/ Gottesfeld 9/15/2016 Deposition 12.2 CLT BEFORE AND AFTER. TRAVEL TO AND FROM. (12.2) EMAIL TO SOLINGER PROVIDING HIM W./ LOCATION OF DEPOSITION FOR NEXT Gottesfeld 9/15/2016 Outgoing Correspondence 0.1 WEEK. (.1) ARRANGED FOR TRAVEL PLANS TO MIDLAND, TX FOR NEXT WEEKS' DEPOSITION Gottesfeld 9/16/2016 Miscellaneous 0.5 OF GARY SOLINGER. (.5) SENT EMAIL TO GARY SOLINGER PROVIDING UDPATED ADDRESS OF HIS Gottesfeld 9/16/2016 Outgoing Correspondence 0.1 DEPOSITION ON THURSDAY. (.1) LEFT VM FOR CLT ASKING HIM TO Gottesfeld 9/16/2016 Phone Call 0.1 (.1) Gottesfeld 9/17/2016 Phone Call TRIED CALLING CLT BUT HE DID NOT PICK UP. (.0) 0.0 Gottesfeld 9/19/2016 Discovery REV'D DEF'S THIRD SUPPLEMENTAL DOCUMENT PRODUCTION. (1.8) 1.8 TRIED CALLING CLT BUT Gottesfeld 9/19/2016 Phone Call 0.1 (.1) PC W/ GARY SOLINGER ON HIS WORK PHONE AND CONFIRMED Gottesfeld 9/19/2016 Phone Call 0.1

PC FROM GARY SOLINGER AND PDW ON THE PHONE. SOLINGER CONFIRMED Gottesfeld 9/19/2016 Phone Call 0.1 DW SPOKE TO HIM ABOUT PC W/ PDW RE: 30(B)(6) DEPOSITION NOTICE AND GARY SOLINGER'S DEPOSITION. Gottesfeld 9/21/2016 Phone Call 0.2 (.2) PC W/ GARY SOLINGER TO PREP HIM FOR TOMORROW'S DEPOSITION. HE Gottesfeld 9/21/2016 Phone Call 0.3 (.3) TRAVEL FROM PHILADELPHIA TO MIDLAND, TX FOR GARY SOLLINGER Gottesfeld 9/21/2016 Travel DEPOSITION. LAYOVER IN DALLS. REV'D FILE AND NOTES IN PREPERATION FOR 6.2 DEPOSITION. (6.2)

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Attorney/Staff Date Task Detail Time DEFENDED DEPOSITION OF GARY SOLINGER IN MIDLAND, TX. MET W/ CLIENT 1 Gottesfeld 9/22/2016 Deposition HOUR PRIOR TO DEPOSITION. FOLLOW-UP MEETING W/ CLT AFTER DEPOSITION. 8.2 (8.2) Gottesfeld 9/22/2016 Phone Call PC W/ RAS RE: SOLINGER'S DEPOSITION TODAY. (.2) 0.2 RETURN TRAVEL FROM MIDLAND, TX TO PHILADELPHIA AFTER DEFENDING Gottesfeld 9/23/2016 Travel 8.8 GARY SOLINGER DEPOSITION. LAYOVER IN DALLAS. (8.8) EMAIL EXCHANGE W/ PROCESS SERVER RE: SERVICE OF SUBPOENA ON TIM Gottesfeld 9/26/2016 Incoming Correspondence 0.1 CLARK. (.1) Gottesfeld 9/26/2016 Legal Papers/Research FILED AFFIDAVIT OF SERVICE OF SUBPOENA ON TIM CLARK. (.1) 0.1 Gottesfeld 9/26/2016 Legal Papers/Research REV'D AFFIDAVIT OF SERVICE RE: TIM CLARK AS DOCKETED. (.1) 0.1 DRAFTED MOTION FOR EXTENSION OF CONDITIONAL CERT AND CLASS CERT Gottesfeld 9/26/2016 Legal Papers/Research 0.9 DEADLINES AND PROPOSED ORDER. (.9) Gottesfeld 9/26/2016 Phone Call PC W/ PDW RE: SOLINGER'S DEPOSITION. (.1) 0.1 DRAFTED MOTION TO EXTEND DEADLIENS RE: CLASS AND CONDITIONAL CERT. Gottesfeld 9/28/2016 Legal Papers/Research DRATED PROPOSED ORDER AND CONNCURRENCE FORM. MEETING W/ PDW RE: 1.1 SAME. (1.1) Gottesfeld 9/28/2016 Legal Papers/Research FILED MOTION TO EXTEND DEADLINES W/ COURT. (.1) 0.1 Gottesfeld 9/28/2016 Legal Papers/Research REV'D MOTION TO EXTEND DEADLINES AS DOCKETED. (.1) 0.1 EMAIL TO SEAN FALLON TO ARRANGE FOR COURT REPORTER FOR DEPOSITION Gottesfeld 10/10/2016 Outgoing Correspondence 0.1 FOR WEDNESDAY. (.1) Gottesfeld 10/11/2016 Phone Call PC W/ SEAN FALLON TO SET UP DEPOSITION ON WEDNESAY. (.1) 0.1 SAT IN ON DEPOSITION OF TIM CLARK. MEETINGS W/ PDW AND RAS AFTER RE: Gottesfeld 10/12/2016 Deposition 3.7 STRATEGY GOING FORWARD. (3.7) PC FROM BOB SHEEDER Gottesfeld 10/18/2016 Phone Call 0.1 (.1)

RETURNED PC FROM DEBBIE AT BOB SHEEDER'S OFFICE AND Gottesfeld 10/21/2016 Phone Call 0.1

Gottesfeld 10/24/2016 Administrative OBTAINED GARY SOLINGER DEPOSITION FROM COURT REPORTER. (.1) 0.1 STARTED PULLING CITATIONS FROM WALTZ AND SOLINGER'S DEPOSITION Gottesfeld 10/24/2016 Legal Papers/Research 4.0 TRANSCRIPTS FOR USE IN CONDITIONAL CERT. BRIEF. (4.0) Gottesfeld 10/26/2016 Legal Papers/Research READ DEF'S MOTION TO AMEND ANSWER AS DOCKETED. (.2) 0.2 FOUND CASELAW RE: MOTOR CARRIER ACT AND FAILURE TO RAISE AS Gottesfeld 10/26/2016 Legal Papers/Research 1.0 AFFIRMATIVE DEFENSE. (1.0) FINISHED PULLING DEPOSITION CITATIONS AND STARTED DRAFTING Gottesfeld 10/27/2016 Legal Papers/Research 11.5 CONDITIONAL CERT. BRIEF. (11.5) CONTINUED WORKING ON CONDITIONAL CERT. BRIEF. MEETING W/ PDW RE: Gottesfeld 10/28/2016 Legal Papers/Research 9.8 SAME. (9.8) Gottesfeld 10/30/2016 Legal Papers/Research ADD'L WORK ON CONDITIONAL CERT. BRIEF. (4.5) 4.5 FINISHED DRAFTING AND FINALIZED MOTION FOR CONDITIONAL CERTIFICATION AND BRIEF IN SUPPORT AND ALL ACCOMPANYING DOCS, INCLUDING PROPOSED Gottesfeld 10/31/2016 Legal Papers/Research 12.2 ORDER, TOC AND TOA, PREPERATION OF EXHIBITS. MEETINGS W/ PDW AND MADE HIS EDITS. (12.2) Gottesfeld 10/31/2016 Legal Papers/Research REV'D MOTION PACKAGE FOR CONDITIONAL CERT. BRIEF AS DOCKETED. (.2) 0.2 Gottesfeld 1/3/2017 Legal Papers/Research REV'D JUDGE'S ORDER AND OPINION GRANTING CONDITIONAL CERT. (.3) 0.3 MEETING W/ PDW RE: DEF'S DRAFT OF SECOND PROTECTIVE ORDER AND PDW Gottesfeld 1/3/2017 Meeting 0.1 SAID TO TAKE OUT PARAGRAPH RE: FIRST PROTECTIVE ORDER. (.1) PC FROM CLAY DAVIS

Gottesfeld 1/3/2017 Phone Call 0.2

Gottesfeld 1/4/2017 Incoming Correspondence REV'D DEF'S COUNSEL'S PROPOSED EDITS TO NOTICE AND CONSENT FORM. (.2) 0.2 MADE EDITS TO PROTECTIVE ORDER CIRCULATED BY CLAY DAVIS AND EMAIL Gottesfeld 1/4/2017 Legal Papers/Research 0.3 TO DEF. CSL. RE: SAME. (.3) Gottesfeld 1/4/2017 Legal Papers/Research REV'D COURT'S SCHEDULING ORDER AND ENTERED DATES INTO CALENDAR. (.2) 0.2 Gottesfeld 1/4/2017 Legal Papers/Research REV'D STIPULATION RE: PROTECTIVE ORDER AS DOCKETED. (.1) 0.1 Gottesfeld 1/19/2017 Meeting MEETING W/ PDW RE: PC FROM BOB SHEEDER. (.1) 0.1 Gottesfeld 1/19/2017 Phone Call PC W/ RANDY WALTZ AND UPDATED HIM RE: CASE. (.1) 0.1 PC FROM BOB SHEEDER Gottesfeld 1/19/2017 Phone Call 0.1 (.1) Gottesfeld 1/19/2017 Phone Call LEFT VM FOR GARY SOLINGER ASKING HIM TO CALL ME BACK. (.0) 0.0 Gottesfeld 1/23/2017 Legal Papers/Research REDACTED AND FILED CONSENT FORM FOR MARK ORTIZ. (.1) 0.1 REV'D CONSENT FORM FOR MARK ORTIZ AS DOCKETED. INPUT HIS ADDRESS Gottesfeld 1/23/2017 Legal Papers/Research 0.1 INFO. INTO NEEDLES. (.1)

Page 8 of 10 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 26 of 27

Attorney/Staff Date Task Detail Time

PCS W/ SEVERAL POTENTIAL CLASS MEMBERS RE: WHETHER Gottesfeld 1/24/2017 Phone Call 0.1 ESENT OPT-IN FORMS TO THEM AT CORRECT ADDRESS. SPOKE W/ MR. SMITH, ST Gottesfeld 2/1/2017 Administrative ADDED CONTACT INFO. FOR MICHAEL TINKLE INTO CMS. (.1) 0.1 Gottesfeld 2/1/2017 Legal Papers/Research REDACTED AND FILED CONSENT FORM FOR MICHAEL TINKLE. (.1) 0.1 Gottesfeld 2/1/2017 Legal Papers/Research REV'D CONSENT FORM FOR MICHAEL TINKLE AS DOCKETED. (.1) 0.1 Gottesfeld 2/6/2017 Legal Papers/Research DRAFTED AND SENT WELCOME MEMO TO TWO OPT-INS. (.3) 0.3 EMAIL EXCHANGES W/ MEG RE: SENDING EMAILS TO 2 OPT-INS AND EDITED Gottesfeld 2/6/2017 Outgoing Correspondence 0.2 LANGUAGE IN EMAIL. (.2) Gottesfeld 2/6/2017 Phone Call PC W/ GARY SOLINGER. (.2) 0.2 PC FROM DANIEL BRADLEY Gottesfeld 2/6/2017 Phone Call 0.1 (.1) COURT CONFERENCE VIA PHONE W/ PDW AND DEF. CSL. INCLUDING MEETING Gottesfeld 2/7/2017 Court Appearance 0.5 BEFOREHAND. (.5) Gottesfeld 2/8/2017 Outgoing Correspondence RESENT NOTICE AND CONSENT FORM TO JOHN TINKLE. (.1) 0.1 Gottesfeld 2/8/2017 Phone Call PC W/ OPT-IN MARK ORTIZ AND DISCUSSED CASE. (.2) 0.2 Gottesfeld 2/8/2017 Phone Call PC W/ OPT-IN MICHAEL TINKLE AND DISCUSSED CASE. (.1) 0.1 PC W/ PUTATIVE OPT-IN JOHN TINKLE AND CONFIRMED MAILING ADDRESS. HE Gottesfeld 2/8/2017 Phone Call 0.1 ASKED ME (.1) Gottesfeld 2/13/2017 Administrative ADDED TOBY HAYNES' CONTACT INFO INTO NEEDLES. (.1) 0.1 Gottesfeld 2/13/2017 Legal Papers/Research FILED CONSENT FORM FOR TOBY HAYNES. (.1) 0.1 Gottesfeld 2/13/2017 Legal Papers/Research REV'D CONSENT FORM FOR TOBY HAYNES AS DOCKETED. (.1) 0.1 DRAFTED AND SERVED DISCOVERY REQUESTS ON BEHALF OF 5 NEW OPT-INS. Gottesfeld 3/8/2017 Discovery 1.0 DISCOVERY SERVED VIA REG. MAIL. (1.0) SAVED DEF'S DISCOVERY REQUESTS TO OPT-IN PLAINTIFFS TO SYSTEM AND Gottesfeld 3/22/2017 Discovery 0.1 CALENDARED SAME. (.1) Gottesfeld 3/23/2017 Legal Papers/Research REV'D THE EARNINGS STATEMENTS FOR OPT-INS. (.5) 0.5 Gottesfeld 3/23/2017 Meeting MET W/ RAS TO DISCUSS DAMAGES ANALSYIS. (.1) 0.1 Gottesfeld 3/23/2017 Meeting DISCUSSED DAMAGES ANALYSIS W/ RAS AND PDW. (.1) 0.1 EMAIL TO DEF. CSL. Gottesfeld 3/23/2017 Outgoing Correspondence 0.2 (.2) REV'D PAYROLL DOCS FROM DEF. Gottesfeld 3/24/2017 Legal Papers/Research 0.3

Gottesfeld 3/29/2017 Legal Papers/Research STARTED DAMAGES ANALYSIS FOR OPT-INS AND DISCUSSED W/ RAS. (4.9) 4.9 Gottesfeld 3/29/2017 Phone Call PC W/ PDW AND RAS RE: DAMAGES ANALYSIS. (.1) 0.1 PC W/ OPT-IN JOHN TINKLE. HE SAID HE Gottesfeld 3/29/2017 Phone Call 0.2

Gottesfeld 3/29/2017 Phone Call PC W/ OPT-IN DAVID CANADA TO OBTAIN HIS HOURS WORKED. (.1) 0.1 Gottesfeld 3/29/2017 Phone Call LEFT VM FOR OPT-IN MICHAEL TINKLE ASKING HIM TO CALL ME BACK. (.0) 0.0 Gottesfeld 3/30/2017 Legal Papers/Research CONTINUED INPUTTING DAMAGES INTO DAMAGES SPREADSHEET. (7.0) 7.0 Gottesfeld 4/3/2017 Legal Papers/Research FINISHED DAMAGES ANALYSIS. MEETING W/ RAS AND PDW RE: SAME. (4.8) 4.8 ADD'L DAMAGES ANALYSIS FOR THREE OPT-INS-HAYNES, ORTIZ, AND CANADA Gottesfeld 4/14/2017 Discovery BASED ON ADD'L TIME SHEETS PROVIDED BY DEF. CSL. SENT UPDATED 2.6 DAMAGES ANALYSIS TO DEF. CSL. (2.6) EMAI TO DEF. CSL. ASKING FOR 2-WEEK EXTENSION TO RESPOND TO Gottesfeld 4/20/2017 Outgoing Correspondence 0.1 DISCOVERY FOR OPT-INS, WHICH THEY AGREED TO. UDPATED CALNEDAR. (.1)

Gottesfeld 4/20/2017 Settlement REV'D DEF'S EMAIL COUNTERING W/ AND ATTACHED SPREADSHEET. (.1) 0.1

PC W/ PDW AND RANDY WALTZ. TOLD HIM Gottesfeld 5/11/2017 Phone Call 0.3

PCS W/ OPT-INS TOBY HAYNES, GARY SOLINGER, JOHN TINKLE, AND MICHAEL TINKLE AND TOLD THEM Gottesfeld 5/11/2017 Phone Call 0.8

TOOK ANOTHER LOOK AT DAMAGES ANALYSIS FOR PURPOSE OF DISTRIBUTION Gottesfeld 5/11/2017 Settlement 1.0 TO CLTS. (1.0)

Page 9 of 10 Case 4:16-cv-00469-MWB Document 51-2 Filed 06/22/17 Page 27 of 27

Attorney/Staff Date Task Detail Time

PC W/ MARK ORTIZ AND TOLD HIM Gottesfeld 5/12/2017 Phone Call 0.2 (.2) PC W/ DAVID CANADA AND TOLD HIM Gottesfeld 5/12/2017 Phone Call 0.2 (.2) FINALIZED SETTLEMENT AGREEMENTS FOR 7 PLAINTIFFS AND CREATED COVER LETTERS AND HIGHLIGHTED W-4 FORMS FOR THEM. REVIEWED FOR Gottesfeld 5/12/2017 Settlement 2.0 ACCURACY. SENT VIA REG. MAIL ALONG W/ ENCLOSED RETURN STAMPED ENVELOPES. (2.0) EMAIL TO DEF. CSL. ATTACHING FINAL VERSIONS OF SETTLEMENT Gottesfeld 5/12/2017 Outgoing Correspondence 0.1 AGREMEENTS FOR EACH OF THE PLAINTIFFS. (.1) PC W/ OPT-IN TOBY HAYNES TO Gottesfeld 5/23/2017 Phone Call 0.1 (.1) LEFT VM FOR FOR OPT-INS DAVID CANADA AND MICHAEL TINKLE ASKING THEM Gottesfeld 5/24/2017 Phone Call TO 0.0 (.0) SENT EMAILS TO OPT-INS JOHN TINKLE, MICHAEL TINKLE, AND MARK ORTIZ Gottesfeld 5/24/2017 Outgoing Correspondence ASKING THEM TO 0.1 (.1) PC FROM OPT-IN MICHAEL TINKLE STATING THAT Gottesfeld 5/24/2017 Phone Call 0.1 (.1) LEFT RETURN VM FOR MICHAEL TINKLE ASKING HIM TO Gottesfeld 5/30/2017 Phone Call 0.1 (.1) PC W/ MICHAEL TINKLE. EXPLAINED THAT Gottesfeld 5/30/2017 Phone Call 0.1 (.1) Gottesfeld 6/1/2017 Phone Call PC FOR MICHAEL TINKLE ASKING HIM TO (.0) 0.0 PC W/ MARK ORTIZ AND HE CONFIRMED Gottesfeld 6/2/2017 Phone Call 0.1 (.1) Gottesfeld 6/2/2017 Phone Call PC FOR MICHAEL TINKLE ASKING HIM TO (.0) 0.0 SCANNED MARK ORTIZ AND MICHAEL TINKLE'S EXECUTED SETTLEMENT Gottesfeld 6/5/2017 Settlement 0.1 AGREEMENTS AND W-9 FORMS INTO SYSTEM. (.1) PC W/ BOB SHEEDER AND TOLD HIM Gottesfeld 6/6/2017 Phone Call 0.1 (.1) EMAIL TO BOB SHEEDER ATTACHING SETTLEMENT AGREEMENT AND W-9 Gottesfeld 6/6/2017 Outgoing Correspondence 0.1 FORMS SIGNED BY CLTS. (.1) SENT ORIGINAL SETTLEMENT AGREEMENTS AND W-9 FORMS TO BOB SHEEDER Gottesfeld 6/6/2017 Outgoing Correspondence 0.1 VIA REG. MAIL. (.1) CLERICAL 1/9/2017 Legal Papers/Research ORGANIZE MATERIALS FOR MAILING AND DO MAILING (2.3) 2.3 LOCATED NEW ADDRESSES VIA ACCURINT FOR RETRN TO SENDER CLAIM FORM LETTRS, REMAILED LETTERS TO NEW ADDRESSES.

CLERICAL 1/17/2017 Administrative 0.1

REMAILED RETURNED ENVLP TO WILLIAM DICKENS, LOCATED NEW ADDRESS CLERICAL 1/19/2017 Administrative 0.1 ON ACCURINT CALLED EMPLOYEES TO ENSURE ADDRESS' ARE CORRECT AND THAT THEY CLERICAL 1/24/2017 Administrative 1.5 RECEIVED OPT-IN FORM IN MAIL (1.5) CLERICAL 2/24/2017 Administrative ENETERED OPT-IN INFO INTO NEEDLES (.1) 0.1

Attorney/Staff Hours Hourly Rate Lodestar Winebrake 47.3 $620.00 $29,326.00 Santillo 14.0 $400.00 $5,600.00 Gottesfeld 160.5 $305.00 $48,952.50 CLERICAL 4.1 $100.00 $410.00 TOTAL 225.9 $84,288.50

Page 10 of 10 Case 4:16-cv-00469-MWB Document 51-3 Filed 06/22/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

: RANDY WALTZ, et al. : : 4:16-cv-00469-MWB v. : : AVEDA TRANSPORTATION AND : ENERGY SERVICES INC. and : RODAN TRANSPORT USA LTD : :

ORDER

AND NOW, this ____ day of ______, 2017, upon consideration of Plaintiffs’ “Unopposed Motion for Approval of the

FLSA Settlement” (“Motion”), the accompanying settlement agreements, declaration, and brief, and all other papers and proceedings herein, it is hereby ORDERED that the settlement of this collective action is

APPROVED because it represents a fair and reasonable settlement of a bona fide dispute under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. This action is DISMISSED WITH PREJUDICE, although the Court will retain jurisdiction over any disputes pertaining to the enforcement of the settlement.

BY THE COURT:

______Matthew W. Brann United States District Judge Case 4:16-cv-00469-MWB Document 52 Filed 07/05/17 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

: RANDY WALTZ, et al. : : 4:16-cv-00469-MWB v. : : AVEDA TRANSPORTATION AND : ENERGY SERVICES INC., et al. : :

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR APPROVAL OF THE FLSA SETTLEMENT

This FLSA lawsuit has been settled, and the seven settling Plaintiffs now submit this brief in the hope of obtaining judicial approval of the settlement. As discussed herein, judicial approval is warranted because the settlement represents a

“„a fair and reasonable resolution of a bona fide dispute over FLSA provisions.‟”

Schwartz v. The Pennsylvania State University, 2017 U.S. Dist. LEXIS 58874, *5

(M.D. Pa. Apr. 18, 2017) (Brann, J.) (quoting Lynn‟s Food Stores, Inc v. U.S.

Dept. of Labor, 679 F.2d 1350, 1354 (11th Cir. 1982)).

I. BACKGROUND

Defendants Aveda Transportation and Energy Services Inc. and Rodan

Transport USA Ltd (“Defendants”) are in the business of, among other things, setting up, maintaining, dismantling, and transporting gas and oil rigs in

Pennsylvania and beyond. During the relevant time period, Defendants paid some of the rig employees on a “day-rate” basis and classified them as exempt from the

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overtime pay mandates of the Fair Labor Standards Act (“FLSA”) and the

Pennsylvania Minimum Wage Act (“PMWA”).

One such employee, Randy Waltz, believed he should receive overtime premium pay. So, in March 2016, he filed this lawsuit on behalf of himself and similar employees. See Doc. 1. Waltz‟s FLSA claim was filed as a nationwide collective action, while his PMWA claim was filed as a Rule 23 class action covering Pennsylvania employees. When discovery revealed that the putative

Pennsylvania class was too small to satisfy Civil Rule 23(a)(1), Waltz withdrew his class action claim, and the lawsuit proceeded as an FLSA collective action. See

Doc. 28.

In April 2016, Gary Solinger, one of Waltz‟s co-workers, joined the FLSA collective. See Doc. 5. Next, the parties turned to discovery, which included, inter alia: (i) the depositions of Waltz, Solinger, and one of Defendants‟ executives; (ii) the exchange of detailed interrogatories; and (iii) the production of Defendants‟ relevant written policies and documents/data addressing the compensation and work activities of Waltz and Solinger.

Armed with discovery, Waltz and Solinger filed a “conditional certification” motion requesting that the Court notify similarly situated employees of the lawsuit.

See Docs 30-31. This motion was granted, see Waltz v. Aveda Transportation and

Energy Services, Inc., 2016 U.S. Dist. LEXIS 178474 (M.D. Pa. Dec. 27, 2016

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Doc. 37, and, in January 2017, the Court approved notice and consent forms that were sent to over 30 individuals, see Doc. 42. This resulted in five additional plaintiffs – David Canada, Toby Hayes, Mark Ortiz, John Tinkle, and Michael

Tinkle – joining the lawsuit. See Docs. 43, 45, 48-50.

In February 2017, the Court presided over a second case management conference and fixed the remaining litigation deadlines. See Doc. 47. A few months later, after Defendants provided discovery concerning the five new opt-in

Plaintiffs, the parties started settlement negotiations. These negotiations culminated in a settlement whereby Defendants must pay a total of $145,000.00 broken down as follows:

Plaintiff Payment to Plaintiff Payment to Plaintiff’s Counsel David Canada $23,937.27 $13,653.14 Toby Haynes $2,239.85 $738.01 Mark Ortiz $1,619.93 $396.00 Gary Solinger $39,745.39 $23,062.73 John Tinkle $7,819.19 $4,059.04 Michael Tinkle $8,439.11 $4,428.04 Randy Waltz $11,199.26 $3,690.04 Total $95,000.00 $50,000.00

See Doc. 51-1 (executed settlement agreements). In exchange for these payments,

Plaintiffs release Defendants from any wage and hour claims “reasonably related” to this lawsuit. See Agreements at ¶ 4. Plaintiffs also agree to abide by a confidentiality provision that mirrors the one approved in Your Honor‟s April 18

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Schwartz opinion. See id. at ¶ 8. Finally, all parties agree to a mutual non- disparagement provision. See id. at ¶ 5.

II. THE $90,000 PAYMENT TO PLAINTIFFS WARRANTS APPROVAL.

Although the Third Circuit Court of Appeals has never specifically addressed the standards to be applied in reviewing FLSA settlements, it is widely accepted that such settlements must represent “„a fair and reasonable resolution of a bona fide dispute over FLSA provisions.‟” Schwartz, 2017 U.S. Dist. LEXIS

58874, at *5 (quoting Lynn‟s Food, 679 F.2d at 1350). Thus, as a “threshold matter,” the Court must determine that the settlement resolves a bona fide dispute, which is defined as a dispute “in which „there is some doubt as to whether the plaintiff would succeed on the merits at trial.‟” Id. at *6 (quoting Bettger v.

Crossmark, Inc., 2015 U.S. Dist. Lexis 7213, *9 (M.D. Pa. Jan. 22, 2015)). If a bona fide dispute exists, the Court‟s analysis “proceeds in two stages: first, the court assesses whether the parties‟ agreement is fair and reasonable to the plaintiff employee; second, it determines whether the settlement furthers or „impermissibly frustrates‟ implementation of the FLSA in the workplace.” Id.

As discussed below, application of the above methodology to this settlement favors approval of the $90,000 to be paid to plaintiffs:

A. The settlement resolves a bona fide dispute.

Here, the settlement resolves a bona fide dispute because, in the absence of

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settlement, the parties would hotly contest several unresolved factual and legal issues. Three of these issues are summarized below:

First, Defendants maintain that Plaintiffs are overtime-exempt under the

FLSA‟s “motor carrier” exemption. See 29 U.S.C. § 213(b)(1). In this regard,

Defendants emphasize that Plaintiffs‟ most important duties involved driving commercial motor vehicles and overseeing the loading of such vehicles with rig equipment. Such activities would ordinarily render Plaintiffs overtime-exempt.

See generally 29 C.F.R. §§ 782.3, 782.5. However, Plaintiffs counter that, in addition to these driving and loading activities, they also drive pick-up trucks weighing under 10,000 pounds. These “small vehicle” driving activities, according to Plaintiffs, foil Defendants‟ reliance on the motor carrier exemption. See generally McMaster v. Eastern Armored Services, Inc., 780 F.3d 167 (3d Cir.

2015) (explaining that motor carrier exemption does not apply when employee‟s duties include driving sub-10,000-pound vehicles). But Defendants have a counter-argument: Even if Plaintiffs drove pick-up trucks, such activities were de minimis and do not enable Plaintiffs to escape the motor carrier exemption‟s reach.

The above arguments take us into unchartered territory because the Third Circuit‟s

McMaster decision does not resolve how much driving of a small vehicle is necessary for the motor carrier exemption to become inapplicable. See id. at 170 n. 4.

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Second, even if Plaintiffs were eligible for overtime pay, the parties would dispute whether Defendants‟ misclassification of them as overtime-exempt constitutes the type of “willful” violation that triggers a three-year – rather than a two-year – limitations period under the FLSA. see 29 U.S.C. § 255(a). To establish willfulness, Plaintiffs must prove that Defendants‟ “either knew or showed reckless disregard for the matter of whether [their] conduct was prohibited by the [FLSA].” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct.

1677, 1681 (1988). This could be difficult because, when Defendants classified

Plaintiffs as overtime-exempt, several district court decisions supported the notion that companies maintaining a “mixed-fleet” of heavy and light vehicles could utilize the motor carrier exemption. See McMaster, 780 F.3d at 171-72 (citing cases).

Third, even if Plaintiffs were eligible for overtime pay, the parties would dispute the extent to which Plaintiffs worked over 40 hours per week. Plaintiffs estimate that they worked 13-16 hours during a typical day. Defendants respond that these estimates are greatly exaggerated and that Plaintiffs often worked under

10 hours per day.

In sum, the disputed issues summarized above demonstrate that this settlement resolves a bona fide dispute under the FLSA.

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B. The agreement is “fair and reasonable.”

Having established a bona fide dispute, we turn to whether the settlement is

“fair and reasonable.” As this Court observed in Schwartz, this requires consideration of the factors described in Girsh v. New America Fund, Inc., 521

F.2d 153, 157 (3d Cir. 1975).

Here, the Girsh factors favor approval:

Factor 1- Complexity, Expense and Likely Duration of the Litigation:

This factor favors approval because, absent settlement, this litigation would require significant additional discovery, including (i) depositions of five more Plaintiffs and their supervisors and (ii) the location, review, and analysis of thousands of pages of fleet assignments documents relevant to the determining the particular vehicles driven by particular Plaintiffs on particular days. Moreover, most of the

Plaintiffs and defense witnesses live in Texas, making a Pennsylvania trial especially burdensome and expensive.

Factor 2 – Reaction of the Collective to the Settlement: This factor favors approval because each Plaintiff has personally executed a settlement agreement.

See Doc. 51-1.

Factor 3 – The Stage of the Proceeding and the Amount of Discovery

Completed: This factor – which addresses “whether counsel had an adequate appreciation of the merits of the case before negotiating,” In re: Cendant Corp.

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Litig., 264 F.3d 201, 235 (3d Cir. 2001) – favors approval. As discussed above, the settlement discussions occurred after the completion of substantial discovery and after the Court‟s resolution of a contested conditional certification motion.

Factors 4-5 – Risk of Establishing Liability and Proving Damages: These factors favor approval because, as previously discussed, the outcome of this lawsuit turns on hotly contested issues such as: (i) whether Plaintiffs are covered by the motor carrier exemption; (ii) whether a two-year or three-year limitations period applies; and (iii) whether Plaintiffs really worked as much overtime as they claim.

These unresolved issues carry significant risk for Plaintiffs. If Plaintiffs are covered by the motor carrier exemption, they will recover nothing. Moreover, if

Plaintiffs escape the motor carrier exemption but fail to prove “willfulness,” their alleged unpaid overtime wages would only total around $57,000 under the two- year limitations period.1 This is because Plaintiffs‟ relevant workweeks disproportionately fall within the third year of the limitations period.

Finally, even if Plaintiffs won the third year by establishing “willfulness,” their unpaid wages might still fall below the $90,000 settlement recovery. Indeed, the $90,000 recovery coincides with Plaintiffs‟ aggregate unpaid wages if they were able to prove that they worked 10 hours on every single shift. At trial,

1 Day-rate employees such as Plaintiffs recover overtime wages pursuant to the half-time methodology described in 29 C.F.R. § 778.112. 8

Case 4:16-cv-00469-MWB Document 52 Filed 07/05/17 Page 9 of 15

Defendants would allege that such a 10-hour-per-shift assertion is overstated.

Factor 6 – Risks of Maintaining the Collective Through Trial: This factor favors approval because, absent settlement, Defendants might be able to convince the Court to “decertify” the collective and require most of the Plaintiffs to pursue their claims individually in Texas.

Factor 7 – Ability of Defendant to Withstand a Greater Judgment: As

Judge Jones recently explained, this factor is “neutral” where, as here, the

Defendants‟ ability to pay did not significantly factor into the settlement deliberations. See Tavares v. S-L Distribution Co., Inc., 2016 U.S. Dist. LEXIS

57689, *33-34 (M.D. Pa. May 2, 2016).

Factors 8-9 – The Range of Reasonableness of the Settlement Fund in

Light of the Best Possible Recovery and the Attendant Risks of Litigation: The eighth and ninth Girsh factors “test two sides of the same coin: reasonableness in light of the best possible recovery and reasonableness in light of the risks the parties would face if the case went to trial.” In re Warfarin Sodium Antitrust

Litig., 391 F.3d 516, 538 (3d Cir. 2004). The question is whether, in light of these risks, Plaintiffs are getting “good value.” Id. Here, these factors favor approval because, even after deductions for the proposed attorney‟s fees/expenses, each

Plaintiff recovers the amount of overtime wages he would have won at trial if he:

(i) defeated Defendant‟s motor carrier exemption defense; (ii) obtained a three-year

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limitations period; and (iii) proved that he worked 10 hours on every shift.

Moreover, Plaintiffs‟ counsel estimate that, under a three-year limitations period,

Plaintiffs‟ unpaid overtime wages would total approximately $156,000 if the factfinder accepted their various estimates that they worked 13-16 hours per shift.

Thus, even using Plaintiffs‟ own estimates of work hours, the settlement enables them to recover 57.7% of their alleged unpaid wages. This is an excellent result.

Summary of the Girsh Factors: To sum up, the Girsh factors favor approval of the settlement payments to Plaintiffs.

C. The Settlement Does Not Frustrate the Implementation of the FLSA.

In addition to being “fair and reasonable,” the settlement is free of any terms that would frustrate the implementation of the FLSA. The Agreement does contain a confidentiality provision, see Doc. 51-1 at ¶ 8, and such provisions can be problematic under the FLSA, see Schwartz, 2017 U.S. Dist. LEXIS 58874, at *10 n. 30. Here, however, Plaintiffs cannot be sanctioned for violating the confidentiality provision. See Doc. 51-1 at ¶ 8. As such, the provision does not frustrate the FLSA. See Schwartz, 2017 U.S. Dist. LEXIS 58874, at *9-11.

In addition, while courts have recently rejected FLSA settlements containing general release language, see, e.g., Bettger, 2015 U.S. Dist. LEXIS 7213, at *22-

28, this settlement poses no such problem. Here, the release is narrow, covering only wage and hour claims “reasonably related” to the claims asserted in the

10

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underlying complaint. See Doc. 51-1 at ¶ 4.

D. Summary.

In sum. Plaintiffs have demonstrated that their $90,000 settlement recovery warrant‟s judicial approval under the standards described by this Court in

Schwartz.

III. THE $50,000 PAYMENT TO WINEBRAKE & SANTILLO, LLC WARRANTS APPROVAL.

Under the settlement agreements, Winebrake & Santillo, LLC (“W&S”) stands to recover a total of $50,000 in fees and expenses. Since W&S has incurred $4,643.46 in expenses, see Declaration of Peter Winebrake (“Winebrake

Dcl.”) (Doc. 51-2) at ¶ 23, the settlement results in an attorney‟s fee payment of

$45,356.54.

“Courts within the Third Circuit have predominantly used the percentage-of- recovery method, in which a fixed portion of the settlement fund is awarded to counsel, to determine a reasonable attorney‟s fee in wage and hour cases.”

Schwartz, 2017 U.S. Dist. LEXIS 58874, at *11. Here, a “percentage of the fund” analysis favors approval because the $45,356.54 fee equals 31.28% of the

$145,000.00 common settlement fund. This is less than the fee awards commonly approved in other class/collective actions. See Creed v. Benco Dental Supply Co.,

2013 U.S. Dist. LEXIS 132911, *17 (M.D. Pa. Sept. 17, 2013) (“an award of one- third of the settlement is consistent with similar settlements throughout the Third

11

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Circuit”).

As this Court observed in Schwartz, the reasonableness of W&S‟s 31.28% recovery must be viewed against the seven factors described in Gunter v.

Ridgewood Energy Corp., 223 F.3d 190, 193 n. 1 (3d Cir. 2000), although such factors “need not be applied in a formulaic way,” Schwartz, 2017 U.S. Dist.

LEXIS 58874, at *12.

As discussed below, each Gunter factors supports approval of the requested fee:

Factor 1 – The Size of the Fund Created and the Number of Persons

Benefited: This factor favors approval because, as already discussed, Plaintiffs will receive settlement payments equaling approximately 57.7% of their potential unpaid wage recovery assuming they overcame all the previously described litigation risks. Moreover, it is quite possible that Plaintiffs could win and still recover less than the $90,000 delivered under the settlement. As discussed in addressing the Girsh factors, the settlement represents an excellent result for

Plaintiffs.

Factor 2 – The Presence or Absence of Substantial Objections by

Members of the Class: This factor favors approval because each Plaintiff has personally signed a settlement agreement.

Factor 3 – The Skill and Efficiency of the Attorneys Involved: This factor

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favors approval because Plaintiffs‟ counsel has substantial experience litigating overtime rights cases, see Winebrake Dcl. (Doc. 51-2) at ¶¶ 3-17, and has efficiently brought this matter to a fair and favorable resolution.

Factor 4 – The Complexity and Duration of the Litigation: This factor, which is identical to the first Girsh factor, favors approval.

Factor 5 – The Risk of Nonpayment: This factor favors approval because

Plaintiffs‟ counsel exclusively represents workers on a pure contingency fee basis.

See Winebrake Dcl. (Doc. 51-2) at ¶ 3. This makes non-payment a risk in every case the firm handles. See In re Lucent Technologies, Inc., 327 F. Supp. 2d 426,

438 (D.N.J. 2004).

Factor 6 – The Amount of Time Devoted to the Case: Plaintiffs‟ counsel has invested over 221.8 attorney hours – not including the time spent on this approval motion – working on this litigation to date. See Winebrake Dcl. (Doc.

51-2) at ¶ 22. Such a substantial time investment favors approval. Moreover, the requested $45,356.54 fee yields a blended hourly attorney rate of only $204

($45,356.54 / 221.8). This represents an excellent value for Plaintiffs. See Sakalas v. Wilkes-Barre Hospital Co., 2014 U.S. Dist. LEXIS 63823, *19 (M.D. Pa. May

8, 2014) (utilizing an “aggregate lodestar hourly billing rate of $500.56” in subjecting W&S‟s attorney fees to a lodestar crosscheck).

Factor 7 – The Awards in Similar Cases: This factor favors approval

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because the requested fee equals 31.4% of the total settlement fund, which is consistent with fee awards in other class/collective actions within the Middle

District of Pennsylvania. See DiClemente v. Adams Outdoor Advertising, Inc.,

2016 U.S. Dist. LEXIS 88394, *11 (M.D. Pa. July 8, 2016) (courts have approved attorney‟s fees representing approximately “20-45%” of the FLSA settlement fund.); Creed, 2013 U.S. Dist. LEXIS 132911, at *17 (“an award of one-third of the settlement is consistent with similar settlements throughout the Third Circuit”).

Summary of the Gunter Factors: In sum, all of the Gunter factors favor approval of the requested attorney‟s fee.

The Lodestar Crosscheck: Courts sometimes perform a “lodestar crosscheck” of an attorney‟s fee justified under the percentage-of-recovery method. Schwartz, 2017 U.S. Dist. LEXIS 58874, at *13. Here, utilizing the hourly rates described in the fee scheduled developed by Philadelphia Community

Legal Services2 and similar to the rates used by other judges in performing lodestar crosschecks of W&S fee requests, W&S‟s fee lodestar stands at $84,288.50. See

2 This Court increasingly looks to the Community Legal Services fees schedule in evaluating attorney rates. See, e.g., DiClemente, 2016 U.S. Dist. LEXIS 88394, at *13 (Mannion, J.); Lightstyles, Ltd. v. Marvin Lumber & Cedar Co., 2015 U.S. Dist. LEXIS 87049, *9-10 (M.D. Pa. July 6, 2015) (Caldwell, J.); Benjamin v. Dept. of Public Welfare, 2014 U.S. Dist. LEXIS 135309, *22-23 (M.D. Pa. Sept. 25, 2014) (Jones, J.); Stockport Mountain Corp., LLC v. Norcross Wildlife Foundation, Inc., 2014 U.S. Dist. LEXIS 3694, *10-11 (M.D.. Pa. Jan. 13, 2014) (Munley, J.); Brown v. Trueblue, 2013 U.S. Dist. LEXIS 158476, *6-7 (M.D. Pa. Nov. 5, 2013) (Kane, J.); Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198, *21-22 (M.D. Pa. Feb. 1, 2013) (Caputo, J.). 14

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Winebrake Dcl. (51-2) at ¶¶ 18-22. This results in a “negative” lodestar multiplier and further justifies the requested fee.

IV. CONCLUSION

For all the above reasons, Plaintiffs respectfully request that the Court sign and enter the accompanying proposed order approving the settlement of this FLSA action.

Date: July 5, 2017 Respectfully,

/s/ Peter Winebrake Peter Winebrake R. Andrew Santillo Mark J. Gottesfeld Winebrake & Santillo, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 (215) 884-2491

Plaintiffs’ Counsel

15

Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 1 of 9

Neutral As of: July 5, 2017 1:42 PM Z

Benjamin v. Dep't of Pub. Welfare of Pa.

United States District Court for the Middle District of Pennsylvania September 25, 2014, Decided; September 25, 2014, Filed 1:09-cv-1182

Reporter 2014 U.S. Dist. LEXIS 135309 *; 2014 WL 4793736 DLA Piper US LLP, Philadelphia, PA. FRANKLIN BENJAMIN, et al., Plaintiffs and CRAIG SPRINGSTEAD, et al., Intervenors v. DEPARTMENT For UNITED STATES OF AMERICA, Amicus: Marina OF PUBLIC WELFARE OF THE COMMONWEALTH Mazor, Samantha K. Trepel, United States Department OF PENNSYLVANIA and BEVERLY MACKERETH, in of Justice, Washington, DC. her official capacity as Secretary of Public Welfare of For Harriet Dichter, Amicus: Doris M. Leisch, the Commonwealth of Pennsylvania, Defendants. Community Behavioral Health, Philadelphia, PA. Prior History: Benjamin v. Dep't of Pub. Welfare of Pa., For Maria Meo, Craig Springstead, Daniel Bastek, 701 F.3d 938, 2012 U.S. App. LEXIS 25357 (3d Cir. Michael Storm, Beth Ann Lambo, Richard Clarke, Pa., 2012) Richard Kohler, Wilson Sheppard, Maria Kashatus, Intervenors: John E. Riley, LEAD ATTORNEY, Conrad Counsel: [*1] For Franklin Benjamin, by and through O'Brien, P.C., West Chester, PA; William J. Murray, his next friend, Andree Yock, Richard Grogg, Frank LEAD ATTORNEY, Vaira & Riley, P.C., Philadelphia, Edgett, by and through their next friend, Joyce PA; Benjamin J. Hoffart, Sidley Austin LLP, New York, McCarthy, Anthony Beard, by and through his next NY. friend, Nicole Turman, on behalf of themselves and all others similarly situated, Plaintiffs: Mark J. Murphy, Judges: Hon. John E. Jones III, United States District Robert W. Meek, LEAD ATTORNEYS, Kelly L. Darr, Judge. Disability Rights Network of Pennsylvania, Philadelphia, PA; Stephen F. Gold, LEAD ATTORNEY, Stephen F. Opinion by: John E. Jones III Gold, Philadelphia, PA; Doris M. Leisch, Community Behavioral Health, Philadelphia, PA; Dynah E. Haubert, Opinion Disability Rights Network of PA, Harrisburg, PA. For Department of Public Welfare of the Commonwealth of Pennsylvania, Defendant: Daniel M. Fellin, MEMORANDUM Department of Public Welfare, Office of Legal Counsel, Harrisburg, PA; Doris M. Leisch, Community Behavioral This class action, filed under the Americans with Health, Philadelphia, PA; Rebecca M Taylor, Dept. of Disabilities Act and Rehabilitation Act, originated in this Public Welfare Office of General Counsel, Harrisburg, Court in 2009. Now, over five years since the initiation of PA. this litigation and after several procedural turns, we are For Estelle B. Richman, in her official capacity as again tasked to assess the fairness of the final Secretary of Public Welfare of the Commonwealth of settlement agreement amongst the parties and, also, Pennsylvania, Gary D Alexander, Defendants: Doris M. Plaintiffs' and Intervenors' bids for attorneys' fees and Leisch, Community Behavioral Health, Philadelphia, PA. costs.

For Mr. Carl A Solano, Objector: Carl A. Solano, I. BACKGROUND Schnader Harrison Segal [*2] & Lewis LLP, Philadelphia, PA. Plaintiffs are a class [*3] of individuals with intellectual disabilities who are institutionalized in state intermediate For VOR, Objector: Lesli C. Esposito, Nathan P. Heller, Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 2 of 9Page 2 of 9 2014 U.S. Dist. LEXIS 135309, *3 care facilities for persons with intellectual disabilities affirmed our denial in April 2011. See Benjamin v. ("ICFs/ID"). They filed a complaint alleging that they Dep't of Pub. Welfare, 432 Fed. Appx. 94, 2011 WL were appropriate for, and not opposed to, community- 1243683 (3d Cir. 2011) (unpublished opinion). based services and arguing that Defendants' failure to offer and provide community alternatives violated Title II The parties completed extensive discovery and filed of the Americans with Disabilities Act ("ADA"), 42 U.S.C. cross-Motions for Summary Judgment. (Docs. 48, § 12131-12134, and Section 504 of the Rehabilitation 51.) In January 2011 we issued a Memorandum Act ("RA"), 29 U.S.C. § 794. Plaintiffs sought both and Order [*5] that denied Defendants' Motion for declaratory and injunctive relief. Summary Judgment, granted Plaintiffs' Motion for Summary Judgment, and declared that Intervenors, who joined in this action at the remedy [Defendants] violated the integration mandates of stage of the proceeding, are a group of individuals who the ADA and RA. (Doc. 88.) . . . [B]ecause at that are also institutionalized but do not desire community juncture the Court was reluctant to draft such placement. extensive injunctive relief as would be required, and in effect construct a policy that was better left for A. Procedural History the parties to develop in the first instance, we encouraged the parties to attempt to resolve the As we outlined in our Memorandum of September 2, remedy amicably. 2011, . . . [W]e referred the parties to mediation with Magistrate Judge Martin Carlson in February 2011. Plaintiffs initiated the action on June 22, 2009. The parties met twice with Judge Carlson and Pursuant to an unopposed motion predicated upon continued arms-length negotiations on their own. Federal Rule of Civil Procedure 23(b)(2), we The parties eventually finalized the Proposed thereafter certified the following class: Settlement Agreement, and we granted preliminary approval of said Agreement on May 27, 2011. (Doc. All persons who: (1) currently or in the future 106.) Notice was either hand-delivered to nearly all will reside in one of Pennsylvania's state- ICF/[ID] residents or mailed to involved family and operated intermediate care facilities for guardians of residents by June 24, 2011, and persons with mental retardation; (2) could reside in the community with appropriate interested persons had the opportunity to object to services and supports; and (3) do not or would the Settlement by August 2, 2011. The Court received numerous objections . . .. not oppose community [*4] placement. (Doc. 17.) Defendants subsequently filed a Motion (Doc. 280, pp. 3-5). to Dismiss (Doc. 20) that the Court denied by our In addition to the objections, two motions to intervene Order of January 25, 2010. (Doc. 38.) were filed by Attorney Carl [*6] Solano, objecting on behalf of his sister, Diane Solano, and the previously While the Motion to Dismiss was pending, a group mentioned Springstead Intervenors. (Docs. 179, 253). of individuals filed a Motion to Intervene in the Both motions sought intervention for the limited purpose litigation. (Doc. 27.) These individuals, referred to of presenting and having the Court consider objections throughout this litigation as the "Springstead to the proposed class action settlement. (Doc. 179, p. 1; Intervenors", alleged that, although they were Doc. 253, p. 1). We issued an Order on August 16, 2011 opposed to community-based services and support, (Doc. 273), denying the motions to intervene but noting they were nonetheless de facto members of the that we would fully consider all objections lodged on the certified class. The Springstead Intervenors alleged record and permit counsel to participate in the fairness that the resolution of the class action in Plaintiffs' hearing and question the respective witnesses. favor would limit the Springstead Intervenors' rights to choose ICF/[ID] care. We denied the Motion to We conducted a fairness hearing and filed a Intervene on March 10, 2010, finding that the Memorandum and Order on September 2, 2011 (Docs. Springstead Intervenors were explicitly excluded 280, 281), approving the settlement agreement and from the class by virtue of their opposition to awarding attorneys' fees and costs to Plaintiffs' counsel. community-based care. (Doc. 41.) The Springstead Intervenors appealed that decision, and the United Ms. Solano and the Springstead Intervenors later filed States Court of Appeals for the Third Circuit an appeal in the Court of Appeals for the Third Circuit, Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 3 of 9Page 3 of 9 2014 U.S. Dist. LEXIS 135309, *6 challenging our denial of their motions to intervene at Thereafter, Plaintiffs submitted an Unopposed Motion the remedy stage and, also, our approval of the class for Final Approval of the Proposed Revised Class Action action settlement. Agreeing with the intervenors, the Settlement Agreement (Doc. 345), and Plaintiffs and Third Circuit issued a judgment on December 12, 2012 Intervenors submitted motions for attorneys' fees, (Doc. 299), vacating our Order of August 16, 2011, litigation expenses, and costs (Docs. [*9] 348, 350). insofar as it denied the motions to intervene as [*7] of Those three motions remain pending before this Court. right in the remedy stage of the litigation. The judgment also vacated our September 2, 2011 order, which had We held a fairness hearing on September 23, 2014, granted final approval of the parties' settlement participated in by counsel for Plaintiffs, Defendants, the agreement. The Third Circuit remanded the matter to Springstead Intervenors, and Ms. Solano. All counsel this Court, instructing that we grant the motions to made statements in support of the Settlement intervene in the remedy stage and permit the Agreement, urging the Court's blessing. In general, intervenors to challenge the settlement agreement and counsel commented that the present Agreement is the seek decertification of the class. fruit of much earnest, attentive, and inclusive negotiation, representing an exercise in establishing In accordance with the appellate court's order, we trust among the parties, and that, as a result, the granted the motions to intervene of Ms. Solano and the Agreement itself is far more robust and detailed than the Springstead Intervenors and convened a status one submitted in 2011. In addition and notably, counsel conference on January 31, 2013, at which the parties for Defendants clarified that DPW has no present plans advised that they were working towards settlement but to close any of the state ICFs/ID. Also at the hearing, required more time for discussion. (Doc. 301). Over the the Springstead Intervenors offered the testimony of Mr. course of more than a year, the parties continued in John Bastek, who eloquently described the level of care negotiations towards an amicable resolution of this his son has received as a resident of a public ICF/ID. matter, monitored by the Court through periodic status reports. B. The Proposed Settlement and Attorneys' Fees

Through commendable commitment and diligence, the The proposed Settlement Class encompasses "[a]ll parties reached agreement on all terms of a individuals who have resided or will reside in a state comprehensive settlement agreement. As to attorneys' ICF/ID at any time from the Effective Date of the fees and costs, Plaintiffs and Defendants were able to Settlement Agreement until the termination of the achieve consensus, and, with the able assistance of Settlement Agreement[.]" (Doc. 342, [*10] ¶ 4). The Magistrate Judge Schwab, Intervenors and Defendants Settlement Agreement provides, among other things, later came [*8] to agreement, as well.1 that no party will seek to remove any class member from a state ICF/ID and place him or her in a community All matters being resolved, pursuant to Plaintiffs' placement, and, also, that no party will seek to restrict unopposed motions, we granted preliminary approval of the ability of any class member to move to a community the proposed settlement agreement and approval of the placement other than in accordance with the class notice, and, also, granted certification of the Agreement. (Doc. 345-1, ¶ 2). The Agreement sets forth settlement class on June 12, 2014. (Docs. 341, 342). a process for choosing community placement, outlining Notice was hand-delivered to all ICF/ID residents and a procedure to make or change a choice of community sent by first-class mail to any guardians, involved family placement by the class member and/or guardian or members, and substitute decision-makers. Objections substitute decision-maker, and, also, a process by and requests to participate were due by September 9, which to voluntarily return to an ICF/ID. (Id. ¶¶ 3-9, 21). 2014. The Court received no objections and just one In answer to Intervenors' long-standing concerns, the request to participate by John Bastek, the father and Agreement additionally provides a detailed decision- guardian of Daniel Bastek, who is one of the making procedure where a class member does not have Springstead Intervenors. (Doc. 343). a guardian or substitute decision-maker. (Id. ¶ 10).

Those class members choosing community placement 1 We would be remiss if we did not highlight the invaluable will be placed on a Planning List for development of an services provided by this Court's United States Magistrate Individual Support Plan, which plan will include the Judges Schwab and Carlson. In typical fashion, both judges types of services required by the individual, any needs helped immeasurably in moving this protracted and complex for accommodation, and, if necessary, a transition plan case to its present posture. Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 4 of 9Page 4 of 9 2014 U.S. Dist. LEXIS 135309, *10 to address any challenges as the individual moves from A. The Proposed Settlement Agreement a state ICF/ID to the [*11] community. (Id. ¶¶ 20). DPW will be required to take various, concrete actions in A district court may approve a class action settlement support of integration, and must provide community upon a finding that it is "fair, reasonable, and adequate." placements to class members on the Planning List Fed. R. Civ. P. 23(e)(2). The court's role is as "a according to the following schedule: 80 class members fiduciary who must serve as a guardian of the rights of (or the number of class members on the Planning List if absent class members." In re Gen. Motors Corp. Pick- fewer than 80) by June 30, 2015; and 50 class members Up Truck Fuel Tank Prod. Liability Litig., 55 F.3d 768, on the Planning List (or the number of class members 785 (3d Cir. 1995) (citation and internal quotation marks on the Planning List if fewer than 50) in each of fiscal omitted). years 2015-16 through 2017-18. (Id. ¶¶ 14-19). An initial presumption of fairness attaches to an As to those class members wishing to remain in an agreement where the negotiations occurred at arm's ICF/ID, the Agreement provides that DPW will continue length, discovery was sufficient, the backers of the to maintain the level of care currently offered to class agreement have experience in similar litigation, and only members in those facilities, that class members may a small percentage of the class lodged objections. See seek to challenge the closure of an ICF/ID but that the In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 Agreement does not confer such a right, and that DPW (3d Cir. 2004) (citing In re Cendant Corp. Litig., 264 will not use monies appropriated to fund ICFs/ID to fund F.3d 201, 232 n. 18 (3d Cir. 2001)). community services and supports. (Id. ¶¶ 11-13). Here, it is undisputed — and we independently agree — In terms of oversight of the implementation of the that the instant litigation meets all of these criteria (see Agreement, the parties have agreed to monitoring by a Doc. 347, p. 20; Doc. 345-1, ¶¶ 2-3, 8-11), and, thus, neutral third party and that DPW will provide periodic that the Settlement Agreement is entitled to a status reports to counsel for Plaintiffs and Intervenors. presumption of fairness. (Id. ¶¶ 22-25). The parties have further agreed that [*12] this Court should retain jurisdiction over the case for In finally assessing an agreement, the Third Circuit has purposes of interpretation and enforcement of the adopted a nine-factor test to guide courts, referred to as Settlement Agreement. (Id. ¶ 32). In case of certain the Girsh test, which considers: instances of noncompliance, a party may seek specific performance after providing requisite notice to (1) the complexity and duration of the litigation; (2) Defendants. (Id. ¶¶ 33-37). Ultimately, the Agreement the reaction of the class to the settlement; (3) the will terminate on June 30, 2018, or 30 days after stage of the proceedings; (4) the risks of Defendants' counsel notifies counsel for Plaintiffs and establishing liability; (5) the risks [*14] of Intervenors, respectively, that the last class member on establishing damages; (6) the risks of maintaining a the Planning List as of June 30, 2018, has moved to the class action; (7) the ability of the defendants to community, whichever is later. (Id. ¶ 40). withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best Turning to attorneys' fees, the parties have agreed that recovery; and (9) the range of reasonableness of Defendants will pay Plaintiffs' counsel a total of the settlement in light of all the attendant risks of $532,500.00 for attorneys' fees, expenses, and costs litigation. incurred through the final approval of the Agreement. (Id. ¶ 38). Defendants will pay Intervenors' counsel a GMC Trucks, 55 F.3d at 785 (citing Girsh v. Jepson, sum of $399,500.00 for the same, half of which is to be 521 F.2d 153, 157 (3d Cir. 1975)). The proponents of paid to Sidley Austin LLP and the other half to Schnader the settlement agreement bear the burden to Harrison Segal & Lewis LLP. (Id. ¶ 39). demonstrate that these factors weigh in favor of approval. See id. II. DISCUSSION As to the first factor, the complexity and duration of the In examining the issues before us, we turn first to the litigation, this inquiry is meant "to capture 'the probable reasonableness of the proposed settlement agreement, costs, in both time and money, of continued litigation.'" and then to the appropriateness of the attorneys' fees GMC Trucks, 55 F.3d at 812 (quoting Bryan v. requested by counsel for [*13] Plaintiffs and Intervenors Pittsburgh Plate Glass Co., 494 F.2d 799, 801 (3d Cir. respectively. 1974)). As an initial observation, this suit already bears Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 5 of 9Page 5 of 9 2014 U.S. Dist. LEXIS 135309, *14 a lengthy procedural history, initiated over five years should "examine what the potential rewards (or ago with judgment as to liability entered in favor of downside) of litigation might have been had class Plaintiffs more than three years ago. Following appeal, counsel decided to litigate the claims rather than settle the Third Circuit authorized Intervenors to argue against them." Cendant, 264 F.3d at 237 (quoting GMC Trucks, the prior settlement agreement and certification of the 55 F.3d at 814) (internal quotation marks omitted). In class. Such proceedings would have required undertaking this inquiry, courts must not conduct a mini substantial investment of time and resources and may trial and should, to some degree, credit the appraisal of have resulted in further appeals. As settlement has class counsel as to the case's probability of success and eliminated potential delay, mitigated expenses, and will the potential defenses that may have been raised provide immediate [*15] benefit to the class, this factor against their causes of action. See Parks v. Portnoff weighs in favor of approval. See In re Certainteed Fiber Law Assocs., 243 F. Supp. 2d 244, 251 (E.D. Pa. 2003). Cement Siding Litig., No. 2270, 303 F.R.D. 199, 2014 Notably, the Court [*17] has already decided the U.S. Dist. LEXIS 36532, 2014 WL 1096030, at *17 (E.D. question of liability in Plaintiffs' favor. However, Plaintiffs Pa. March 20, 2014) ("That a settlement would eliminate maintain that Defendants may have appealed the delay and expenses and provide immediate benefit to decision absent a settlement and, also, highlight that the class militates in favor of approval." (citation Intervenors were positioned to challenge class omitted)). certification, potentially limiting the impact of the liability ruling to the named plaintiffs. (Doc. 347, p. 25). These The second factor, the reaction of the class, also concerns appear somewhat remote, and we find this militates in favor of approval. Not a single objection was factor to be neutral. filed protesting the agreement. In terms of other correspondence pertaining to the settlement, Plaintiffs The fifth consideration, regarding the risks of report that they received a total of three letters: two from establishing damages, "attempts to measure the families of two of the intervenors stating their intent to expected value of litigating the action rather than settling attend and participate in the fairness hearing, and it at the current time." Cendant, 264 F.3d at 238 (quoting another from the mother of an individual residing at one GMC Trucks, 55 F.3d at 816) (internal quotation marks of the ICFs/ID who desires that her daughter remain at omitted). Here, Plaintiffs sought injunctive relief alone. the facility. As to the letter requesting continued Plaintiffs reflect that the Agreement provides much of placement at a state-run facility, we note that the the relief that they had sought, highlighting that it Agreement protects that interest, and hence that the delineates concrete steps DPW must take to comply, comment is not adverse to the settlement. imposes a time-line requiring community placements to begin in less than a year, and outlines specific The third consideration queries the stage of the protections for those individuals choosing community proceeding and examines "the degree of case integration and those wishing to remain in a state development that class counsel [had] accomplished ICF/ID. Had the Court held a hearing on the appropriate prior to settlement" so that courts may "determine remedy and rendered a ruling, Plaintiffs maintain, the whether counsel had an adequate appreciation of the contours of the [*18] final order may not have been so merits of the case before negotiating." [*16] Warfarin, favorable to Plaintiffs, especially with regard to the 391 F.3d at 537 (citation and internal quotation marks specific constraints imposed upon Defendants. Indeed, omitted). As ably described by Plaintiffs in their brief, the upon determining liability in this matter, we encouraged Settlement Agreement "follows the completion of fact Plaintiffs and Defendants to return to negotiations to and expert discovery, the entry of summary judgment themselves shape the appropriate injunctive relief. (Doc. for Plaintiffs, the disposition of an appeal that provided 88, p. 23 n. 12). We agree that had the relief be born of Intervenors with the right to challenge class certification an adversarial proceeding rather than cooperative and participate in the remedy phase, and extensive negotiation, it may not have been as propitious from negotiations among Plaintiffs, DPW, and Intervenors Plaintiffs' standpoint. that aired numerous factual and legal contentions." (Doc. 347, p. 24; see also Doc. 345-1, ¶¶ 2-3, 10). We The sixth factor, the risks of maintaining a class action, find that counsel had ample understanding of the merits favors approval of the instant agreement. The Third of the action, pointing towards approval of the Circuit specifically authorized Intervenors to challenge settlement. class certification, and, absent a settlement agreement addressing their concerns, it is not unlikely that they Fourth, as to the risks of establishing liability, the court would have moved to decertify. Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 6 of 9Page 6 of 9 2014 U.S. Dist. LEXIS 135309, *18

Turning to the final three factors — pertaining to the awarded turns upon whether the original party and the ability of Defendants to withstand a greater judgment, intervenor are 'prevailing parties'"). the range of reasonableness of the settlement in light of the best recovery, and the range of reasonableness of Here, we have little trouble concluding that both the settlement in light of all the attendant risks of Plaintiffs and Intervenors are eligible for attorneys' fees, litigation — we note that these considerations "deal with noting that Plaintiffs secured a judgment on the merits monetary judgments and settlement funds, and thus are and that both parties successfully negotiated the instant inappropriately [*19] evaluated here." Inmates of Settlement Agreement, which, as previously discussed, Northumberland Cnty. Prison v. Reish, No. 08-cv-345, provides substantial benefits and guarantees to them 2011 U.S. Dist. LEXIS 46600, 2011 WL 1627951, at *3 respectively. Having concluded that such fees are due, (M.D. Pa. April 29, 2011); see also Pastrana v. Lane, we must then determine whether the amount of fees No. 08-468, 2012 U.S. Dist. LEXIS 23737, 2012 requested is reasonable. 602141, at *5 (E.D. Pa. Feb 24, 2012); Williams v. City of Phila., No. 08-1979, 2011 U.S. Dist. LEXIS 87467, Generally speaking, "a reasonable fee is one which is 2011 WL 3471261, at *3 n.1 (E.D. Pa. Aug. 8, 2011). 'adequate to attract competent counsel, but which does Even so, in applying the spirit of those factors to the not produce windfalls to attorneys.'" Public Interest Settlement Agreement under review, we find that those Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, factors, too, indicate in favor of approval. It is inarguable 1185 (3d Cir. 1995) (quoting Student Public Interest that DPW is subject to significant budgetary constraints. Research Grp. of N.J., Inc. v. AT&T Bell Labs., 842 F.2d In addition, the Agreement is exceptionally 1436, 1448 (3d Cir. 1988)) (alteration omitted). "The comprehensive, and, as Plaintiffs observe, confers most useful starting point for determining [*21] the benefits upon them comparable to the best possible amount of a reasonable fee is the number of hours recovery that Plaintiffs could have secured. (Doc. 347, reasonably expended on the litigation multiplied by a p. 29). reasonable hourly rate," Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), In sum, the balance of the Girsh factors weighs in favor which is known as the lodestar amount, see PIRG, 51 of approval of the proposed Settlement Agreement. F.3d at 1185. Having blessed the agreement itself, we next evaluate the petitions for attorneys' fees. In determining the number of hours reasonably expended, we "review the time charged, decide whether B. Attorneys' Fees, Litigation Expenses, and Costs the hours set out were reasonably expended for each of the particular purposes described and then exclude The ADA and RA both contain fee-shifting provisions those that are 'excessive, redundant, or otherwise permitting a district court, in its discretion, to award unnecessary.'" Maldonado v. Houstoun, 256 F.3d 181, attorneys' fees and costs to a prevailing party. See 42 184 (3d Cir. 2001) (quoting PIRG, 51 F.3d at 1188). U.S.C. § 12205; 29 U.S.C. § 794a(b). Parties are Typically, a reasonable hourly rate is calculated with considered "prevailing parties" if "they succeed on any reference to the prevailing market rates in the relevant significant issue in litigation which achieves some of the community, see Rode v. Dellarciprete, 892 F.2d 1177, benefits the parties sought in bringing suit." People 1183 (3d Cir. 1990), and in general, the relevant Against Police Violence v. City of Pittsburgh, 520 F.3d community is the forum of litigation, pursuant to the so- 226, 232 (3d Cir. 2008) (citing [*20] J.O. ex rel. C.O. v. called forum rate rule, see Interfaith Cmty. Org. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. Honeywell Intern., Inc., 426 F.3d 694, 705 (3d Cir. 2002)). A party may prevail, for example, by securing a 2005). However, an extra-jurisdictional rate may pertain judgment on the merits or by achieving a settlement where the need for special expertise of counsel from enforced through a consent decree. See Buckhannon another district is demonstrated or local counsel are Bd. & Care Home, Inc. v. W. Va. Dept. of Health & unwilling to handle the case. See id. Human Resources, 532 U.S. 598, 604, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). Intervenors may also qualify The party seeking fees bears the initial burden to as prevailing parties and be awarded fees. See demonstrate that the fees are reasonable. See id. generally 10-54 MOORE'S FED. PRAC. § 54.173(2)(b) (stating that "an intervenor is generally eligible for an 1. Plaintiffs' request for attorneys' fees, expenses, award of fees just as if the intervenor were an original and costs party to the litigation" and "whether fees should be In their unopposed Motion for Attorneys' Fees, Litigation Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 7 of 9Page 7 of 9 2014 U.S. Dist. LEXIS 135309, *21

Expenses, and Costs (Doc. 348), Plaintiffs request that postage, travel, and photocopying. (Id. ¶ 14). As we Defendants pay a total [*22] amount of $532,500.00, found in our Memorandum of 2011, we once again find even though they actually incurred $621,726.26 in fees that these costs are entirely reasonable considering the and expenses. Although, as noted, Defendants do not length [*24] and complexity of the underlying litigation, challenge Plaintiffs' request, we nonetheless review the and will approve the same. requested fees and costs for reasonableness. 2. Intervenors' request for attorneys' fees, litigation Plaintiffs' counsel represent that they spent 1,272.55 expenses, and costs hours litigating this heavily contested case over a period of more than five years.2 They delineate in detail, and In their unopposed Motion for Attorneys' Fees, Litigation provide billing records for, the tasks they properly Expenses, and Costs (Doc. 350), Intervenors request performed in conducting this litigation. (Doc. 348, ¶ that Defendants pay a total amount of $399,500.00, to 12.a). Significantly, they exclude certain time from their be divided and paid as follows: $199,750.00 to Sidley fees request as conceivably unnecessary or duplicative. Austin LLP (counsel for Springstead Intervenors), and (Id.¶ 12.c). As to their hourly rates, Mr. Meek billed at $199,750.00 to Schnader Harrison Segal & Lewis LLP $475; Mr. Murphy billed at $450; Ms. Resnick billed at (counsel for Ms. Solano). They state that they actually $400; Ms. Darr billed at $355; and Ms. Haubert billed at incurred a total of $823,649.88, consisting of fees and $165. (Id. ¶ 11). We note that Attorneys Meek, Murphy, expenses incurred by Sidley of $424,401.61, and fees Resnick, Darr, and Haubert have practiced law for and expenses incurred by Schnader of $399,248.27. approximately 36, 31, 28, 17, and 2 years, respectively, Though Intervenors' Motion is undisputed, we pause to and collectively demonstrate extensive experience in conduct our own examination. disabilities law. While the hourly rates charged may be As to hours expended, counsel for the Springstead somewhat higher than the typical rate here in the Middle Intervenors report 857.8 hours,3 and counsel for Ms. District, the rates are in step with those prescribed as Solano report 753.7 hours,4 for a total of 1,611.5 hours reasonable under the Community [*23] Legal Services expended by Intervenors collectively before 2014. fee schedule (Doc. 348-8, p. 20, 21), which courts in our Significantly, Intervenors do not submit hours expended District have deemed instructive. See Stockport Mtn. subsequent to December 31, 2013, even though Corp., LLC v. Norcross Wildlife Found., Inc., No. 11-cv- extensive settlement negotiations occurred after that 514, 2014 U.S. Dist. LEXIS 3694, 2014 WL 131604, at time. Intervenors maintain that the hours spent were *4 (M.D. Pa. Jan. 13, 2014); Brown v. TrueBlue, Inc., reasonable in light [*25] of the many substantial and No. 10-cv-514, 2013 U.S. Dist. LEXIS 158476, 2013 WL challenging tasks they performed in order to prevail in 5947499, at *2 (M.D. Pa. Nov. 5, 2013). In considering this matter, including preparing extensive objections to the expertise and skill of each attorney, as well as the the original settlement; briefing and litigating motions to relevant market rate, we find that the rates claimed are intervene; participating in the 2011 fairness hearing; not excessive. filing and litigating a successful appeal in the Third Multiplying the hours expended by counsels' hourly Circuit; and negotiating the instant settlement rates, we calculate a lodestar amount of $552,904.00. agreement. Finding this amount to be reasonable, it is easy for us to Turning to the hourly rates charged, we note for conclude that the $532,500.00 requested — which example that, over three years of litigation, lead counsel figure itself includes $68,822.26 in costs — is well within Mr. Hoffart billed at rates of $475, $555, and $625 per reason. hour, and lead counsel Mr. Solano billed at rates of With respect to costs, as stated, Plaintiffs report a total $530, $555, and $575 per hour. Mr. Hoffart has of $68,822.26. Such costs were incurred before 2012 practiced law for six years, works in Sidley's New York (Plaintiffs do not seek reimbursement for any expenses City office, and has a present hourly rate of $700, which subsequent to 2011) and represent the expense of filing was reduced for purposes of this public interest action. court documents, depositions, expert witnesses, Intervenors allege that his rate is comparable to other

3 Eleven timekeepers at Sidley worked on this matter, with 2 Specifically, individual counsel expended time as follows: Mr. lead counsel, Mr. Hoffart, spending 653.2 hours. Meek at 579.80 hours; Mr. Murphy at 69.00 hours; Ms. Resnick at 559.75 hours; Ms. Darr at 63.10 hours; and Ms. 4 Six timekeepers at Schnader worked on this litigation, with Haubert at .90. Mr. Solano as lead counsel spending a total of 670.2 hours. Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 8 of 9Page 8 of 9 2014 U.S. Dist. LEXIS 135309, *25 attorneys in the New York City market. Mr. Solano has more robust and comprehensive than its predecessor, been practicing law for 38 years with considerable and, significantly, the result of a far more inclusive appellate experience [*26] and state- and nation-wide process. We sincerely commend counsel and [*28] the recognition for the same. He works in Philadelphia and parties for their commitment to cooperation, which we currently bills at $720 per hour, also discounting his rate observe to involve genuine efforts to understand one for this litigation. Intervenors claim that Mr. Solano's rate another's perspectives and positions. In particular, all is comparable to the rates of other similar lawyers in the counsel have distinguished themselves by their Philadelphia market. exemplary work in a case that evoked justifiable passion. Their spirit of collaboration has resulted in a In recognition that their rates exceed the usual rates in meticulously drafted agreement which very tellingly is the Middle District of Pennsylvania, Intervenors maintain supported by all, including this Court. that an exception to the forum rate rule applies based on local counsels' unwillingness to take the case. An appropriate Order shall issue. Intervenors highlight that no area firms came forward to represent Intervenors and argue that such firms would ORDER have been unlikely to advance the necessary costs and resources to obtain the relief that was ultimately In accordance with the Memorandum filed on today's secured. date, IT IS HEREBY ORDERED AS FOLLOWS:

With reference to the cited exception to the forum rate 1. The Court APPROVES the proposed Settlement rule, and at the same time noting that counsel billed at Class and FINDS that the Settlement Agreement is reduced rates and omitted substantial hours from their fair, reasonable, and adequate; fees request, we find that the requested award of 2. Plaintiffs' Unopposed Motion for Final Approval of $399,500.00, which figure notably also includes the Proposed Revised Class Action Settlement expenses and costs, is reasonable. Agreement (Doc. 345) is GRANTED; With regard to expenses and costs specifically, counsel 3. The Settlement Agreement is APPROVED; for the Springstead Intervenors indicate costs of $25,519.61 and counsel for Ms. Solano report costs of 4. Plaintiffs' Unopposed Motion for Attorneys' Fees, $3,567.77, [*27] for a total of $29,087.38. These Litigation Expenses, and Costs (Doc. 348) is expenses were incurred, inter alia, for legal support GRANTED; services, legal research services, travel expenses, 5. Defendants will pay Plaintiffs' counsel the sum of filings fees, court reporters, telephone charges, and $532,500.00 for attorneys' fees, litigation expenses, postage. (Doc. 350-2, ¶ 15; Doc. 350-3, ¶ 18). and costs incurred; Considering the length and nature of this litigation, we find these costs reasonable. 6. Intervenors' Joint Unopposed Motion for Attorneys' Fees, Litigation Expenses, and Costs III. CONCLUSION (Doc. 350) is GRANTED;

The Settlement Agreement we bless today is a far cry 7. Defendants will [*29] pay Intervenors' counsel from the one approved three years ago. Even as we the sum of $399,500.00 for attorneys' fees, litigation accepted that agreement back in 2011, we harbored expenses, and costs incurred, in accordance with reservations and misgivings that certainly gave us the Motion; pause, but candidly should have stopped us in our tracks. In hindsight, we realize that we failed to 8. This action is hereby DISMISSED and the Clerk appreciate the depth of Intervenors' mistrust that their is directed to CLOSE this case; and wishes and decisions would be protected by an 9. The Court expressly retains jurisdiction as set agreement negotiated without their unique input. While forth in the Settlement Agreement, in order to enter we regret that all parties had to invest additional time any further orders that may be necessary or and resources to steward the case back to this Court appropriate in administering or implementing the and further negotiations, we perceive the fruits of that terms and provisions of the settlement agreement. process as extremely salutary. /s/ John E. Jones III Indeed, the Agreement approved today is substantially Case 4:16-cv-00469-MWB Document 52-1 Filed 07/05/17 Page 9 of 9Page 9 of 9 2014 U.S. Dist. LEXIS 135309, *29

John E. Jones III

United States District Judge

End of Document Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 1 of 9

Caution As of: July 3, 2017 3:03 PM Z

Bettger v. Crossmark, Inc.

United States District Court for the Middle District of Pennsylvania January 22, 2015, Decided; January 22, 2015, Filed CIVIL ACTION NO. 1:13-CV-2030

Reporter 2015 U.S. Dist. LEXIS 7213 *; 2015 WL 279754 merchandising services for consumer products such as PATRICIA BETTGER, Plaintiff v. CROSSMARK, INC., Frito-Lay, General Mills, Fuji Film, Johnson & Johnson Defendant and Kraft Foods. (Doc. 1 ¶ 3). Bettger has been an Prior History: Bettger v. Crossmark, Inc., 2014 U.S. hourly-paid retail representative for Crossmark since Dist. LEXIS 82031 (M.D. Pa., June 17, 2014) 1999. (Id. ¶ 2). Bettger worked full-time for Crossmark during 2008 and early 2009, but Crossmark switched Postiglione v. Crossmark, Inc., 2012 U.S. Dist. LEXIS her [*2] to a part-time schedule effective as of the 163615 (E.D. Pa., Nov. 14, 2012) March 27, 2009 pay period. (Doc. 28 ¶ 2; Doc. 31 at 5-6 Counsel: [*1] For Patricia A. Bettger, Plaintiff: Ralph A. ¶ 2; Doc. 33 ¶ 2). Bettger performs most of her work Powell, LEAD ATTORNEY, RALPH A POWELL ESQ duties at various store locations in Pennsylvania. (Doc. PC, NEWTOWN, PA; Richard P. Myers, LEAD 1 ¶ 16). During her period of full-time employment, ATTORNEY, Paul, Reich, & Myers, P.C., Philadelphia, Bettger began her day by connecting to Crossmark's PA. website from her personal computer at home to check email and to receive instructions on work assignments. For Crossmark, Inc., A CORPORATION, Crossmark, (Id. ¶¶ 17-18). Bettger was not specifically required to Inc., Defendants: Joshua H. Roberts, McCarter & connect to Crossmark's website from her home, and she English, LLP, Philadelphia, PA; Stephen E. Fox, FISH & could have connected from any internet-accessible RICHARDSON LLP, DALLAS, TX. computer device. (Doc. 28 ¶ 16; Doc. 31 at 19 ¶ 16; Doc. 33 ¶ 16). Bettger also spent approximately twenty Judges: Christopher C. Conner, Chief United States minutes each morning loading her car with work District Judge. materials. (Doc. 1 ¶ 23). After loading her car, Bettger departed home for her first assigned work location. (Id. ¶ Opinion by: Christopher C. Conner 24). She used her personal vehicle to drive to assigned stores, and Crossmark did not require her to clean or Opinion perform maintenance on her vehicle. (Doc. 28 ¶ 18; Doc. 31 at 20 ¶ 18; Doc. 33 ¶ 18). Crossmark paid Bettger for her morning commute only when she exceeded the established benchmarks of forty miles or MEMORANDUM one hour. (Doc. 28 ¶ 20; Doc. 31 at 21 [*3] ¶ 20; Doc. 33 ¶ 20). Presently before the court is the joint motion (Doc. 55) of plaintiff Patricia Bettger ("Bettger") and of defendant Bettger exercised substantial discretion over her daily Crossmark, Inc. ("Crossmark") for judicial approval of work schedule. She decided which assigned stores to settlement, pursuant to the Fair Labor Standards Act visit on which days, and in what order to visit them. ("FLSA"), 29 U.S.C. § 201 et seq. For the reasons that Crossmark only required that Bettger perform certain follow, the court will grant the motion in part and deny it assignments on a particular day of the week and that in part. she complete all assignments within a two-week time frame. (Doc. 28 ¶ 15; Doc. 31 at 19 ¶ 15; Doc. 33 ¶ 15). I. Factual Background & Procedural History Bettger recorded her work hours in Crossmark's online Crossmark is a provider of in-store marketing and retail SalesTrak system. (Doc. 28 ¶ 6; Doc. 31 at 7 ¶ 6; Doc. Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 2 of 9Page 2 of 9 2015 U.S. Dist. LEXIS 7213, *3

33 ¶ 6). Other than payroll support staff, only Bettger did not report and for which she was not paid. (Doc. 28 could enter her time or modify her entries in SalesTrak. ¶ 27; Doc. 31 at 25 ¶ 27; Doc. 33 ¶ 27). However, (Doc. 28 ¶ 7; Doc. 31 at 7 ¶ 7; Doc. 33 ¶ 7). Aside from Swaggert never threatened Bettger with termination for the time reports submitted into SalesTrak, neither entering more than 30 minutes of administrative time in Crossmark nor Bettger has any record of Bettger's work a single day, and Bettger had not heard of other hours. (Doc. 28 ¶ 10; Doc. 31 at 11 ¶ 10; Doc. 33 ¶ 10). employees being terminated for that reason. (Doc. 28 ¶ It is undisputed that Bettger was paid for all the time that 34; Doc. 31 at 29 ¶ 34; Doc. 33 ¶ 34). Indeed, she she reported in SalesTrak. (Doc. 28 ¶ 8; Doc. 31 at 8-10 entered more than 30 minutes a day or 2.5 hours a ¶ 8; Doc. 33 ¶ 8). week of administrative time [*6] into SalesTrak on numerous occasions in 2008, and was paid in full each Crossmark's written policy requires Bettger to record time. (Doc. 28 ¶ 33; Doc. 31 at 28-29 ¶ 33; Doc. 33 ¶ accurately the time she worked in the SalesTrak 33). Furthermore, it is undisputed that Bettger never system. (Doc. 28 ¶ 11; Doc. 31 at 11-13 ¶ 11; Doc. 33 ¶ complained to anyone in Crossmark's Payroll or Human 11). It also instructs Bettger to report the actual amount Resources Departments, or to corporate headquarters, of time she [*4] spent on administrative tasks, and not about Swaggert's alleged instructions. (Doc. 28 ¶ 35; to use a "rule of thumb" by estimating 15 or 30 minutes Doc. 31 at 29-30 ¶ 35; Doc. 33 ¶ 35). per day for such tasks. (Doc. 28 ¶ 12; Doc. 31 at 13-15 ¶ 12; Doc. 33 ¶ 12). The written policy further states that On February 9, 2011, Bettger filed a consent form to join supervisors are not allowed to "suggest" that employees the putative collective action Postiglione et al. v. work extra time without reporting it. (Doc. 28 ¶ 13; Doc. Crossmark, Inc., Civ. A. No. 11-960, in the Eastern 31 at 15-17 ¶ 13; Doc. 33 ¶ 13). Additionally, the policy District of Pennsylvania. Plaintiffs in that action sought prohibits employees from working overtime without to certify a nationwide class of Crossmark Retail advance approval. (Doc. 28 ¶ 14; Doc. 31 at 17-19 ¶ 14; Representatives for violations of § 216(b) of the FLSA Doc. 33 ¶ 14). If an employee works unapproved based on allegations of unpaid overtime. On November overtime, they will be paid but they may be subject to 15, 2012, the court denied the Postiglione plaintiffs' discipline for non-compliance. (Id.) motion for conditional collective action certification, holding that (1) plaintiffs were not similarly situated and The parties dispute whether Bettger's supervisor, Jane (2) plaintiffs failed to establish an illegal company-wide Swaggert ("Swaggert"), instructed Bettger consistent policy on behalf of Crossmark. Civ. A. No. 11-960, 2012 with this written policy. According to Bettger, Swaggert U.S. Dist. LEXIS 163615, 2012 WL 5829793 (E.D. Pa. periodically advised her: "we have to keep the week Nov. 15, 2012). The court also found that Bettger was under 40 hours unless there's an exception." (Doc. 31-1, improperly joined to the action because plaintiffs' claims Ex. 1 at 134:23-24). When Bettger informed Swaggert did not rise out of a common transaction or occurrence. that she was working more time than she was allowed, (Id.) Swaggert allegedly responded, "Well, my hands are tied. You can only—you can't put that in." (Doc. 31-1, On January 24, 2013, Bettger filed an individual Ex. 1 at 190:5-8). Significantly, however, Bettger does complaint [*7] in this case in the Eastern District of not recall whether Swaggert instructed [*5] her to keep Pennsylvania. (Doc. 1). On June 27, 2013, the Eastern her reported weekly hours under 40 even if she actually District of Pennsylvania entered an order transferring worked more than 40 hours, or simply advised her to get Bettger's case to the Middle District of Pennsylvania. her work done within 40 hours. (Doc. 28 ¶ 37; Doc. 31 at (Doc. 13). After a period of discovery, Crossmark filed a 31 ¶ 37; Doc. 33 ¶ 37; Doc. 31-1, Ex. 1 at 138:9-19). On motion (Doc. 26) for summary judgment and a motion at least six occasions during her period of full-time (Doc. 34) in limine. The court granted Crossmark's employment in 2008 and early 2009, Bettger reported motion for summary judgment in part, limiting the scope and was paid for overtime. (Doc. 28 ¶ 29; Doc. 31 at 25- of Bettger's claims for unpaid overtime compensation to 26 ¶ 29; Doc. 33 ¶ 29). the unreported hours she allegedly spent performing administrative tasks. (Doc. 38). The court granted Bettger also alleges that Swaggert orally instructed her Crossmark's motion in limine in full, precluding Bettger to limit her administrative time to 30 minutes a day or from introducing evidence relating to (1) other FLSA 2.5 hours a week. (Doc. 28 ¶ 31; Doc. 31 at 26 ¶ 31; lawsuits against Crossmark and (2) Crossmark's failure Doc. 33 ¶ 31). She estimates that during her full-time to maintain login and logout records from SalesTrak. employment in 2008 and early 2009, she performed (Id.) administrative tasks for 5.5 to 8 hours per week that she Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 3 of 9Page 3 of 9 2015 U.S. Dist. LEXIS 7213, *7

Before proceeding to trial, the parties agreed to settle LEXIS 75840, 2014 WL 2114582 (E.D. Pa. June 4, the case. (Doc. 55 ¶¶ 9-10). The court subsequently 2014); Brown v. TrueBlue, Inc., No. 1:10-CV-514, 2013 ordered the parties to file any proposed settlement U.S. Dist. LEXIS 137349, 2013 WL 5408575 (M.D. Pa. agreement for judicial approval. (Doc. 48). On Sept. 25, 2013); Deitz v. Budget Renovations & Roofing, November 30, 2014, Bettger filed a motion (Doc. 52) for Inc., No. 4:12-CV-0718, 2013 U.S. Dist. LEXIS 75005, judicial approval of settlement, and on December 12, 2013 WL 23338496 (M.D. Pa. May 29, 2013); Altenbach 2014, the parties submitted the instant proposed v. Lube Ctr., No. 1:08-CV-2178, 2013 U.S. Dist. LEXIS settlement agreement accompanied [*8] by a brief in 1252, 2013 WL 74251 (M.D. Pa. Jan. 4, 2013); Cuttic v. support. (See Doc. 55). The motion is fully briefed and Crozer-Chester Med. Ctr., 868 F. Supp. 2d 464 (E.D. ripe for disposition. Pa. 2012); Brumley v. Camin Cargo Control, Inc., Civ. A. No. 08-1798, 2012 U.S. Dist. LEXIS 40599, 2012 WL II. Legal Standard 1019337 (D.N.J. Mar. 26, 2012); Morales v. PepsiCo, Inc., Civ. A. No. 11-6275, 2012 U.S. Dist. LEXIS 35284, Congress enacted the FLSA for the purpose of 2012 WL 870752 (D.N.J. Mar. 14, 2012). In the absence "protect[ing] all covered workers from substandard of guidance from the Third Circuit, courts have routinely wages and oppressive working hours." Barrentine v. employed the considerations set forth by the Eleventh Arkansas-Best Freight Sys., 450 U.S. 728, 739, 101 S. Circuit in Lynn's Food Stores, 679 F.2d 1350, to Ct. 1437, 67 L. Ed. 2d 641 (1981); see also 29 U.S.C. § evaluate proposed settlement agreements. See, e.g., 202(a). The statute was designed to ensure that each McGee, 2014 U.S. Dist. LEXIS 75840, 2014 WL employee covered by the Act would receive "[a] fair 2114582; Brown, 2013 U.S. Dist. LEXIS 137349, 2013 day's pay for a fair day's work and would be protected WL 5408575; Deitz, 2013 U.S. Dist. LEXIS 75005, 2013 from the evil of overwork as well as underpay." WL 23338496; Altenbach, 2013 U.S. Dist. LEXIS 1252, Barrentine, 450 U.S. at 739 (internal citations and 2013 WL 74251; Cuttic, 868 F. Supp. 2d 464; Brumley, quotations omitted). To safeguard employee rights 2012 U.S. Dist. LEXIS 40599, 2012 WL 1019337; made mandatory by the statute, a majority of courts Morales, 2012 U.S. Dist. LEXIS 35284, 2012 WL have held that bona fide FLSA disputes may only be 870752. settled or compromised through payments made under the supervision of the Secretary of the Department of Under Lynn's Food Stores, 679 F.2d 1350, a proposed Labor or by judicial approval of a proposed settlement in compromise may satisfy judicial review if it is a "fair and an FLSA lawsuit. See, e.g., Lynn's Food Stores, Inc. v. reasonable resolution of a bona fide dispute over FLSA U.S. ex rel. U.S. Dep't of Labor, 679 F.2d 1350, 1354 provisions." Id. at 1355. An agreement resolves a bona (11th Cir. 1982) ("[W]hen the parties submit a settlement fide dispute when there is some doubt as to whether the to the court for approval, the settlement is more likely to plaintiff would succeed on the merits at trial. See id. at reflect a reasonable compromise of disputed issues 1354; Deitz, 2013 U.S. Dist. LEXIS 75005, 2013 WL than a mere waiver of statutory rights brought about by 23338496, at *3; Collins, 568 F. Supp. 2d at 719-20. an employer's overreaching."); Copeland v. ABB, Inc., Disputed issues may include, for example, "FLSA 521 F.3d 1010 (8th Cir. 2008); O'Connor v. United coverage or computation of back wages." Lynn's Food States, 308 F.3d 1233, 1243-44 (Fed. Cir. 2002); Dees Stores, 679 F.2d at 1354; see Brown, 2013 U.S. Dist. v. Hydradry, Inc., 706 F. Supp. 2d 1227 (M.D. Fla. LEXIS 137349, 2013 WL 5408575, at *1. If a reviewing 2010); Collins v. Sanderson Farms, Inc., 568 F. Supp. court is satisfied that an agreement does in fact 2d 714 (E.D. La. 2008). But see Martin v. Spring Break decide [*10] a bona fide dispute, it proceeds in two '83 Prods., 688 F.3d 247 (5th Cir. 2012). Under § phases: first, the court assesses whether the agreement 216(b), an employer who violates § 206 or § 207 is is fair and reasonable to the plaintiff employee; second, liable to the affected employee or employees for unpaid it determines whether the settlement furthers or minimum or overtime compensation, [*9] and for an "impermissibly frustrates" the implementation of the additional equal amount in liquidated damages. 29 FLSA in the workplace. Altenbach, 2013 U.S. Dist. U.S.C. § 216(b). Although the Third Circuit has not LEXIS 1252, 2013 WL 74251, at *1; see McGee, 2014 addressed whether such § 216(b) actions claiming U.S. Dist. LEXIS 75840, 2014 WL 2114582, at *2; unpaid wages may be settled privately without first Brown, 2013 U.S. Dist. LEXIS 137349, 2013 WL obtaining court approval, district courts within the Third 5408575, at *1; Dees, 706 F. Supp. 2d at 1241. Circuit have followed the majority position and assumed that judicial approval is necessary. See, e.g., McGee v. III. Discussion Ann's Choice, Civ. A. No. 12-2664, 2014 U.S. Dist. Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 4 of 9Page 4 of 9 2015 U.S. Dist. LEXIS 7213, *10

A. Terms of Proposed Agreement Civil Rights Act of 1964, . . . Americans with Disabilities Act, . . . Age Discrimination in Under the terms of the proposed settlement agreement, Employment Act, . . . the Fair Labor Standards Act, Bettger will receive $3,298.55 for unpaid wages and . . . (specifically including the Equal Pay Act), . . . $3,298.55 for liquidated damages, $6,597.09 in total. the Family and Medical Leave Act, . . . the (Doc. 55 Ex. C ¶ 2.1). Bettger's counsel will receive Occupational Safety and Health Act, . . . the $16,502.90 for attorneys' fees and costs. (Id.) Regarding Sarbanes-Oxley Act of 2002; and the Employee these payments, the agreement specifically states: Retirement Income Security Act, . . . as well as any [Crossmark's payments] shall constitute claims arising out of or based upon any allegations consideration and payment in full for (i) all claims seeking to recover wages, salary, commissions, Bettger has or may have against [Crossmark]; (ii) bonuses, front or back pay, benefits, stock options, any and all attorneys' fees, expenses, costs of court profit sharing interests, or any other such and any other unknown fees, costs and/or employee-related compensation or benefits, or expenses incurred by Bettger and/or her legal based upon allegations of breach of contract, counsel . . . and (iii) Bettger's releases, promises, defamation, promissory estoppel, tortious and obligations contained herein. interference, implied covenants, invasion of privacy, assault and battery[,] . . . false imprisonment, (Id. ¶ 2.2). The agreement requires Bettger to provide negligence[,] . . .and/or intentional or other infliction Crossmark with an affidavit reiterating her of emotional distress. understanding of the above terms; acknowledging that she is obligated to abide by Crossmark's [*11] time (Id. ¶ 4.1). The agreement further details Bettger's recording policies; and stating that she will properly considered waiver of any [*13] and all claims specifically record all time actually worked for Crossmark moving arising under the Age Discrimination in Employment Act forward. (Id. ¶ 3.0). ("ADEA"). 29 U.S.C. § 621 et seq.; (id. ¶ 4.2). Therein, Bettger acknowledges that she has received In addition, the agreement contains the following consideration "in addition to anything of value to which release provision: she was previously entitled" in return for waiving all For and in consideration of the covenants and/or ADEA claims against Crossmark arising prior to the date promises contained herein, [Bettger] . . . hereby of the agreement's execution. (Id.) The provision allows fully, finally, and forever RELEASES, ACQUITS, Bettger seven days after the date of execution to revoke and DISCHARGES [Crossmark] . . . from, and her waiver of ADEA claims. (Id.) covenants not to sue [Crossmark] . . . for any and Furthermore, in the section titled "Dismissal of all claims, demands, actions, causes of action, Governmental Proceedings," Bettger "affirms that she other liabilities, and/or damages, if any, known or has no charges of discrimination, harassment, and/or unknown, whether arising at law, by statute, or in retaliation or any other claim pending with the Equal equity, which Bettger, or any other person or entity Employment Opportunity Commission, Pennsylvania claiming by, through or under her, may have or Department of Human Rights, the Department of Labor, claim to have, jointly or severally, against or other state or federal government agency against [Crossmark] that in any way arise out of or are Crossmark." (Id. ¶ 5.2). She agrees, however, that "[t]o connected with acts, omissions, conduct, the extent that any such charges exist, [she will] relationships, occurrences, dealings, undertake all necessary efforts to withdraw the communications, events, and/or transactions that charge(s) and to dismiss any proceeding associated have occurred on or before the Effective Date, with such charge(s)." (Id.) including, without limitation, the claims asserted in the White Lawsuit and/or Postiglione Lawsuit and Bettger also represents in the agreement that "she will any other contractual, constitutional, statutory, or not testify or submit an affidavit, declaration or common law or tort claims whatsoever, including, affirmation in any other [*14] lawsuits involving without limitation, any claims for [*12] wrongful [Crossmark], including, without limitation, any lawsuits discharge or termination or violations of any state or initiated by persons who were named-plaintiffs or opt-in federal law which provides civil remedies for the plaintiffs in the Postiglione Lawsuit unless required to do enforcement of rights arising out of the employment so by subpoena or court order." (Id. ¶ 6.1). Additionally, relationship, including claims under Title VII of the she "will not assist or work with any persons initiating Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 5 of 9Page 5 of 9 2015 U.S. Dist. LEXIS 7213, *14 any other lawsuits against [Crossmark], including, 15, 2012) ("Courts have consistently concluded that a without limitation, any persons who were named- violation is willful where an employer intentionally plaintiffs or opt-in plaintiffs in the Postiglione Lawsuit discourages or inhibits employees from accurately unless required to do so by subpoena or court order." reporting overtime." (citing cases)). Relying exclusively (Id.) Finally, the proposed settlement agreement on her own estimate of total unpaid work hours, (Doc. provides that Bettger's counsel will file a stipulation of 38 at 18), at trial, Bettger would endeavor to prove dismissal with prejudice no later than three business $4,337.01 in unpaid overtime wages between April 21, days after receiving the executed agreement from 2008 and March 26, 2009; this would entitle her to Crossmark. (Id. ¶ 5.1). $8,674.02 under § 216(b). (See Doc. 55 at 9).

B. Bona Fide Dispute In response, Crossmark contends that Bettger is not owed compensation for time spent performing The court first addresses the threshold question of unreported administrative tasks because Crossmark whether the parties' agreement resolves a bona fide lacked actual or constructive knowledge of this work. dispute. Bettger asserts that Crossmark willfully violated (Doc. 27 at 10-13). Subsequently, Crossmark argues the FLSA by failing to compensate her for unreported that, because any alleged violations were not willful, overtime hours between April 21, 20081 and March 26, Bettger's entire claim period falls outside of the 2009.2 (See Doc. 55 at 8-9). Crossmark responds that applicable two-year statute of limitations period.3 (Id. at Bettger is not entitled to compensation under the FLSA 13-14). Crossmark further contends that, even under the for any overtime that she failed to report. (Id.) three-year statute of limitations applicable to willful violations, Bettger lacks any meaningful record of the An employee's FLSA claim is subject to a two-tiered "amount or extent of unpaid time she [*17] supposedly statute of limitations: two years for ordinary violations worked." (Doc. 27 at 15-16). and three years for willful violations. 29 U.S.C. § 255(a). To establish a willful violation, the employee must Relying on the foregoing arguments, the parties aver provide sufficient evidence to indicate that the employer that their agreement settles a bona fide dispute, as "either knew or showed reckless disregard" as to there is a reasonable possibility that Bettger would not whether its conduct was prohibited by the FLSA. prevail at trial. (Doc. 55 at 9); see Lynn's Food Stores, McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 679 F.2d at 1354; Deitz, 2013 U.S. Dist. LEXIS 75005, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988). Simple 2013 WL 23338496, at *3; Collins, 568 F. Supp. 2d at negligence on the part of an employer is not sufficient to 719-20. The court agrees. Indeed, upon consideration of constitute a willful violation. Id. Crossmark's motion for summary judgment, the court noted that although "a jury could . . . reasonably find that Better asserts that Swaggert directed her to refrain from Crossmark, through Swaggert's actions, willfully violated reporting overtime hours that she knew Bettger worked. the FLSA," Bettger's claim is "marginal at best." (Doc. (Doc. 31-1, Ex. 1 at 190:5-8). Bettger further [*16] avers 38 at 21 (emphasis added)). As explained supra, at trial, that Crossmark, through Swaggert's actions, willfully Bettger would be required to establish that Crossmark violated the FLSA as it applies to Bettger's willfully violated the FLSA, and it is unclear from the compensation. (Doc. 55 at 9); see Stanislaw v. Erie record whether Swaggert's comments evidence a Indemnity Co., Civ. A. No. 07-1078, 2012 U.S. Dist. knowing violation on the part of Crossmark. (See Doc. LEXIS 19032, 2012 WL 517332, at *10 (W.D. Pa. Feb. 31-1, Ex. 1 at 134:23-24). Bettger would also be required to prove the extent and amount of her damages by a preponderance of the evidence. Bettger 1 The [*15] statute of limitations was tolled when Bettger relies [*18] principally upon estimates of the number of joined the putative collective action on February 9, 2011. The extra administrative hours she worked to support her statute of limitations restarted when she was dismissed from claim for $4,337.01 in unpaid overtime wages. (Doc. 38 the collective action on November 14, 2012, until she filed her complaint in the instant case on January 24, 2013. (See Doc. at 18). She otherwise lacks corroborative evidence of 13). Thus, the three-year statute of limitations applicable to these extra hours. In sum, both the factual willful violations bars any claims for compensation accruing before April 21, 2008. 3 The time period applicable to Bettger's claim ends at the pay 2 Bettger's claim for wages ends at the March 26, 2009 pay period of March 26, 2009, and the two-year statute of period, when she transitioned from full-time to part-time status. limitations governing ordinary FLSA violations bars any claims (Doc. 31 at 36). for compensation accruing before April 21, 2009. Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 6 of 9Page 6 of 9 2015 U.S. Dist. LEXIS 7213, *18 underpinnings of Bettger's claims and Bettger's legal Although this matter commenced as a putative collective right to FLSA coverage are debatable on the present action, it can no longer be described as complex—a record. Hence, the court is satisfied that the instant single plaintiff asserts only one claim. Even so, the settlement facilitates the compromise of a bona fide relative expense of further [*20] litigation weighs dispute, rather than the "mere waiver of statutory rights strongly in favor of settlement. brought about by an employer's overreaching." Lynn's Food Stores, 679 F.2d at 1354. Furthermore, the court finds that the parties obtained an "adequate appreciation of the merits before negotiating." C. Fair and Reasonable Settlement Deitz, 2013 U.S. Dist. LEXIS 75005, 2013 WL 23338496, at *6 (quoting In re Prudential Ins. Co. Am. The court will next determine whether the settlement Sales Practice Litig. Agent Actions, 148 F.3d 283, 318 agreement proposed by the parties is fair and (3d Cir. 1998)); cf. In re Gen. Motors Corp. Pick-Up reasonable to Bettger. In undertaking this analysis, Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 814 district courts within the Third Circuit have considered (3d Cir. 1995) ("[T]he inchoate stage of case the factors set forth in Girsh v. Jepson, 521 F.2d 153, development reduces our confidence that the 157 (3d Cir. 1975), which established evaluative criteria proceedings had advanced to the point that counsel for the fairness of proposed class action settlements. could fairly, safely, and appropriately decide to settle the See, e.g., McGee, 2014 U.S. Dist. LEXIS 75840, 2014 action."). Counsel for the parties completed fact WL 2114582, at *2; Brown, 2013 U.S. Dist. LEXIS discovery before fully briefing Crossmark's motion for 137349, 2013 WL 5408575, at *2; Deitz, 2013 U.S. Dist. summary judgment and motion in limine. (Docs. 26, 34). LEXIS 75005, 2013 WL 23338496, at *5-8; Altenbach, The court's subsequent rulings narrowed the scope of 2013 U.S. Dist. LEXIS 1252, 2013 WL 74251, at *2; the lawsuit and precluded Bettger from introducing Brumley, 2012 U.S. Dist. LEXIS 40599, 2012 WL certain types of evidence at trial. (Doc. 38). Shortly after 1019337, at *4-5. Girsh directs courts to examine the submitting pretrial memoranda, the parties commenced following nine factors: settlement discussions leading to the instant compromise. Considering the parties' awareness of the (1) the complexity, expense, and likely duration of litigable issues at this advanced stage of the the litigation; (2) the reaction of the class to the proceedings, the court has no doubt that the parties, as settlement; (3) the stage of the proceedings and the well as their respective counsel, appreciate the merits of amount of discovery completed; [*19] (4) the risks the case. of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class Moreover, as discussed supra, the parties have clearly action through the trial; (7) the ability of the set forth the challenges that Bettger would face defendants to withstand a greater judgment; (8) the establishing liability and damages at trial. See Gen. range of reasonableness of the settlement fund in Motors, 55 F.3d at 814 ("By evaluating the risks [*21] of light of the best possible recovery; and (9) the establishing liability [and damages], the district court can range of reasonableness of the settlement fund to a examine what the potential rewards (or downside) of possible recovery in light of all the attendant risks of litigation might have been . . . ."). To accomplish this, litigation. Bettger would be required (1) to demonstrate that Crossmark willfully violated the FLSA and (2) to prove Girsh, 521 F.2d at 157-58 (citation omitted). the amount and extent of her uncompensated overtime work. Given the relative paucity of evidence on these Applying the appropriate Girsh factors to the matter sub points, Bettger's success at trial is far from guaranteed. judice, the court is satisfied that the agreement reaches a fair and reasonable compromise between the parties. Ultimately, if the litigation resolved in her favor, Bettger Significantly, the cost of litigating has already outpaced would obtain $8,674.02 in damages in addition to a full the monetary value of Bettger's claims. See In re award of attorneys' fees and costs. Although Crossmark Cendant Corp. Litig., 264 F.3d 201, 233 (3d Cir. 2001) does not address its ability to withstand a judgment in ("This factor captures the probable costs, in both time excess of its obligations under the proposed settlement, and money, of continued litigation." (internal quotation it notes that "it risk[s] an award of counsel fees marks omitted)). Bettger's maximum possible recovery substantially greater than the compromise amount is $8,674.02, whereas, as of September 14, 2014, her should it go to trial and lose." (Doc. 55 at 10). attorneys' fees totaled $43,277.50. (Doc. 55 at 9, Ex. A). Conversely, if Crossmark were to prevail, Bettger would Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 7 of 9Page 7 of 9 2015 U.S. Dist. LEXIS 7213, *21 be responsible for covering her attorneys' fees and III), 18 F. Supp. 3d 844, 2014 WL 1882642, at *6 (S.D. costs, and her overtime work would be left Tex. 2014) ("[T]he release appropriately applies only to uncompensated. These calculations are speculative at wage and hour claims and is thus not overly broad."). In best, however, given the uncertain outcome if the case addition, the Third Circuit requires all waivers of went to trial. See Gen. Motors, 55 F.3d at 806 ("This employment discrimination claims to be made inquiry measures the value of the settlement [*22] itself "knowingly and willfully" and directs courts to consider to determine whether the decision to settle represents a the totality of the circumstances when assessing the good value for a relatively weak case or a sell-out of an validity of such waivers. Cuchara v. Gai-Tronics Corp., otherwise strong case."). Under the terms of the 129 F. App'x 728, 730-31 (3d Cir. 2005) (quoting proposed settlement, Bettger receives $6,597.09 in Coventry v. U.S. Steel Corp., 856 F.2d 514, 522 (3d damages and $16,502.90 for attorney's fees and costs. Cir.1988)). The relevant totality of the circumstances Considering all of the applicable Girsh factors, and test is comprised of a list of factors, including "the clarity especially in light of the risks of proceeding to trial and and specificity of the release language" and "whether the relative costs of continued litigation, the court finds the consideration given in exchange [*24] for the waiver that the proposed settlement is fair and reasonable. and accepted by the employee exceeds the benefits to which the employee was already entitled by contract or D. Release of Claims Provisions law."4 Cuchara, 129 F. App'x at 731 (quoting Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988)). Finally, the court must determine whether the proposed settlement furthers or "impermissibly frustrates" the The court finds the release provisions inappropriately implementation of the FLSA in the workplace. comprehensive; the provisions preclude Bettger from Altenbach, 2013 U.S. Dist. LEXIS 1252, 2013 WL raising any and all claims she may have against 74251, at *1; see McGee, 2014 U.S. Dist. LEXIS 75840, Crossmark arising prior to the execution date of the 2014 WL 2114582, at *2; Brown, 2013 U.S. Dist. LEXIS agreement and require her to dismiss any charges of 137349, 2013 WL 5408575, at *1; Dees, 706 F. Supp. discrimination, harassment, or retaliation currently 2d at 1241. Having carefully considered the terms of the pending with any government agency. These [*25] agreement, the court finds that the overly broad release terms extend far beyond the pale of the FLSA claim sub provisions are antithetical to the FLSA and therefore judice. The court has no information regarding the value must be excluded. (See Doc. 55 Ex. C ¶¶ 4.1, 4.2, 5.2). of the released claims to the parties, and the parties fail to provide any explanation for the agreement's far- District courts reviewing proposed FLSA settlements reaching waivers. See Hogan, 821 F. Supp. 2d at 1284 may require litigants to limit the scope of waiver and ("[T]he waiver provision, if allowed, would have been release provisions to "claims related to the specific extracted from [plaintiff] without any independent litigation" in order to ensure equal bargaining power compensation for it, as far as the record shows."). The between the parties. Singleton v. First Student Mgmt. parties assert that that the non-monetary terms of the LLC, Civ. A. No. 13-1744 JEI/JS, 2014 U.S. Dist. LEXIS settlement are reasonable in part because Bettger has 108427, 2014 WL 3865853, at *8-9 (D.N.J. Aug. 6, no additional claims against Crossmark. This assertion 2014); [*23] see Brumley, 2012 U.S. Dist. LEXIS 40599, misses the mark entirely. (Doc. 55 at 10 ("[T]he non- 2012 WL 1019337, at *8 ("[W]orkers seeking to recover monetary terms of the settlement agreement are backpay may be willing to waive unknown claims in order to access wrongfully withheld wages as soon as possible. . . ."); Hogan v. Allstate Beverage Co., 821 F. 4 The complete list of factors is as follows: "(1) the clarity and Supp. 2d 1274, 1282 (M.D. Ala. 2011) ("[Pervasive specificity of the release language; (2) the plaintiff's education release] provisions confer a partially offsetting benefit on and business experience; (3) the amount of time the plaintiff the employer that is ancillary to the bona-fide dispute had for deliberation about the release before signing it; (4) over FLSA coverage and wages due." (internal whether plaintiff knew or should have known his rights upon quotation marks omitted)); Moreno v. Regions Bank, execution of the release; (5) whether plaintiff was encouraged 729 F. Supp. 2d 1346, 1351 (M.D. Fla. 2010) ("Although to seek, or in fact received benefit of counsel; (6) whether inconsequential in the typical civil case (for which there was an opportunity for negotiation of the terms of the settlement requires no judicial review), an employer is agreement; and (7) whether the consideration given in not entitled to use an FLSA claim . . . to leverage a exchange for the waiver and accepted by the employee release from liability unconnected to the FLSA."); cf. In exceeds the benefits to which the employee was already entitled by contract or law." Cuchara, 129 F. App'x at 731 re Wells Fargo Wage & Hour Emp't Practices Litig. (No. (quoting Cirillo, 862 F.2d at 451). Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 8 of 9Page 8 of 9 2015 U.S. Dist. LEXIS 7213, *25 reasonable under all of the circumstances. [Bettger] enacted in part to combat "inequalities in bargaining does not have any claim other than the instant wage power between employers and employees." Lynn's claim.")). Under the release provisions as currently Food Stores, 679 F.2d at 1352 (citing Brooklyn Sav. written, if Bettger discovers any potential cause of action Bank v. O'Neil, 324 U.S. 697, 706, 65 S. Ct. 895, 89 L. arising from events that predate the agreement's Ed. 1296 (1945)). Tasked with ensuring that execution, she will be barred from litigating against implementation of the FLSA is furthered, not frustrated, Crossmark. Thus, Bettger is precluded from raising any by the parties' agreement, the court cannot approve the claims founded upon events taking place between release provisions in their present form. See Altenbach, commencement of her employment with Crossmark in 2013 U.S. Dist. LEXIS 1252, 2013 WL 74251, at *1; 1999 and finalization of the instant agreement. Applying Brumley, 2012 U.S. Dist. LEXIS 40599, 2012 WL the exacting [*26] scrutiny mandated by the FLSA, the 1019337, at *8; Hogan, 821 F. Supp. 2d at 1282-84; court is compelled to find that such a broad waiver Moreno, 729 F. Supp. 2d at 1351-52; Dees, 706 F. impermissibly frustrates the implementation of an Supp. 2d at 1241. Therefore, the court approves only otherwise fair and reasonable settlement. the provisions that release Crossmark from claims that fall within the ambit of the FLSA and the Equal Pay Act Furthermore, the court lacks sufficient information to and arise from the facts of the instant litigation; the properly evaluate whether Bettger's waiver of parties are directed to strike all additional [*28] terms of employment discrimination claims is made knowingly the release provisions from paragraphs 4.1, 4.2, and 5.2 5 and willfully. See Cuchara, 129 F. App'x at 730-31 of the agreement. (citing Coventry, 856 F.2d at 522). Although the agreement endeavors to address this point, the Third IV. Conclusion Circuit totality of the circumstances test requires more. (See Doc. 55 Ex. C ¶ 8.1 ("Bettger understands that by For all of the foregoing reasons, the parties' joint motion signing this Agreement, she is agreeing to all of the (Doc. 55) for judicial approval of settlement will be provisions set forth in the Agreement, and has read and granted in part and denied in part. An appropriate order understood each provision.")). For example, after will issue. reviewing the instant record, the terms of the settlement agreement, and the parties' supporting materials, the /s/ CHRISTOPHER C. CONNER court is unaware of any "consideration given [by Christopher C. Conner, Chief Judge Crossmark] in exchange for the waiver . . . [that] exceeds the benefits to which [Bettger] was already United States District Court entitled by contract or law." Cuchara, 129 F. App'x at 731 (quoting Cirillo, 862 F.2d at 451). Hence, one factor Middle District of Pennsylvania from the Third Circuit totality of the circumstances test weighs against the waiver's validity. Id. Additionally, Dated: January 22, 2015 although the agreement states that Bettger "has no ORDER charges of discrimination, [*27] harassment, and/or retaliation or any other claim pending" with any state or AND NOW, this 22nd day of January, 2015, upon federal government agency, it requires her to withdraw consideration of the joint motion (Doc. 52) for approval any pending charges to the extent that they exist. (Doc. of settlement by plaintiff Patricia Bettger and defendant 55 Ex. C ¶ 5.2). Ultimately, on the record sub judice, the Crossmark, Inc., and for the reasons set forth in the court cannot find that Bettger's release of employment accompanying memorandum, it is hereby ORDERED discrimination claims is knowing and voluntary. that: In conclusion, the court is cognizant that the FLSA was 1. The parties' motion (Doc. 52) is GRANTED in part and DENIED in part consistent with the court's memorandum and the following paragraphs.

2. The parties are directed to limit the scope of the 5 The court notes that under the Older Workers Benefit release provisions in paragraphs 4.1, 4.2, and 5.2 Protection Act, 29 U.S.C. § 626, a heightened level of scrutiny applies to waivers of ADEA claims; each factor from the of the agreement to waive only claims that fall totality of the circumstances test must be satisfied, and the within the ambit of the FLSA and the Equal Pay Act burden of proof lies with the employer. See Long v. Sears and arise from the facts of the instant litigation. Roebuck & Co., 105 F.3d 1529, 1539 (3d Cir. 1997). Case 4:16-cv-00469-MWB Document 52-2 Filed 07/05/17 Page 9 of 9Page 9 of 9 2015 U.S. Dist. LEXIS 7213, *28

3. The parties shall file the modified agreement for the court's final review and approval on or before February 6, [*29] 2015.

/s/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

End of Document Case 4:16-cv-00469-MWB Document 52-3 Filed 07/05/17 Page 1 of 4

Positive As of: July 5, 2017 1:43 PM Z

Brown v. Trueblue, Inc.

United States District Court for the Middle District of Pennsylvania November 5, 2013, Decided; November 5, 2013, Filed No. 1:10-cv-00514

Reporter 2013 U.S. Dist. LEXIS 158476 *; 2013 WL 5947499 Court on March 7, 2010. (Doc. No. 1.) In their complaint, STEPHEN BROWN, JR. et al., Plaintiffs v. TRUEBLUE, Plaintiffs alleged that Defendants TrueBlue and Labor INC., et al., Defendants Ready Northeast's wage policies resulted in Plaintiffs Prior History: Brown v. Trueblue, Inc., 2011 U.S. Dist. being paid less than [*2] minimum wage, and thus LEXIS 134523 (M.D. Pa., Nov. 22, 2011) violated the Fair Labor Standards Act (FLSA) and Pennsylvania Wage and Hour Laws (PWHL). (Doc. No. Counsel: [*1] For Stephen Brown, Jr., Matthew Jury, 1 ¶ 1.) Following extensive discovery, the parties Individually and on Behalf of all Others Similarly proceeded to arbitration and reached a proposed Situated, Plaintiffs: Craig P. Kalinoski, LEAD settlement of Plaintiffs' claims. (Doc. No. 109.) Plaintiffs ATTORNEY, Law Office of Craig P. Kalinoski, Scranton, filed an unopposed motion for approval on May 16, PA; Jason T. Brown, Shelly Leonard, Steven Blau, 2013, and submitted a copy of their proposed settlement LEAD ATTORNEYS, Blau, Brown & Leonard LLC, New agreement on July 25, 2013. (Doc. Nos. 112, 114-1.) York, NY. On September 24, 2013, the Court approved the For Trueblue, Inc., f/k/a Labor Ready, Inc., Labor Ready proposed settlement agreement in part, and requested Northeast, Inc., Defendants: Amelia D. Winchester, that the parties submit evidence supporting their David R. Ongaro, LEAD ATTORNEYS, Ongaro Burtt proposed award of attorneys' fees. (Doc. No. 115.) LLP, San Francisco, CA; Justin G. Weber, LEAD Plaintiffs timely filed an amended application for their ATTORNEY, Pepper Hamilton LLP, Harrisburg, PA; requested fees, and a memorandum in support. (Doc. Kyann C. Kalin, LEAD ATTORNEY, Thompson & Knight No. 116.) LLP, San Francisco, CA. II. DISCUSSION Judges: Yvette Kane, United States District Judge. Pursuant to the Fair Labor Standards Act, the Court is Opinion by: Yvette Kane authorized to award "a reasonable attorney's fee to be paid by the defendant, and costs of the action," in Opinion addition to any judgment awarded to the plaintiffs. 29 U.S.C. § 216(b). To arrive at a "reasonable attorneys' fee award," courts generally uses the lodestar method in FLSA cases to calculate the attorneys' fee award. MEMORANDUM Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001). [*3] Calculating the lodestar requires Plaintiffs move the Court to approve its proposed award multiplying the number of hours reasonably expended of attorneys' fees in the above-captioned action brought on the case by a reasonable hourly rate. Maldonado v. under the Fair Labor Standards Act. (Doc. No. 111.) Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). Because Plaintiffs' motion is unopposed. For the reasons that the language of the FLSA contemplates that the plaintiff- follow, the Court will grant Plaintiffs' motion. employee should receive his full wages, plus penalty, without incurring any expense for legal fees or costs, the I. BACKGROUND FLSA requires the Court to evaluate the reasonableness Plaintiffs filed the above-captioned class action in this of counsel's legal fees to assure both that counsel is adequately compensated and no conflict of interest Case 4:16-cv-00469-MWB Document 52-3 Filed 07/05/17 Page 2 of 4Page 2 of 4 2013 U.S. Dist. LEXIS 158476, *3 taints the amount the wronged employee recovers expended on arbitration, drafting, review, and receipt of under the settlement agreement. Poulin v. Gen. correspondence and emails, and, time spent preparing Dynamics Shared Res., Inc., No. 09-58, 2010 U.S. Dist. the supporting papers and exhibits for its application for LEXIS 47511, 2010 WL 1813497, at *1 (W.D.Va. May 5, settlement approval and attorneys' fees. (Doc. No. 116- 2010). 1 ¶ 9.) Thus, the Court will approve the number of hours submitted by Plaintiff. Plaintiffs' attorneys contend that they spent 403.35 hours working on this case, resulting in a lodestar B. Hourly rates amount of $171,472.50. (Doc. No. 116 at 12.) The fees break down as follows: The reasonable hourly rate is calculated "according to the prevailing market rates in the community." Smith v. Go to table1 Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). When determining the proper hourly rate, the Court Plaintiffs' counsel submitted a request for attorneys' fees must consider prevailing market rates and the skill and in the amount of $65,000.00, which counsel [*4] argues experience of the prevailing parties' attorneys. Id. The is reasonable given the facts of the case and the fact party seeking attorneys' fees [*6] bears the burden of that it represents only thirty-eight percent of the total producing sufficient evidence of what constitutes a lodestar amount. See Wash. v. Phila. Cnty. Court of reasonable market rate. If a party fails to meet that Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) burden, the district court may exercise its discretion in ("The lodestar is strongly presumed to yield a fixing a reasonable hourly rate. Phila. Cnty. Court of reasonable fee."). The Court will first examine whether Common Pleas, 89 F.3d at 1036. However, the district the number of hours expended on this litigation was court cannot "decrease a fee award based on factors reasonable, and then proceed to whether the hourly not raised at all by the adverse party." Rode v. rates are reasonable. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

A. Reasonable hours The Court finds that the following hourly rates: $450 per hour for Steven Blau (27 years of experience); $375 per To determine the number of hours used in calculating hour for Shelly Leonard (14 years of experience); and the lodestar, courts must exclude hours that are $375 per hour for Jason Brown (16 years of "excessive, redundant, or otherwise unnecessary." experience), are consistent with the prevailing rates McKenna v. City of Phila., 582 F.3d 447, 455 (3d Cir. charged in this locality for legal services in the area of 2009). Despite the calculated lodestar amount, the court employment law by attorneys with similar qualifications has "discretion in determining the amount of a fee and skills. (Doc. No. 116 at 12.) Instructive is the current award." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Community Legal Services recommended hourly fee Ct. 1933, 76 L. Ed. 2d 40 (1983). This discretion schedule for attorneys working in the Philadelphia area. extends to an independent review of the requested fees (Doc. No. 116-3.) The Court finds that Plaintiffs' to determine if they were reasonably incurred: "[t]he suggested hourly rates are generally in line with the district court should exclude from this initial fee range of hourly rates established by Community Legal calculation hours that were not reasonably expended." Services, although the rates charged by Shelly Leonard Id. at 434. However, the court may not sua sponte [*7] and Jason Brown each exceed the recommended reduce a fee award. Bell v. United Princeton Props., rate by a small amount. Accordingly, the Court will Inc., 884 F.2d 713, 719 (3d Cir. 1989). approve the hourly rate used by Plaintiffs' counsel in calculating the lodestar. See Maldonado, 256 F.3d at On [*5] reviewing the parties' records, the Court finds 187-88. that the hours expended in this matter are reasonable. Plaintiffs' counsel submitted contemporaneous and III. CONCLUSION standardized time records that identify the general subject matter of each time expenditure. The Court finds The Court will approve the proposed attorneys' fee that the hours cover the preparation of pleadings, award of $65,000, which represents thirty-eight percent motions, discovery responses, depositions, and hearing, of the amount yielded by the lodestar. Having reviewed and are not excessive, redundant, or otherwise counsel's contemporaneous time records (Doc. No. 116- unnecessary. (Doc. No. 116-1 ¶ 8.) The Court also 2), Attorney Stephen Blau's affidavit (Doc. No. 116-1), notes that counsel omitted from consideration any hours and the Community Legal Services recommended fee Case 4:16-cv-00469-MWB Document 52-3 Filed 07/05/17 Page 3 of 4Page 3 of 4 2013 U.S. Dist. LEXIS 158476, *7 schedule (Doc. No. 116-3), the Court finds that Plaintiffs' requested attorneys' fees in the amount of $65,000.00 is reasonable and therefore merits approval. An order consistent with this memorandum follows.

ORDER

AND NOW, on this 5th day of November 2013, IT IS HEREBY ORDERED THAT Plaintiffs' proposed award of attorneys' fees in the amount of $65,000.00 is APPROVED. (Doc. No. 114-2 ¶ 2(c)). The Clerk of Court is directed to close the case.

/s/ Yvette Kane

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania Case 4:16-cv-00469-MWB Document 52-3 Filed 07/05/17 Page 4 of 4Page 4 of 4 2013 U.S. Dist. LEXIS 158476, *7

Table1 (Return to related document text) 1. Steven Bennet Blau: 269.55 hours at $450.00 per hour $121,297.50 2. Shelly A. Leonard: 55.80 hours at $375.00 per hour $20, 925.00 3. Jason T. Brown: 78.00 hours at $375.00 per hour $29,250.00 Totals: 403.35 hours $171,472.50. Table1 (Return to related document text)

End of Document Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 1 of 7 Page 1

1 of 1 DOCUMENT

DOUGLAS CREED, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. BENCO DENTAL SUPPLY CO., Defendant.

3:12-CV-01571

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2013 U.S. Dist. LEXIS 132911

September 17, 2013, Filed

PRIOR HISTORY: Creed v. Benco Dental Supply Co., Settlement Approval (Doc. 81). In this class action 2012 U.S. Dist. LEXIS 178553 (M.D. Pa., Dec. 18, 2012) lawsuit, the Named Plaintiff, on behalf of a class that currently consists of 67 service technicians and others COUNSEL: [*1] For Douglas Creed, on behalf of similarly situated who worked at Benco Dental Supply himself and all others similarly situated, Plaintiff: Rowdy Company within the past three years, filed suit under the B. Meeks, LEAD ATTORNEY, Rowdy Meeks Legal Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). Group LLC, Kansas City, KS; Scott M. Pollins, Media, (See Mem. in Supp. of the Parties' Confidential Mot. for PA. Settlement Approval, Doc. 82, at 1-2.) Plaintiffs Complaint alleged that the technicians were denied For Benco Dental Supply Company, Defendant: Jacob M. overtime pay under their employment agreements in Theis, LEAD ATTORNEY, Buchanan Ingersoll & violation of the FLSA. (Compl., Doc. 1, at ¶¶ [*2] Rooney, P.C., Harrisburg, PA; Christian C. Antkowiak, 39-48.) Following class certification, the parties settled George Basara, Buchanan Ingersoll & Rooney PC, for a fund of $1 million, of which $333,333.00 is Pittsburgh, PA; Mary D. Walsh Dempsey, Ufberg & allocated to payment of attorneys' fees, $17,451.50 for Associates, LLP, Scranton, PA. payment of attorneys' other expenses, $30,019 is used to administer the settlement, and $15,000 goes to the Named JUDGES: Robert D. Mariani, United States District Plaintiff as an incentive award. (See Mem. in Supp. of the Judge. Parties' Confidential Mot. for Settlement Approval, Ex. 1, Settlement Agreement, at 5, 7, 9 (hereinafter "Settlement OPINION BY: Robert D. Mariani Agreement").) As stated by class counsel, the settlement fund will result in a gross average recovery of OPINION approximately $2,500 per class member, which will amount to approximately $1,600 after deducting fees and expenses. (Unofficial Tr., Sept. 5, 2013, 4:13-15.) Only MEMORANDUM OPINION those service technicians who affirmatively opt in to the I. Procedural History lawsuit will be bound by the settlement; all others retain full rights to bring their own claims later. (See Settlement Presently before the Court is a Sealed Motion for Agreement at 11.) Any portion of the settlement fund that Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 2 of 7 Page 2 2013 U.S. Dist. LEXIS 132911, *2

is left over after all class compensation, fees, and whether Benco in fact paid overtime compensation in expenses have been paid will revert back to Benco. (Id.) compliance with the FLSA. Settlement was only reached after approximately ten months of litigation, in which For the reasons discussed below, the Court finds that both parties were zealously represented. Therefore, and in the settlement is a fair and reasonable resolution of a the absence of any evidence to the contrary, the Court bona fide dispute between [*3] the parties. Therefore, the concludes that the settlement does indeed reflect a Court will approve the settlement in its totality. compromise of bona fide disputed issues which, as discussed below, is fair and reasonable to both parties. II. Approval of Settlement in General b. Fair and Reasonable Resolution When employees bring a private action [I]n assessing the fairness and under the FLSA, and present to the district reasonableness of an agreement settling a court a proposed settlement pursuant to FLSA collective action, . . . district courts that Act's § 216(b), the district court may in this circuit have applied the factors set enter a stipulated judgment if it determines forth in Girsh v. Jepson, 521 F.2d 153 (3d that the compromise reached is a "fair and Cir. 1975), [*5] for approving class action reasonable resolution of a bona fide settlements under Rule 23 of the Federal dispute over FLSA provisions." Rules of Civil Procedure.

Brumley v. Camin Cargo Control, Inc., 2012 U.S. Altenbach, 2013 U.S. Dist. LEXIS 1252, 2013 WL Dist. LEXIS 40599, 2012 WL 1019337, at *2 (D. N.J. 74251, at *2. 2012) (citing Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1354 (11th Cir. 1982)). District courts in The Girsh factors are: the Third Circuit typically look to the considerations set forth in Lynn's Food when deciding whether to approve a (1) the complexity, expense and likely FLSA settlement. Altenbach v. Lube Center, Inc., 2013 duration of the litigation; (2) the reaction U.S. Dist. LEXIS 1252, 2013 WL 74251, at *1 (M.D. Pa. of the class to the settlement; (3) the stage 2013). of the proceedings and the amount of discovery completed; (4) the risks of a. Bona Fide Dispute establishing liability; (5) the risks of establishing damages; (6) the risks of A dispute is "bona fide" when it involves "factual maintaining the class action through the issues" rather than "legal issues such as the statute's trial; (7) the ability of the defendants to coverage and applicability," Lignore v. Hosp. of Univ. of withstand a greater judgment; (8) the Pa., 2007 U.S. Dist. LEXIS 32169, 2007 WL 1300733, at range of reasonableness of the settlement *3 (E.D. Pa. 2007) (quoting Morris v. Penn Mut. Life Ins. fund in light of the best possible recovery; Co., 1989 U.S. Dist. LEXIS 1690, 1989 WL 14063, at *4 and (9) the range of reasonableness of the (E.D. Pa. 1989)), and when its settlement "reflects a settlement fund to a possible recovery in reasonable compromise of disputed [*4] issues rather light of all the attendant risks of litigation. than a mere waiver of statutory rights brought about by an employer's overreaching," Brumley, 2012 U.S. Dist. Girsh, 521 F.2d at 157. As the Court will now discuss, all LEXIS 40599, 2012 WL 1019337, at *2 (quoting Lynn's of the applicable Girsh factors weigh in favor of Food, 679 F.2d at 1354). settlement approval.

The dispute at issue here is clearly bona fide. Only 1. Complexity, Expense, and Likely Duration of after extensive and contested motion practice, (see Docs. Litigation 21-22, 26-29, 32, 34-37, 39), was this class conditionally certified, (see Doc. 46 (certification order).) The disputes The litigation in this case would be very complex. at issue are factual, not legal, ones. They include issues The case involves "Belo agreements," a little-used type of such as the composition and definition of the class and employment contract wherein the Benco service Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 3 of 7 Page 3 2013 U.S. Dist. LEXIS 132911, *5

technicians would agree to a flat amount of pay, a great amount of information to the Plaintiffs for regardless of the number of [*6] hours worked, for all purposes of class identification. (See Doc. 40.) work up to sixty hours per week. (See Unofficial Tr. at Accordingly, [*8] both parties have had more than 5:7-11.) Because Belo agreements are rarely used, the adequate opportunity to understand the strengths and central issue in this case--whether the agreements were weaknesses of their cases and come to an informed correctly administered to provide for proper overtime resolution. Therefore, this factor also weighs in favor of pay--would be difficult to address and would require a settlement approval. significant amount of motion practice, extensive discovery, and would ultimately culminate in a jury trial. 4. Risks of Establishing Liability Of course, these undertakings would be both expensive and time-consuming. Even after ten months of litigation, As discussed above, Belo agreements are both this case only settled at the class certification stage. On a complicated and little-used. Because they are so time schedule like that, it is not at all unreasonable to little-used, the case law on them is sparse, and is assume that any trial would wait years to commence. therefore unclear as to Benco's liability. By having to litigate in a legal grey area, Plaintiffs would incur 2. Reaction of the Class to Settlement substantial risks, both in a jury trial and on appeal, of an unfavorable outcome. Thus far, 67 members of the class have opted into the class and none of them have objected to the settlement. 5. Risks of Establishing Damages (See Mem. in Supp. of the Parties' Confidential Mot. for Settlement Approval at 2, 6.) For the same reasons, in the absence of settlement, Plaintiffs run a great risk of not being able to establish Moreover, the notice to class members contains and collect damages. Given that liability is hard to prove, representations that class members will not be retaliated it follows that damages, which can only be assessed after against for opting in to the settlement. (See Joint establishing liability, will pose proof problems of its own. Submission of Revised Class Member Notice of Parties' FLSA Settlement Filed Under Seal, Ex. 1, Doc. 87-1, at 6. Risk of Maintaining Class Status Through Trial 2.) The parties [*7] have also amended their settlement "There will always be a 'risk' or possibility of agreement to explicitly guarantee that Benco will not decertification, and consequently the court can always retaliate against class members. (See Doc. 92 (addendum claim this factor weighs in favor of settlement." In re to class action settlement).) Class Counsel Rowdy Meeks Prudential Ins. Co. Am. Sales Practice Litig. Agent believes that this protection from retaliation will drive up Actions, 148 F.3d 283, 321 (3d Cir. 1998). [*9] Such is participation in the class. (See Unofficial Tr. at 7:5-9.) certainly true here: the Benco case has no greater or lesser Previously, he had gotten "calls from a lot of these risk of decertification than any other class action. service techs that were concerned about opting in because Nonetheless, because decertification is always possible, they thought it might be a black mark against them." (Id. this factor weighs slightly in favor of settlement. at 7:1-3.) Now that this obstacle has been removed, it is reasonable to believe that previously hesitant class 7. Defendant's Ability to Withstand a Greater members will opt in, thereby demonstrating their Judgment satisfaction with the settlement. And, as previously noted, those who do not opt in will not be bound by the Even if found liable, Benco would only be obligated settlement. (See Settlement Agreement at 11.) to compensate its employees for the amount of overtime Accordingly, this factor weighs in favor of settlement pay that it owes based on the hours they actually worked. approval. This creates a legal cap on liability. Counsel have represented to the Court that the settlement comes to 3. Stage of the Proceedings and Amount of Discovery close to the full extent of Benco's legal liability. (See Completed Unofficial Tr. at 10:5-7, 21-25.) Therefore, this factor does not apply: even if Benco could afford to pay more, it As discussed above, this case has proceeded through could have no legal obligation to do so. extensive motion practice, as well as a full day of mediation. The Court has also ordered Benco to turn over 8. Range of Reasonableness of Settlement Fund in Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 4 of 7 Page 4 2013 U.S. Dist. LEXIS 132911, *9

Light of Best Possible Recovery Such a result is consistent with the purpose of the FLSA, which is meant to protect workers from employment When discussing the best possible recovery, counsel agreements that may not work out in their best interests for the Plaintiffs described the settlement as "70, 75 but that, because of lack of bargaining power, they have percent of our best case scenario." (Id. at 10:5-7.) no choice but to accept. See 29 U.S.C. § 202 Counsel for the Defendant agreed with this statement, (congressional finding and declaration of policy); and with the Court's characterization of the settlement as Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706, 65 S. being "on the high side of full liability." (Id. at 10:11-25.) Ct. 895, 89 L. Ed. 1296 (1945) ("The statute was a Settling for close [*10] to the amount of full liability recognition of the fact that due to the unequal bargaining represents a respectable victory for the class members [*12] power as between employer and employee, certain and therefore favors approval of settlement. Moreover, segments of the population required federal compulsory because the settlement is not binding on members of the legislation to prevent private contracts on their part which class who have not opted in, other members who believe endangered national health and efficiency . . . ."). that a better recovery is possible remain free to pursue a claim on their own. III. Attorney's Fees

9. Range of Reasonableness of Settlement Fund in One-third of the settlement (or $333,333.00) will go Light of All Attendant Risks of Litigation to the Class Counsel in attorney's fees. (Settlement Agreement at 7.) This "percentage-of-recovery method is This final factor weighs in favor of approval for all generally favored in common fund cases because it the reasons discussed above. Plaintiffs brought a claim in allows courts to award fees from the fund in a manner a complex and little-litigated area of the law, where that rewards counsel for success and penalizes it for prospects of victory at a jury trial and on appeal remained failure.'" In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, unclear, and still managed to settle at an amount close to 300 (3d Cir. 2005) (quoting Prudential, 148 F.3d at 333). the limits of Defendant's liability. Given the many risks of litigation--including all the imponderable twists and The Third Circuit has held that "a district court turns that might not become apparent until months or should consider seven factors when analyzing a fee award years into the case--this settlement represents a more than in a common fund case." Id. at 301. These factors are: reasonable outcome for the Plaintiffs. (1) the size of the fund created and the c. Settlement Does Not "Impermissibly Frustrate" the number of persons benefitted; (2) the Implementation of FLSA in the Workplace presence or absence of substantial objections by members of the class to the Finally, having decided that the settlement is fair and settlement terms and/or fees requested by reasonable, the Court must determine whether the counsel; (3) the skill and efficiency of the settlement would "impermissibly [*11] frustrate[] the attorneys involved; (4) the complexity and implementation of FLSA in the workplace." Altenbach, duration of the litigation; (5) the risk of 2013 U.S. Dist. LEXIS 1252, 2013 WL 74251, at *1. nonpayment; (6) the amount of time Far from frustrating FLSA, the settlement actually devoted [*13] to the case by plaintiffs' furthers it. The parties represent that Benco no longer counsel; and (7) the awards in similar pays its employees based on the old Belo agreements, but cases. instead pays them based on a standard hourly basis, where they are paid solely for hours worked and receive Id. (citing Gunter v. Ridgewood Energy Corp., 223 F.3d time-and-a-half pay for overtime work. (Unofficial Tr. at 190, 195 n.1 (3d Cir. 2000)). "The factors listed above 5:7-16.) Though it is unclear exactly when the decision to need not be applied in a formulaic way. Each case is switch to the new method took place--and whether the different, and in certain cases, one factor may outweigh switch was entirely prompted by this lawsuit or just the rest." Gunter, 223 F.3d at 195 n.1. As discussed influenced by it, (see id. at 5:17-23)--the lawsuit has below, all factors weigh in favor of approval in the played at least some role in moving Benco employees present case. into a more standard and legally clearer payment scheme. 1. Size of the Fund and Number of Persons Benefitted Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 5 of 7 Page 5 2013 U.S. Dist. LEXIS 132911, *13

The settlement fund is $1 million. (Mem. in Supp. of the docket. Moreover, the risk that the case could last for the Parties' Confidential Mot. for Settlement Approval at many more years--and the risk that, even after all these 2.) Currently 67 people make up the class and 324 more years, it would not yield an outcome that makes counsel's are able to opt in. (Id. at 1.) Moreover, each class efforts worthwhile--is a substantial one. It is, furthermore, member's ultimate recovery is close to the upper limit a risk that class counsel assumed when he took this case that Benco was legally obligated to pay, which means and which he deserves compensation for assuming. that the settlement fund is a sufficient size to adequately Accordingly, this factor also weighs in favor of approval. compensate all class members who opt in to it. 5. Risk of Nonpayment But additionally, the settlement benefits even those class members who do not opt in to it. This lawsuit was a Because this case involves an unclear and complex factor in pushing Benco to abandon its old Belo area of the law, the risk of nonpayment is relatively high. agreements and to compensate its employees on an Class counsel represents that he undertook this case on a hourly basis. (Unofficial Tr. at 5:7-23.) To the extent that contingency-fee basis, (see Mem, in Supp. of the Parties' Belo agreements--even [*14] if properly utilized--are Confidential Mot. for Settlement Approval, Ex. 2, Decl. complex and difficult to understand, this represents a of Rowdy Meeks, Esq., ¶ 4 (hereinafter "Meeks Decl.")), victory for all of Benco's service technicians. meaning that if Plaintiffs received an unfavorable jury verdict or had a verdict overturned on [*16] appeal, 2. Absence of Substantial Objections by Members of counsel could have invested a significant amount of time the Class and energy in the case for little or no reward. A fee of one-third of the settlement is appropriate to compensate The Court has already discussed the facts that (1) no counsel for risks he took to secure significant benefits for class members have objected to any part of the the class. settlement, which includes attorney's fees, and (2) class members who do not opt in will not be bound by the 6. Amount of Time Devoted to the Case by Plaintiffs' settlement, and therefore would not be prejudiced by the Counsel agreed-upon attorney's fees, even if they were to view them as excessive. Accordingly, this factor weighs in Class counsel represents that his office has spent favor of approval. 350.9 hours working on the case. (Id.) While this results in a high hourly rate of compensation, this factor does not 3. Skill and Efficiency of the Attorneys Involved militate against settlement given the risks that counsel incurred when accepting this case, as discussed above. Considering the potential for this case to turn into a multi-year litigation, class counsel has done a good job of Moreover, simply judging the attorney's settlement negotiating a quick settlement that more than adequately award by the amount of hours that class counsel worked compensates the class. This indicates that class counsel is overlooks the fact that the class itself has an interest in in fact both skilled and efficient. He has navigated an speedy litigation. Even if settlement had been effected six unclear area of law to produce an award for the class that months after the time at which it actually was effected, it comes close to the full extent of Benco's liability and that is unlikely that the class members would have received a led to the creation of better employment contracts for all greater recovery, whereas counsel's expenses and time of Benco's service technicians, whether they opt into the expended would only have increased. This would allow a class or not. Accordingly, this factor weighs [*15] in calculation producing a lower hourly rate for counsel, but favor of approval. it would not confer any additional benefit on the class. Counsel should therefore not be penalized [*17] for 4. Complexity and Duration of the Litigation settling early--when the ratio of attorney's award to time spent is relatively high--if delaying settlement would As discussed above, this case involves a complicated lower his hourly rate but would not result in gains to the area of law. Though the case settled after only ten months class that counsel serves. of litigation, it had the potential to go on for many years. Even the ten months that the case did last were hard 7. Awards in Similar Cases fought, as evidenced by the extensive motion practice in Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 6 of 7 Page 6 2013 U.S. Dist. LEXIS 132911, *17

Finally, an award of one-third of the settlement is counsel in achieving a successful resolution, consistent with similar settlements throughout the Third together with the Third Circuit's seven-factor test, Circuit. See Martin v. Foster Wheeler Energy Corp., laid out above. 2008 U.S. Dist. LEXIS 25712, 2008 WL 906472, at *5 (M.D. Pa. 2008) (collecting cases). Therefore, this factor IV. Incentive Payment to the Named Plaintiff also weighs in favor of approval. Finally, the Named Plaintiff, Douglas Creed, seeks 8. Lodestar Cross-Check an incentive payment of $15,000.

Even after analyzing the above factors, the Third Factors to consider when assessing Circuit suggests that "it is 'sensible' for district courts to incentive awards are: (a) the risk to the 'cross-check' the percentage fee award against the plaintiff in commencing suit, both lodestar' method." In re Rite Aid, 396 F.3d at 305 (citing financially and otherwise; (b) the notoriety Prudential, 148 F.3d at 333). "The crosscheck is and/or personal difficulties encountered by performed by dividing the proposed fee award by the the representative plaintiff; (c) the extent lodestar calculation, resulting in a lodestar multiplier." In of the plaintiffs personal involvement in re AT&T Corp. Secs. Litig., 455 F.3d 160, 164 (3d Cir. the suit in terms of discovery 2006). Lead attorney for the class Rowdy Meeks testifies responsibilities and/or testimony at to a lodestar billing rate of $625.00 per hour for himself depositions or trial; (d) the duration of the and $175.00 per hour for his paralegal. (Meeks Decl. at ¶ litigation; and (e) the plaintiffs personal 4.) Attorney Meeks worked 311.7 hours on this case and benefit (or lack thereof) purely in his Paralegal [*18] Judy Hayman worked 39.2 hours. (Id.) capacity as a member of the class. This would amount to a total bill of $201, 672.50, meaning that the settlement agreement gives counsel 1.65 Godshall v. Franklin Mint Co., 2004 U.S. Dist. LEXIS times the lodestar amount. 23976, 2004 WL 2745890, at *6 (E.D. Pa. 2004) (citing In re Plastic Tableware Antitrust Litig., 1995 U.S. Dist. However, given the nature, complexity, and potential LEXIS 18166, 1995 WL 723175, at *2 (E.D. Pa. 1995)). duration of this case, the Court does not believe that a This is not a formal test, but merely represents some of 1.65 multiplier is unreasonable. Nor does it believe that, "the reasons courts cite for approving [*20] such under the facts of this case, $625 per hour for an attorney awards." In re U.S. Bioscience Sec. Litig., 155 F.R.D. of Mr. Meeks's skill and experience or $175 per hour for 116, 121 (E.D. Pa. 1994). a paralegal associated with him is an unreasonable lodestar, for the reasons discussed above. Therefore, the Here, the Court does not know to what extent Mr. Court finds that the attorney's fees portion of the Creed was personally involved in the suit, aside from settlement agreement passes the lodestar cross-check. 1 Attorney Meeks's vague statements that Creed did provide assistance. (See Mem. in Supp. of the Parties' 1 The Court's approval of attorney's fees based Confidential Mot. for Settlement Approval at 15.) on the unique facts of this case should not be Nonetheless, Mr. Creed took on personal risk in bringing understood as the expression of an opinion that a this case and deserves compensation for that. Even motion for attorney's fees premised on an hourly though Benco ultimately agreed not to retaliate against rate of $625 for an attorney or $175 for a class members, Mr. Creed could not have been sure of paralegal, either by way of fee agreement or that when he brought the case. As Attorney Meeks noted lodestar calculation, will always be deemed before the Court, the dental supply industry is dominated reasonable or will always be approved by this by only a few companies, so that there would exist the Court. In every case where the filing of a motion potential for Mr. Creed to be excluded from employment for attorney's fees is authorized, whether the case across the entire industry if the action did not go as he is brought on behalf of an individual or is one planned. (See Unofficial Tr. at 6:23-7:4.) Moreover, Mr. where [*19] class certification is granted, each Creed took these risks for what would only be at most a such request for attorney's fees must be evaluated couple thousand dollar recovery if he were to be treated in light of the nature, complexity, and duration of the same as all the unnamed class members. Clearly, such the case and the time and effort expended by Case 4:16-cv-00469-MWB Document 52-4 Filed 07/05/17 Page 7 of 7 Page 7 2013 U.S. Dist. LEXIS 132911, *20

would not be adequate compensation. separate Order follows.

Accordingly, the Court shall approve the incentive /s/ Robert D. Mariani payment to Douglas Creed. Robert D. Mariani V. Conclusion United States District Judge For the reasons [*21] discussed above, the Motion to Approve the Settlement (Doc. 81) is GRANTED. A Case 4:16-cv-00469-MWB Document 52-5 Filed 07/05/17 Page 1 of 5

Cited As of: July 3, 2017 6:39 PM Z

DiClemente v. Adams Outdoor Adver., Inc.

United States District Court for the Middle District of Pennsylvania July 7, 2016, Decided; July 8, 2016, Filed CIVIL ACTION NO. 3:15-0596

Reporter 2016 U.S. Dist. LEXIS 88394 * system. As such, plaintiff and other hourly employees JOSEPH DiCLEMENTE, et al., Plaintiffs v. ADAMS receive no compensation for time spent riding lights OUTDOOR ADVERTISING, INC., Defendant despite the fact that this time is generally performed in addition to their regular 40-hour workweek. Plaintiff Counsel: [*1] For Joseph Diclemente, Plaintiff: Mark J. Gottesfeld, Peter D. Winebrake, R. Andrew Santillo, claims that defendant's practices have caused him and other hourly employees to work many overtime hours LEAD ATTORNEYS, Winebrake & Santillo, LLC, without compensation in violation of the Fair Labor Dresher, PA. Standards Act mandates. Plaintiff has sued defendant For Adams Outdoor Advertising, Inc., Defendant: Patrick under the Fair Labor Standards Act and the J. Reilly, Gross, McGinley, LaBarre & Eaton, LLP, Pennsylvania Minimum Wage Act, on behalf of himself Allentown, PA. and other hourly employees. The parties now seek court approval of their settlement. Judges: MALACHY E. MANNION, United States District Judge. I. BACKGROUND

Opinion by: MALACHY E. MANNION Plaintiff contends that he and the other hourly employees are owed overtime for any hours worked in Opinion excess of forty hours per week, as mandated by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§201, et seq., and the Pennsylvania Minimum Wage Act ("PMWA"), 43 P.S. §§333.101, et seq. Plaintiff brought MEMORANDUM suit against defendant on March 24, 2015, (Doc. 1), bringing a claim for violations of the FLSA's overtime Plaintiff Joseph DiClemente is an employee of provision, 29 U.S.C. §207(a)(1), and a claim for defendant Adams Outdoor Advertising, Inc., a company violations of the PMWA's overtime provision, 43 P.S. that owns and rents billboards and other outdoor §333.104(c). The FLSA claim was brought as a advertising space, and is paid an hourly wage. He is collective action [*3] pursuant to 29 U.S.C. §216(b). The classified as non-exempt from overtime pay PMWA actions was brought as a class action pursuant requirements. Plaintiff often works over 40 hours per to Fed.R.Civ.P. 23. Plaintiff filed a motion for an week and he reports his hours on defendant's electronic extension of time for the class certification deadline, timekeeping system. When plaintiff works over 40 hours (Doc. 9), and it was granted by the court and postponed per week, defendant adjusts his time entries downward until a later date to be determined. (Doc. 12). The so that he is paid for working only 40 or fewer hours per parties later stipulated that all individuals who, during week. This practice by defendant occurs for its other any workweek since March 24, 2012, were employed by employees who are paid hourly wages. Additionally, defendant in Pennsylvania and paid, in whole or in part, defendant requires plaintiff and other hourly employees on an hourly basis were conditionally certified as a to drive to area billboards during the evening to report collective pursuant to 29 U.S.C. §216(b). The court whether any lights need replacement, so-called "riding approved of the stipulation. (Doc. 18). Plaintiff withdrew lights." However, plaintiff and other hourly employees the Rule 23 class action claim, but the parties are not [*2] allowed to report the time spent riding lights acknowledged that plaintiffs who opt into the collective as hours they worked in defendant's timekeeping Case 4:16-cv-00469-MWB Document 52-5 Filed 07/05/17 Page 2 of 5Page 2 of 5 2016 U.S. Dist. LEXIS 88394, *3 action join the action for both the FLSA and PMWA state statute substantially parallels it." (Id.). claims. (Id.). In addition to the original plaintiff, five other hourly employees opted in to the collective action. As Plaintiffs move for court approval of their proposed such, there are six plaintiffs in this case. settlement agreement as well as their proposed award of attorneys' fees. Defendant has concurred in plaintiffs' On June 6, 2016, plaintiffs filed an unopposed motion motion. The court will now discuss the proposed for approval of collective action settlement with a copy settlement agreement and the award of attorneys' fees of the proposed settlement agreement. (Doc. 28). and costs. Plaintiffs filed their brief in support on June 13, 2016. (Doc. 29). "Once employees present a proposed settlement agreement to the district court pursuant to Section II. DISCUSSION 216(b), the Court may enter a stipulated judgment if it determines that the compromise 'is a fair and "In 1938, Congress enacted the FLSA to protect reasonable resolution of a bona fide dispute over FLSA covered workers [*4] from substandard wages and provisions.'" Brown v. TrueBlue, Inc., 2013 U.S. Dist. oppressive working hours." Friedrich v. U.S. Computer LEXIS 137349, 2013 WL 5408575, *1 (M.D.Pa. Sept. Servs., 974 F.2d 409, 412 (3d Cir. 1992) (citing 25, 2013) (citing Cuttic v. Crozer-Chester Medical Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. Center, 868 F.Supp.2d 464, 466 (E.D.Pa. 2012); see 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981). The also Adams v. Bayview Asset Mgmt., LLC, 11 Fair Labor Standards Act provides that: F.Supp.3d 474, 476 (E.D.Pa. 2014) (court indicated that "Except as otherwise provided in this section, no Department of Labor supervision or court approval are employer shall employ any of his employees who in the "only two ways that FLSA claims can be settled or any workweek is engaged in commerce or in the compromised by employees," "[b]ecause of the public production of goods for commerce, or is employed interest in FLSA rights"). in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek The Third Circuit has not specifically addressed the longer than forty hours unless such employee factors which the district court should consider when receives compensation for his employment in approving FLSA settlements. However, district courts excess of the hours above specified at a rate not within this Circuit have followed the Eleventh Circuit's less than one and one-half times the regular rate at decision in Lynn's Food Stores, Inc. v. United States, which he is employed." 679 F.2d 1350, 1354 (11th Cir.1982). See Kraus v. PA Fit II, LLC, 155 F. Supp. 3d 516, 2016 U.S. Dist. LEXIS 29 U.S.C. §207(a)(1). Thus, employers covered by the 3426, 2016 WL 125270, *4 (E.D.Pa. Jan. 11, 2016); FLSA must pay overtime compensation to employees Brown, 2016 U.S. Dist. LEXIS 3426, 2013 WL 5408575, who work for more than forty hours a week "unless one *1 (court applied the Lynn's Food standard). The court or another of certain exemptions applies." Packard v. stated in Lynn's Food, "[w]hen parties [*6] present to the Pittsburgh Transp. Cp., 418 F.3d 246, 250 (3d Cir. district court a proposed settlement, the district court 2005). may enter a stipulated judgment if it determines that the compromise reached 'is a fair and reasonable resolution The PMWA, like the FLSA, provides that employees of a bona fide dispute over FLSA provisions' rather than shall receive overtime wages of "not less than one and a 'a mere waiver of statutory rights brought about by an half times" their regular wage for any hours worked after employer's overreaching.'" Cuttic, 868 F.Supp.2d at 466 forty in a work week. 43 P.S. §333.104(c). Pennsylvania (quoting Lynn's Food, 679 F.2d at 1354). A bona fide courts have looked to federal law regarding the FLSA in dispute under the FLSA includes computation of back applying the PMWA. Baum v. Astrazeneca LP, 372 wages. See Lynn's Food, 679 F.2d at 1354.The court F.App'x 246, 248, n. 4 (3d Cir. 2010) (citing finds in the instant case that the proposed settlement Commonwealth of Pa. Dept. of Labor and Indus., agreement resolves a bona fide dispute. See Creed v. Bureau of Labor Law Compliance v. Stuber, 822 A.2d Benco Dental Supply Co., 2013 U.S. Dist. LEXIS 870, 873 (Pa.Commw. 2003), aff'd, 580 Pa. 66, 859 132911, 2013 WL 5276109, at *1 (M.D.Pa. Sept. 17, A.2d 1253 (2004) (applying "federal case law" regarding 2013) (court held that a dispute was bona fide if it the FLSA to a PMWA claim). The Pennsylvania courts involves "factual issues rather than legal issues such as have determined that "it is [*5] proper to give deference the statute's coverage and applicability."). to federal interpretation of a federal statute when the Case 4:16-cv-00469-MWB Document 52-5 Filed 07/05/17 Page 3 of 5Page 3 of 5 2016 U.S. Dist. LEXIS 88394, *6

"When determining whether a proposed settlement approval of the settlement"; Factor 3, "mediation agreement merits approval, the Court must first consider occurred after the close of discovery" and "the parties whether the agreement is fair and reasonable, and then had a clear understanding of the evidentiary record and proceed to determine whether it furthers or frustrates potential risks of proceeding to trial"; Factors 4-5, the implementation of the FLSA." Brown, 2016 U.S. defendant had the defense "that it did not have actual or Dist. LEXIS 3426, 2013 WL 5408575, *1 (citation constructive knowledge of Plaintiffs' alleged off-the-clock omitted). To determine whether an FLSA settlement work because it relied [on] the weekly excel agreement is fair and reasonable, "district courts have spreadsheets that Plaintiffs completed" and that "even if relied on the factors set out by the Third Circuit for Plaintiffs were able to defeat [defendant's] merits approving class action settlements pursuant to Federal defense, they still needed to prove their uncompensated Rule of Civil Procedure 23." Brown, 2016 U.S. Dist. overtime work hours based on a just and reasonable LEXIS 3426, 2013 WL 5408575, *2 (citing Girsh v. inference"; Factor 6, defendant states that this factor Jepson, 521 F.2d 153 (3d Cir. 1975)). The factors does not weigh in favor [*9] of settlement approval since specified by the Third Circuit in Girsh, 521 F.2d at 157- this case only concerns six plaintiffs and "the risk of 58, are: decertification is minimal compared to larger collectives in which decertification results in many members of the (1) the complexity, [*7] expense and likely duration collective choosing not to pursue their claims on an of the litigation; (2) the reaction of the class to the individual basis"; Factor 7, this factor is "a wash and settlement; (3) stage of the proceedings and the weighs neither in favor of nor against settlement" if the amount of discovery completed; (4) risks of settlement is otherwise fair and reasonable; Factors 8-9, establishing liability; (5) risk of establishing "plaintiffs' $23,750.00 recovery under the settlement damages; (6) risk of maintaining the class action represents slightly more than two-times the unpaid through the trial; (7) ability of the defendants to wages calculated in the Edit Audit Report Analysis" and withstand a greater judgment; (8) the range of if this case went to trial, "plaintiffs would have argued reasonableness of the settlement fund in light of the that the Edit Audit Report Analysis did not capture all of best possible recovery; and (9) the range of the off-the-clock work they performed." reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of Plaintiffs state that all but two of the Girsh factors weigh litigation. in favor of approval of the settlement agreement and that it represents "an excellent result for plaintiffs." Plaintiffs state that their proposed settlement agreement Based on the record and the Girsh factors, the court is fair and reasonable. It provides that defendant will pay finds that the proposed settlement agreement is fair and plaintiffs a total amount of $23,750.00, with each plaintiff reasonable. receiving the following specific amounts: Joseph DiClemente = $10,935.83; Jessica Giuricich Wills = Next, the court must consider whether the settlement $937.68; Nathan Bush = $3,014.74; Robert Vosper = agreement furthers or frustrates the implementation of $3,529.49; Aneta Lotrean = $2,815.62; and Karly Diehl the FLSA in the workplace. Section 4 of the settlement = $2,516.65. Each of the plaintiffs consented to their agreement contains [*10] a release which provides that respective payout amounts. The settlement agreement after defendant meets its payment obligations, plaintiffs also provides that plaintiffs' counsel will receive fees and release defendant from all legal or equitable claims costs of $23,750.00 from defendant. The settlement arising prior to April 19, 2016 and alleging unpaid wages agreement contains [*8] a release as well as a or overtime pay under the FLSA and the PMWA as well confidentiality provision. Once the court approves of the as under any other law. Proposed release provisions settlement agreement, the case will be dismissed with run contrary to the FLSA if they are overly broad and the prejudice. parameters of the FLSA claim waiver are unclear. Kraus, 2016 U.S. Dist. LEXIS 3426, 2016 WL 125270, In their brief in support of their motion, (Doc. 29, at 8- *12. The court finds that the release in the present 11), plaintiffs address the Girsh factors seriatim and agreement does not frustrate the implementation of the state: Factor 1, "absent settlement, both parties would FLSA in the workplace since it is sufficient limited in have been required to dedicate significant time and nature and its parameters are clear. resources to inter alia, filing pre-trial motions and preparing for the trial itself"; Factor 2, "[a]ll six Plaintiffs Section 7 of the settlement agreement contains a have signed the Agreement, ..., evidencing their confidentiality provision stating that plaintiffs agree that Case 4:16-cv-00469-MWB Document 52-5 Filed 07/05/17 Page 4 of 5Page 4 of 5 2016 U.S. Dist. LEXIS 88394, *10 they will not communicate or disclose the "terms of this n. 1 (3d Cir. 2000) (citations omitted). These factors do Agreement, or the circumstances leading up to this not have to be "applied in a formulaic way" and, "[e]ach Agreement, to any persons other than his/her spouse, case is different, and in certain cases, one factor may significant other, immediate family, attorney, accountant outweigh the rest." Id. and/or tax consultant, or as otherwise required by law." However, plaintiffs can disclose that this case has been In this case, plaintiffs' attorneys seek a fee, including resolved without referencing the terms of the costs, that is 50% of the $47,500 total settlement agreement. "There is 'broad consensus' that FLSA amount. Attached to plaintiffs' brief in support of their settlement agreements should not be kept confidential." motion, is the Declaration of R. Andrew Santillo, Esq., Brown, 2013 U.S. Dist. LEXIS 137349, 2013 WL who is personally familiar with the involvement of his law 5408575, *3 (citation [*11] omitted); Kraus, 2016 U.S. firm's representation of plaintiffs in this case, namely, Dist. LEXIS 3426, 2016 WL 125270, *12 (confidentiality Winebrake & Santillo, LLC ("W&S"). He avers that "[a]s clauses are "a common basis for a court's rejection of a of June 8, 2016, W&S has dedicated 103.1 hours to this proposed [FLSA] agreement."). The confidentiality litigation [*13] resulting in a total fee lodestar of provision in this case does not contain any sanctions $42,172.00 when utilizing the hourly rates described in and does not allow defendant to retaliate against the fee schedule developed by Philadelphia Community plaintiffs if they violate it. It also allows plaintiffs to Legal Services ("CLS") and used by that organization in disclose the fact that the case has ended as opposed to seeking attorney's fees in statutory fee-shifting." He then be dismissed based on failure to state cognizable specifies the hours worked on this case by each claims, implying that they had valid claims under the member of W&S and their fee based on their hourly FLSA. Thus, the confidentiality provision does not rate. Santillo also states that "W&S incurred a total of frustrate the implementation of the FLSA in the $4,184.37 in costs and expenses in connection with this workplace, in this case. litigation."

The FLSA also provides that the court "shall, in addition Based on its review of Santillo's Declaration and the to any judgment awarded to the plaintiff ... allow a Gunter factors, all of which weigh in favor of approving reasonable attorney's fee to be paid by the defendant, the proposed award, the court in its discretion shall and costs of the action." 29 U.S.C. §216(b). approve the requested attorneys' fees of $19,565.63 "Percentage of recovery is the prevailing method used and $4,184.37 in costs as provided in the settlement by courts in the Third Circuit for wage and hour cases." agreement. Kraus, 2016 U.S. Dist. LEXIS 3426, 2016 WL 125270, *13 (citation omitted). "The percentage-of-recovery III. CONCLUSION method awards a fixed portion of the settlement fund to For the above reasons, plaintiffs' motion for approval of counsel." Id. (citation omitted). "Courts have approved collective action settlement, (Doc. 28), is GRANTED. A attorneys' fees in FLSA [collective and class action] separate order shall issue. settlement agreements 'from roughly 20-45%' of the settlement fund." 2016 U.S. Dist. LEXIS 3426, [WL] at /s/ Malachy E. Mannion *14. (citation omitted).The factors [*12] which the court considers under the percentage-of-recovery method to MALACHY E. MANNION evaluate the award of attorneys' fees in common fund cases are: United States District Judge

(1) the size of the fund created and the number of Date: July 7, 2016 persons benefitted; (2) the presence or absence of substantial objections by members of the class to ORDER the settlement terms and/or fees requested by NOW, this 7th day of July, 2016, upon consideration of counsel; (3) the skill and efficiency of the attorneys Plaintiffs' "Unopposed Motion for Approval of Collective involved; (4) the complexity and duration of the Action Settlement" (Doc. 28), the accompanying litigation; (5) the risk of nonpayment; (6) the amount "Settlement Agreement and Release" [*14] of time devoted to the case by plaintiffs' counsel; ("Agreement") (Doc. 28-1), and all other papers and and (7) the awards in similar cases. proceedings herein, it is hereby ORDERED that the settlement of this collective action is APPROVED Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 because it represents a fair and reasonable settlement Case 4:16-cv-00469-MWB Document 52-5 Filed 07/05/17 Page 5 of 5Page 5 of 5 2016 U.S. Dist. LEXIS 88394, *14 of a bona fide dispute under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. This action is DISMISSED WITH PREJUDICE, although the Court will retain jurisdiction over any disputes pertaining to the enforcement of the settlement.

/s/ Malachy E. Mannion

Hon. Malachy E. Mannion

United States District Judge

End of Document Case 4:16-cv-00469-MWB Document 52-6 Filed 07/05/17 Page 1 of 5

Neutral As of: July 5, 2017 1:47 PM Z

Lightstyles, Ltd. v. Marvin Lumber & Cedar Co.

United States District Court for the Middle District of Pennsylvania July 6, 2015, Decided; July 6, 2015, Filed CIVIL NO. 1:13-CV-1510

Reporter 2015 U.S. Dist. LEXIS 87049 *

LIGHTSTYLES, LTD, by and through its bankruptcy Plaintiff, Leon P. Haller, as the trustee in bankruptcy for trustee, LEON P. HALLER, Plaintiff v. MARVIN LightStyles, LTD ("LightStyles"), filed this lawsuit LUMBER AND CEDAR COMPANY, d/b/a MARVIN alleging several causes of action based on the decision WINDOWS AND DOORS, Defendant v. ROBERT L. of defendant, Marvin Lumber and Cedar Company, SLAGLE, Third-party Defendant /d/b/a Marvin Windows and Doors ("Marvin"), to terminate its business relationship with LightStyles in Prior History: LightStyles, Ltd. v. Marvin Lumber & August 2011. Marvin counterclaimed [*2] against Cedar Co., 2014 U.S. Dist. LEXIS 69606 (M.D. Pa., May LightStyles for fraud in the inducement and named 21, 2014) Robert L. Slagle, LightStyles' principal, as a third-party defendant for fraud in the inducement. Marvin claims Counsel: [*1] For Lightstyles, LTD., a Pennsylvania that in January 2009 LightStyles and Slagle fraudulently Limited Liability Company, by and through its induced it to continue the business relationship by bankruptcy Trustee, Leon P. Haller, Plaintiff, misrepresenting LightStyles' financial condition. Counterclaim Defendant: John M. Ogden, LEAD ATTORNEY, Holt & Ogden, LLP, York, PA; Steven A We are considering Marvin's motion under Fed. R. Civ. Lamb, LEAD ATTORNEY, Douglas J. Rovens, Rovens P. 37(a)(5)(A) for an award of expenses, including Lamb, LLP, Manhattan Beach, CA. attorney's fees, after it prevailed on a motion to compel For Marvin Lumber And Cedar Company, D/B/A Marvin responses to two sets of Requests for Admission Windows And Doors, a Minnesota Corporation, (RFAs), one sent to LightStyles and the other to Slagle. Defendant, Counterclaim Plaintiff, Third Party Plaintiff: In ruling on the motion, we required LightStyles and Joseph M. Windler, Robert R. Weinstine, LEAD Slagle to file amended answers. See LightStyles, LTD v. ATTORNEYS, Craig S Krummen, Michael E. Marvin Lumber & Cedar Co., 2014 U.S. Dist. LEXIS Obermueller, Winthrop & Weinstine, P.A., Minneapolis, 169802, 2014 WL 6982918 (M.D. Pa. Dec. 9, 2014). MN; Christopher E. Fisher, Tucker Arensberg, PC, II. Relevant Law Lemoyne, PA. For Robert L. Slagle, Third Party Defendant: Douglas J. Marvin's motion to compel was made pursuant to Fed. Rovens, Rovens Lamb, LLP, Manhattan Beach, CA. R. Civ. P. 36(a)(6). That rule permits the requesting party to "move to determine the sufficiency of an answer Judges: William W. Caldwell, United States District or objection" to RFAs. Rule 36(a)(6) also allows for an Judge. award of expenses by way of Fed. R. Civ. P. 37(a)(5). In pertinent part, Rule 37(a)(5) provides: Opinion by: William W. Caldwell (5) Payment of Expenses; Protective Orders.

Opinion (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted . . . the court must, after giving an opportunity to be heard, require the party or MEMORANDUM deponent whose conduct necessitated the motion, [*3] the party or attorney advising that I. Introduction Case 4:16-cv-00469-MWB Document 52-6 Filed 07/05/17 Page 2 of 5Page 2 of 5 2015 U.S. Dist. LEXIS 87049, *3

conduct, or both to pay the movant's reasonable 169, 175 (M.D. Pa. 2002)(applying Fed. R. Civ. P. expenses incurred in making the motion, including 37(c)(1)). The moving party has the burden of showing attorney's fees. But the court must not order this that its claim for attorney's fees is reasonable. ASD payment if: Specialty Healthcare, Inc. v. New Life Home Care, Inc., . . . . No. 11-CV-0068, 2013 U.S. Dist. LEXIS 51442, 2013 (ii) the opposing party's nondisclosure, response, or WL 1482777, at *7 (M.D. Pa. April 10, 2013)(applying objection was substantially justified; or Fed. R. Civ. P. 37(b)(2)(C)). The starting point for (iii) other circumstances make an award of determining the reasonableness of attorney's fees is the expenses unjust. lodestar calculation, the number of hours reasonably expended times an hourly fee based on the prevailing Fed. R. Civ. P. 37(a)(5)(A)(ii) and (iii). market rate. Id. (quoting Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 195 (3d Cir. 1988)). As relevant here, Rule 37(a)(5)(A) thus provides that an award of expenses is mandatory unless the opposing A party is substantially justified in failing to make party's response or objection to the discovery was required discovery when a reasonable person is substantially justified or other circumstances make an "satisf[ied] . . . that parties could differ as to whether the award of expenses unjust.1 Drone Technologies, Inc. v. party was required to comply with the disclosure Parrot S.A., No. 14-CV-0111, 2015 U.S. Dist. LEXIS request." Tolerico, supra, 205 F.R.D. at 175 (quoted 76519, 2015 WL 3756318, at *9 (W.D. Pa. June 12, case and internal quotation marks omitted); Johnson, 2015)(Rule 37(a)(5)(A) requires the court to award supra, 2014 U.S. Dist. LEXIS 1763, 2014 WL 65761, at expenses unless one of the three exceptions applies). *1 (quoting Tolerico); Crooks, supra, 2013 U.S. Dist. See also Laborers Local Union 158 v. Fred Shaffer LEXIS 88365, 2013 WL 3481581, at *3 (quoting Concrete, No. 10-CV-1524, 2012 U.S. Dist. LEXIS Tolerico). "The test of substantial justification is satisfied 14673, 2012 WL 382954, at *1 (M.D. Pa. Feb. 6, if there exists a genuine dispute concerning 2012)(interpreting Rule 37(d)(3) dealing with sanctions compliance." Tolerico, supra, 205 F.R.D. at 175-76 for failing to answer interrogatories); Dietz & Watson, (quoted case and internal quotation marks omitted); Inc. v. Liberty Mut. Ins. Co., No. 14-CV-4082, 2015 U.S. Crooks, supra, 2013 U.S. Dist. LEXIS 88365, 2013 WL Dist. LEXIS 58827, 2015 WL 2069280, at *6 (E.D. Pa. 3481581, at *3 (quoting Tolerico). See also Grider v. May 5, 2015)(noting the mandatory nature of Rule Keystone Health Plan Central, 580 F.3d 119, 140 n.23 37(a)(5)). Nonetheless, the exceptions provided in the (3d Cir. 2009)(noting Tolerico's definition of "substantial Rule give the court some discretion in deciding whether justification"). to award expenses. Cf. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir. 1995)(applying then Fed. The other exception, "when other circumstances make R. Civ. P. 37(c)(1)). an award of [*5] expenses unjust," allows a court to take into account equitable considerations. See Taylor v. The nonmoving party has the burden of showing that its United States, 815 F.2d 249, 252 (3d Cir. response or objection to the discovery was substantially 1987)(applying the fee-shifting provision of the Equal justified or that other circumstances make an award of Access to Justice Act (EAJA), 28 U.S.C. § expenses unjust. Johnson v. Federal Express Corp., 2412(d)(1)(A), allowing a court, in part, to deny fees if No. 12-CV-444, 2014 U.S. Dist. LEXIS 1763, 2014 WL "special circumstances make an award unjust"); Kane v. 65761, at *1 (M.D. Pa. Jan. 8, 2014)(applying Fed. R. Commissioner of Social Security, No. 12-CV-1899, 2013 Civ. P. 37(c)(1)); Crooks v. Nat'l Oilwell Vargo, L.P., No. U.S. Dist. LEXIS 177864, 2013 WL 6669189, at *4 10-CV-1036, 2013 U.S. Dist. LEXIS 88365, 2013 WL (D.N.J. Dec. 18, 2013)(applying the EAJA). 3481581, at *3 (M.D. Pa. June 24, 2013)(applying Fed. III. Discussion R. Civ. P. 37(c)(1)); Tolerico v. Home Depot, 205 F.R.D. Marvin had requested its expenses as part of its motion to compel responses to its two sets of RFAs. As part of the order granting the motion to compel, we required 1 Subsection (i) disallows expenses if "the movant filed the motion before attempting in good faith to obtain the disclosure LightStyles and Slagle, in accord with Rule 37(a)(5)(A), or discovery without court action . . . ." This subsection does to show why Marvin should not recover its attorney's not apply here as Marvin did seek to resolve its dispute over fees and costs, but we first required Marvin to file an the discovery with the opposing [*4] parties before filing the itemization of its fees and costs. (Doc. 149, order dated motion. Case 4:16-cv-00469-MWB Document 52-6 Filed 07/05/17 Page 3 of 5Page 3 of 5 2015 U.S. Dist. LEXIS 87049, *5

Dec. 9, 2014). unnecessary hours spent on providing factual detail of Marvin's claim for fraud in the inducement. Marvin filed the itemization by way of the penalty-of- perjury declaration of Joseph M. Winder, one of the Marvin replies that it had to include all of the attorneys representing Marvin. (Doc. 152). He affirms background in its brief because LightStyles and Slagle that two attorneys worked on the motion to compel, had objected to the RFAs on the bases that they were Craig S. Krummen and John Sellner. Krummen's billing "vague and ambiguous" and "overly broad," and all the rate for 2014 was $455 per hour, and he spent a total of facts it set forth were required to show why those 28.7 hours on the motion, for attorney's fees in the objections lacked merit in the context of [*8] the case. amount of $13,058.50. Sellner's billing rate for 2014 was $250, and he spent a total of 46.2 hours on the motion, We disagree with Marvin that the sixteen-page section it for attorney's fees in the amount [*6] of $11,550. Marvin included in its brief was necessary to present the merits seeks only its attorney's fees as expenses. For the total of its motion. The section reads like part of a brief filed number of hours worked, 74.90, the amount sought is in connection with a summary judgment motion more $24,608.50. Winder affirms that the fee amount is than a brief filed in connection with a discovery dispute. reasonable. We will therefore reduce the number of compensable hours by one half. LightStyles and Slagle then filed their brief in opposition. In opposing the request for expenses, they make the Third, LightStyles and Slagle argue that Marvin failed to following arguments. First, Marvin did not obtain the show that the hourly rates charged by Krummen and relief it requested. It requested that its RFAs be deemed Sellner were comparable to the prevailing market rates admitted, but the court instead allowed LightStyles and in the relevant community, here the Middle District of Slagle to file amended answers. We disagree with this Pennsylvania. Under the lodestar calculation, the argument. The mere fact that we did not deem the moving party must show that the rates charged are answers admitted does not foreclose an award of comparable "to the rates prevailing in the community for expenses. Marvin was successful in that we agreed that similar services by lawyers of reasonably comparable the original responses were not sufficient even if we did skill, experience, and reputation." Maldonado, 256 F.3d not grant the specific relief requested. The relief we did at 184. (quoted case and internal quotation marks grant, amended responses, is contemplated by Rule omitted). LightStyles and Slagle argue that Marvin 36(a)(6)("On finding that an answer does not comply merely relied on the rates these individual lawyers with this rule, the court may order either that the matter charged. is admitted or that an amended answer be served."). We agree with Marvin's position on this issue. Marvin Second, LightStyles and Slagle argue Marvin has failed does have the burden of showing that the hourly rates to meet its burden that the hours spent on the motion were reasonable but did not meet that burden initially were reasonable. In support, they point out that a only because the court decided to proceed on Marvin's request [*9] for expenses by first ordering it to file an sixteen-page section of Marvin's twenty-eight-page [*7] brief in support of the motion to compel was dedicated itemization, to be followed by LightStyles and Slagle's to a detailed statement of the facts, with accompanying brief showing why expenses should not be awarded. exhibits, supporting Marvin's claim of fraud in the Marvin complied with the order by filing the itemization; inducement. LightStyles and Slagle maintain this section it satisfied its burden in regard to hourly rates by way of was unnecessary as they did not object to the RFAs on its reply brief after LightStyles and Slagle raised the the basis of relevancy, so there was no need for Marvin issue in their own brief. to include in its brief any facts underlying its claim. They As Marvin argues, it can show that its hourly rates are also contend that the fact section was included to reasonable by relying on the fee schedule Community prejudice the court in regard to Marvin's motion for Legal Services (CLS) of Philadelphia has established as summary judgment on the claims made against it. Since prevailing rates for the purpose of fee awards. See the court must exclude from the lodestar any Benjamin v. Dep't of Public Welfare, Commonwealth of unnecessary hours, Maldonado v. Houstoun, 256 F.3d Pennsylvania, No. 09-CV-1182, 2014 U.S. Dist. LEXIS 181, 184 (3d Cir. 2001), LightStyles and Slagle contend 135309, 2014 WL 4793736, at *8 (M.D. Pa. Sept. 25, the court should exclude from the compensable hours 2014); Stockport Mountain Corp., LLC v. Norcross one-half to two-thirds of the 74.90 hours claimed, Wildlife Found., Inc., No. 11-CV-514, 2014 U.S. Dist. LightStyles and Slagle's estimate of the number of Case 4:16-cv-00469-MWB Document 52-6 Filed 07/05/17 Page 4 of 5Page 4 of 5 2015 U.S. Dist. LEXIS 87049, *9

LEXIS 3694, 2014 WL 131604, at *4 (M.D. Pa. Jan. 13, justification is that their counsel has always acted in 2014); Brown v. Trueblue, Inc., No. 10-CV-514, 2013 good faith and attempted to resolve the dispute without U.S. Dist. LEXIS 158476, 2013 WL 5947499, at *2 court intervention. We have no doubt that counsel acted (M.D. Pa. Nov. 5, 2013). in good faith and was earnestly advancing his clients' interests in his answers to the RFAs. However, good In the instant case, Krummen has nineteen years of faith does not constitute substantial justification. See experience, and his hourly rate was $455. (Doc. 152, Pugliese v. County of Lancaster, No. 12-CV-7073, 2014 Winder Decl. ¶ 4). The CLS schedule indicates that an U.S. Dist. LEXIS 153377, 2014 WL 5470469, at *2 (E.D. hourly rate for an attorney of his experience ranges from Pa. Oct. 29, 2014)(Rule 37(a)(5)(A) does not require "a $435 to $505. (Doc. 164-1, ECF p. 2). We will accept his finding of bad faith or intentional wrongdoing to shift hourly rate since it falls within this range. Sellner fees")(citing the 1970 commentary to subdivision (a)(4)). graduated from law school in 2008, and his hourly rate See also Tracinda Corp. v. DaimlerChrysler AG, 502 was $250. (Doc. 164, Sellner Decl. ¶ 2). We will accept F.3d 212, 242 (3d Cir. 2007)(a finding of bad faith is not his hourly rate because the CLS schedule indicates that required for the imposition of discovery sanctions under an hourly rate for an attorney of his experience ranges Fed. R. Civ. P. 16(f)). But see ASD Specialty from $265 to $335. (Doc. 164-1, ECF p. 2). Even an Healthcare, supra, 2013 U.S. Dist. LEXIS 51442, 2013 attorney with only two years [*10] of experience could WL 1482777, at *7 (Rule 37(a)(5)(A) "direct[s] the court earn this rate as the range for attorneys with two to five not to award fees when there is evidence of good faith years of experience is $180 to $250. (Id.). attempts to make discovery disclosures.").2 Fourth, LightStyles and Slagle assert no expenses Fifth, LightStyles and Slagle assert that other should be awarded because they were substantially circumstances make an award of expenses unjust. justified in their original answers and objections to the Under this exception, they contend we can apply RFAs. As we see it, they provide two grounds for this equitable principles recognized in Doering v. Union argument. For one, merely because the court ordered County Bd. of Chosen Freeholders, 857 F.2d 191 (3d that they amend their answers does not automatically Cir. 1988), to deny the request for attorney's fees mean they had no substantial justification for their entirely or to reduce the amount of the fees awarded. In original responses to the discovery request; their Doering, the Third Circuit held that in deciding on a counsel asserted objections to protect their clients' sanction under Fed. R. Civ. P. 11 a district court could interests and had an explanation for those objections. take into account equitable considerations, including the For another, their counsel has always acted in good sanctioned party's ability to pay and whether the amount faith and attempted to resolve the dispute without court of the sanction would be punitive. Id. at 195-96. Here, intervention. LightStyles and Slagle point out that they are both in bankruptcy and that they are represented by a small We agree with LightStyles and Slagle that their loss of two-attorney firm appointed by the bankruptcy trustee. the discovery motion does not mean that their position As another equitable consideration, they argue that their on the discovery dispute was not substantially justified. counsel has no history of violating discovery rules. Id. at As noted above, substantial justification exists if a 197 n.6. reasonable person could conclude that the parties could disagree whether compliance with the discovery request We agree that a party's ability to pay is an equitable was required. Tolerico, supra, 205 F.R.D. at 175. Stated consideration in fee shifting under Rule 37(a)(5)(A). another way, substantial justification exists if there is a However, as Marvin points out, it is not unusual for genuine dispute [*11] concerning compliance. Id. at discovery sanctions to be imposed on a party in 175-76. bankruptcy. Further, we would need more details on However, we disagree with LightStyles and Slagle that counsel's ability to pay than the fact that he works [*13] their position was substantially justified. As noted in the in a two-lawyer firm. As Marvin observes, counsel's court's memorandum resolving the discovery dispute, their objections were no bases for failing to answer certain RFAs; the RFAs could have been answered with 2 Because the rule contains this "substantially justified" qualification if necessary. exception, LightStyles and Slagle cannot rely on the equitable "other circumstances" exception [*12] to make their good-faith LightStyles and Slagle's second ground for substantial argument. Otherwise, the latter exception would swallow up the former. Case 4:16-cv-00469-MWB Document 52-6 Filed 07/05/17 Page 5 of 5Page 5 of 5 2015 U.S. Dist. LEXIS 87049, *12 hourly rate is $600. (Doc. 164-1, ECF p.5). In contrast, the lawyer in Doering reported an annual income of $40,000 and was facing a sanction of $25,000. Doering, 857 F.2d at 192, 196 n.5.

Based on the foregoing, we will grant Marvin's motion for expenses under Rule 37(a)(5)(A). As noted, we will reduce the hours by half so that the award will be in the amount of $12,304.25.

/s/ William W. Caldwell

William W. Caldwell

United States District Judge

July 6, 2015

End of Document Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 1 of 8

Positive As of: July 5, 2017 1:50 PM Z

Paulus v. Cordero

United States District Court for the Middle District of Pennsylvania January 31, 2013, Decided; February 1, 2013, Filed CIVIL ACTION NO. 3:12-CV-986

Reporter 2013 U.S. Dist. LEXIS 20198 *; 2013 WL 432769 prevent her from providing for herself or her two minor In re the Application of ALBERTO EUGENIO FONT children. Because she has not shown that it would PAULUS, Petitioner for P.F.V., v. ANA VIRGINIA [*2] be clearly inappropriate for the Court to order her to VITTINI CORDERO, Respondent pay the necessary expenses incurred by or on behalf of Prior History: Paulus v. Cordero, 2012 U.S. Dist. Mr. Font Paulus in this matter, his motion will be granted. LEXIS 90374 (M.D. Pa., June 29, 2012) BACKGROUND Counsel: [*1] For Alberto Eugenio Font Paulus, Plaintiff: Paige F. Macdonald-Matthes, Serratelli, P.F.V. is the minor daughter of Petitioner Alberto Schiffman, Brown & Calhoon, P.C., Harrisburg, PA; Eugenio Font Paulus and his ex-wife, Respondent Ana Tracy V. Schaffer, Vanessa A. Nadal, JONES DAY, Virginia Vittini Cordero. On May 24, 2012, Mr. Font New York, NY. Paulus filed his Verified Petition for Return of Child to For Ana Virginia Vittini Cordero, Defendant: Brian J. Petitioner Under the Hague Convention. (Doc. 1.) The Cali, LEAD ATTORNEY, Dunmore, PA; Nisha Arora, Court held an initial hearing on the matter on May 31, LEAD ATTORNEY, Cali Law, Dunmore, PA. 2012. Following that hearing, the Court entered an Order declaring that Mr. Font Paulus had established Judges: A. Richard Caputo, United States District his prima facie case in support of his Petition under the Judge. Convention and that a hearing would be later held for Ms. Vittini Cordero to show cause why the Petition Opinion by: A. Richard Caputo should not be granted. (Doc. 11.) The Court also ordered that she turn over her passport and P.F.V.'s Opinion passport to the United States Marshals and remain in the Middle District of Pennsylvania while the Petition was pending. (Id.) On June 26 and 27, 2012, the Court held a hearing for Ms. Vittini Cordero to show cause MEMORANDUM why the Petition should not be granted. The Court granted the Petition on June 29, 2012, finding that Ms. Before the Court is Petitioner Alberto Eugenio Font Vittini Cordero [*3] wrongfully retained P.F.V. in the Paulus's Motion for an Award of Attorneys' Fees and United States. (Doc. 22 at 17.) The Court ordered that Costs for Return of Child Pursuant to Convention Article P.F.V. be returned to the Dominican Republic in the 26 and 42 U.S.C. § 11607. (Doc. 30.) In its company of Mr. Font Paulus and directed him to submit Memorandum (Doc. 22) and Order (Doc. 23) of June 29, an application for attorneys' fees under 42 U.S.C. § 2012, the Court granted Mr. Font Paulus's Verified 11607 within fourteen days. (Doc. 23.) On July 13, Petition for Return of Child to Petitioner Under the 2012, Mr. Font Paulus filed his motion for costs and Hague Convention (Doc. 1) and ordered him to apply for attorneys' fees necessary for the return of P.F.V. (Doc. attorneys' fees under 42 U.S.C. § 11607 within fourteen 30.) He seeks for Ms. Vittini Cordero to pay the days. Respondent, Ana Virginia Vittini Cordero, argues necessary expenses incurred by him or on his behalf in that an award of attorneys' fees for Mr. Font Paulus's this matter: $7,251.57 in costs and $36,990.00 in counsel would be clearly inappropriate because he was attorneys' fees. The motion has been briefed and is now represented on a pro bono basis and a fee award would Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 2 of 8Page 2 of 8 2013 U.S. Dist. LEXIS 20198, *3 ripe for the Court's review. of the Petition and Memorandum of Law for Mr. Font Paulus to verify; (3) court filing fees; (4) a translator at DISCUSSION the hearing; and (5) the courier service that obtained P.F.V.'s passport from the United States Marshals on Costs and fees are explicitly provided for under the Mr. Font Paulus's behalf and verified that Ms. Vittini Hague Convention on Civil Aspects of International Cordero had not fled with P.F.V. following her failure to Child Abduction (the "Hague Convention" or answer Mr. Font Paulus's phone calls for three days "Convention") and its implementing statute, the following the Court's June 29, 2012 Order. (Doc. 31 at 4; International Child Abduction Remedies Act ("ICARA"), Doc. 32 at 6-7.) Mr. Font Paulus notes that neither he 42 U.S.C. § 11601 et seq. ICARA provides, in relevant nor his counsel are seeking reimbursement for other part, that: costs that courts have found to be compensable under ICARA, including costs for copying, long distance calls, Any court ordering the return of a child pursuant to mileage, meals during the hearing, legal research costs, an action brought under [ICARA] shall order the or postage or shipping [*6] charges. (Doc. 32 at 7.) respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, Ms. Vittini Cordero challenges Mr. Font Paulus's legal fees, foster home [*4] or other care during the expenses for lodging, transportation, interpreting and course of the proceedings in the action, and translation services, court costs, and post-hearing transportation costs related to the return of the investigatory and courier costs on the grounds that they child, unless the respondent establishes that such are not necessary. Her arguments will be addressed in order would be clearly inappropriate. turn.

42 U.S.C. § 11607(b)(3). The purpose of shifting 1. Lodging Costs expenses to the abductor is both "to restore the applicant to the financial position he or she would have a. Mr. Font Paulus been in had there been no removal or retention, as well as to deter such conduct from happening in the first Ms. Vittini Cordero challenges Mr. Font Paulus's lodging place." 51 Fed. Reg. 10494-01, 10511. expenses of $244.20 because he stayed at the Ramada Wilkes-Barre for four nights (June 23-26, 2012) for the A. Costs two-day hearing (June 26-27, 2012). (Doc. 33 at 4.) She contends that she should only be responsible for $61.05 Mr. Font Paulus seeks reimbursement of $7,251.57 in - the cost of one night's stay at the Ramada. (Id.) costs, $1,704.50 of which he incurred and $5,547.07 of which was incurred by his New York counsel, Vanessa The Court agrees with Ms. Vittini Cordero that it would Nadal, Esq. and Tracy Schaffer, Esq. of Jones Day. He be clearly inappropriate to order her to pay for Mr. Font states that he spent $1,704.50 on travel and lodging Paulus to stay in Wilkes-Barre for four nights. Although costs, including: (1) round trip airfare for his flights to the Court finds that it was reasonable and necessary for and from the United States for the June 2012 hearing; Mr. Font Paulus to stay overnight in Wilkes-Barre on (2) airfare for P.F.V.'s return flight to the Dominican June 25 and 26, 2012, the nights before the first and Republic; (3) round trip bus fare to and from Wilkes- second days of the hearing, it was not necessary for him Barre, Pennsylvania for himself, his sister, and her to do so on June 23 and 24, 2012. Therefore, Ms. Vittini husband (who served as a guide and translator) for the Cordero will be ordered to reimburse Mr. Font Paulus hearing; (4) round trip bus fare to and from $122.10 in lodging expenses - his cost of [*7] staying in Pennsylvania for himself, his sister, and [*5] her the Ramada Wilkes-Barre on June 25 and 26, 2012. husband to pick up P.F.V.; (4) return bus fare to New York for P.F.V.; and (5) his lodging in Wilkes-Barre for b. Attorneys Nadal and Schaffer the hearing. (Doc. 32 at 6.) Ms. Vittini Cordero also questions the necessity of the Attorneys Nadal and Schaffer seek reimbursement of $641.56 in lodging expenses incurred by Attorneys $5,547.07 for various necessary expenses incurred on Nadal and Schaffer, who spent the night of June 25, Mr. Font Paulus's behalf in this matter, including: (1) 2012 in the Hilton Garden Inn Wilkes-Barre, which cost lodging in Wilkes-Barre for the hearing; (2) certified $132.09 per room, and the following night in the Holiday English translations of the Dominican court orders and Inn Express Wilkes-Barre East, which cost $188.69 per laws appended to the Petition and Spanish translations room. (Id. Doc. 33 at 4-5.) Ms. Vittini Cordero argues Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 3 of 8Page 3 of 8 2013 U.S. Dist. LEXIS 20198, *7 that she should only be responsible for $122.10 - the Ms. Vittini Cordero has not established that it would be cost of renting two rooms for one night at the Ramada clearly inappropriate for the Court to order her to pay for Wilkes-Barre. (Id. at 5.) She contends that Attorneys the $619.50 in bus fare incurred by Mr. Font Paulus for Nadal and Schaffer did not need to stay in a hotel in the two round trips between New York and Wilkes-Barre on June 25, 2012, the night before the first Pennsylvania made by himself, his sister, and his day of the hearing, because they could have driven the sister's husband, as well as P.F.V.'s trip from 120 miles from Manhattan to Wilkes-Barre the following Pennsylvania to New York. The bus fares for Mr. Font morning. (Id.) She reasons that she should only be Paulus were reasonable and necessary for him to responsible for the cost of one night's stay at the participate in the June 2012 hearing and pick up P.F.V. Ramada for Attorneys Nadal and Schaffer instead of the See 42 U.S.C. § 11607(b)(3) (including "transportation "luxury accommodations" at the Hilton Garden Inn and costs related to the return of the child" among Holiday Inn Express. (Id.) "necessary expenses incurred by or on behalf of the petitioner"); see also Guaragno v. Guaragno, No. 09- Ms. Vittini Cordero has failed to show that it would be CV-187, 2010 U.S. Dist. LEXIS 139576, 2010 WL clearly inappropriate to require her to pay for the lodging 5564628, at * 5 (N.D. Tex. Oct. 19, 2010), [*10] aff'd, [*8] expenses incurred by Attorneys Nadal and 2011 U.S. Dist. LEXIS 8312, 2011 WL 108946 (N.D. Schaffer. Given the distance from New York City to Tex. Jan. 18, 2011) (finding that the costs for two flights- Wilkes-Barre, the Court finds that it was reasonable and one for trial and one for pickup of child-were necessary for Attorneys Nadal and Schaffer to stay "reasonable and necessarily incurred"). Furthermore, overnight in Wilkes-Barre on June 25, 2012. It is the bus fares for Mr. Font Paulus's sister, who testified undisputed that it was necessary for them to stay at the hearing, and her husband, who acted as a guide overnight on July 26, 2012, as the hearing lasted two and translator for Mr. Font Paulus, who neither lives in days. The Court also finds that the rates paid at the the United States nor speaks English, were reasonable Hilton Garden Inn Wilkes-Barre and Holiday Inn Express and necessary in this matter. It is clear that P.F.V.'s bus Wilkes-Barre East were reasonable, especially given the fare from Pennsylvania to New York, which began her unexpected nature of the second night's stay. return trip to the Dominican Republic, is also necessary Accordingly, Ms. Vittini Cordero will be ordered to and reasonable. Accordingly, Ms. Vittini Cordero will be reimburse Attorneys Nadal and Schaffer $641.56 for the ordered to reimburse Mr. Font Paulus $619.50 for these necessary lodging expenses they incurred on behalf of transportation expenses. Mr. Font Paulus in this matter. b. Airfare 2. Transportation Costs Ms. Vittini Cordero also argues that Mr. Font Paulus's a. Bus Fare round trip flight from the Dominican Republic to the United States was unnecessary because he could have Ms. Vittini Cordero also challenges the necessity of testified at the June 2012 hearing by telephone or video $619.50 in bus fare paid by Mr. Font Paulus for two conference. (Doc. 33 at 6.) However, federal courts rounds trips between New York and Pennsylvania. have awarded successful ICARA petitioners airfare (Doc. 31 at 4; Doc. 33 at 5.) First, concerning the incurred in traveling to and from the United States to $299.50 in bus fare that Mr. Font Paulus seeks for appear in court. See, e.g., Freier v. Freier, 985 F. Supp. himself, his sister, and her husband for their round trip 710, 714 (E.D. Mich. 1997) (awarding $2,422.00 to Wilkes-Barre for the hearing, Ms. Vittini Cordero [*11] for Petitioner's round trip and minor child's one- claims that she should only be responsible [*9] for Mr. way airfare); Guaragno v. Guaragno, No. 09-CV-187, Font Paulus's fare ($94.50) because he was the only 2010 U.S. Dist. LEXIS 139576, 2010 WL 5564628, at * one of those three required to be at the hearing. (Doc. 5 (N.D. Tex. Oct. 19, 2010), aff'd, 2011 U.S. Dist. LEXIS 33 at 5.) Next, she challenges the $320 in bus fare that 8312, 2011 WL 108946 (N.D. Tex. Jan. 18, 2011). Mr. Font Paulus seeks for himself, his sister, and her Therefore, as Ms. Vittini Cordero has not shown that it husband for their post-hearing round trip to would be clearly inappropriate to require her to pay for Pennsylvania to pick up P.F.V. and for P.F.V.'s return Mr. Font Paulus's airfare to and from the United States trip to New York. (Id. at 6.) She claims that the post- for the hearing, she will be ordered to reimburse him hearing bus trip to Pennsylvania was unnecessary, as $555.80 for his reasonable and necessary air travel her offer to bring P.F.V. to the airport was rejected by Mr. Font Paulus's counsel. (Id.) Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 4 of 8Page 4 of 8 2013 U.S. Dist. LEXIS 20198, *11 costs. 1 4. Court Costs

3. Interpreting and Translation Costs Ms. Vittini Cordero contends that Mr. Font Paulus should not be awarded court costs on equitable grounds Ms. Vittini Cordero maintains that the $1,944.00 for because he filed this action with unclean hands. (Doc. interpreting services and $2,111.51 for translation 33 at 7.) She avers that he "filed this action in a services incurred by Attorneys Nadal and Schaffer are vexatious manner and with the knowledge that he had not recoverable because neither the translators nor the been denied any custody rights in the Dominican interpreter were court-appointed. (Doc. 33 at 6.) She Republic," "was fully aware of her whereabouts and contends that even if the Court determines that the those of [P.F.V.] but made no contact with [P.F.V.]," and interpreter fees are recoverable, the $1,944.00 sum "is delinquent in his child support payments by . . . requested is "exorbitant given the locality pay [*12] of approximately $2,000." (Id.) the Wilkes-Barre . . . area" and the $358.00 sum charged by her own interpreter for two days of services. The equitable defense unclean hands defense is (Id. at 7.) She also challenges the necessity of the inapplicable here. The United States Court of Appeals seven hours spent by the interpreter prior to the hearing, for the Third Circuit has held that applying "the unclean given Attorney Nadal's fluency in Spanish. (Id.) hands doctrine would undermine the [*14] Hague Convention's goal of protecting the well-being of the Ms. Vittini Cordero has failed to establish that an order child, of restoring the status quo before the child's requiring her to pay for interpreting and translation abduction, and of ensuring that rights of custody . . . of services incurred on behalf of Mr. Font Paulus in this one Contracting State are effectively respected in the matter would be clearly inappropriate. Many federal other Contracting States." Karpenko v. Leendertz, 619 courts have awarded translation and translator costs to F.3d 259, 265 (3d Cir. 2010) (internal citations omitted). successful ICARA petitioners. See, e.g., Guaragno v. Furthermore, court costs are explicitly mentioned in § Guaragano, No. 09-CV-187, 2011 U.S. Dist. LEXIS 11607(b)(3) as "necessary expenses incurred by or on 8312, 2011 WL 108946, at *4 (N.D. Tex. Jan. 18, 2011) behalf of the petitioner." Therefore, because Ms. Vittini (awarding "reasonably and necessarily incurred and Cordero has not established that requiring her to pay adequately documented" translator trial fees and costs the $350.00 in court costs incurred by Attorneys Nadal of $3,788.75 and foreign document translation fees of and Schaffer on behalf of Mr. Font Paulus would be $8,702.47); Blanc v. Morgan, 721 F. Supp. 2d 749, 768 clearly inappropriate, she will be ordered to reimburse (W.D. Tenn. 2010) (awarding "translation services . . . Attorneys Nadal and Schaffer for this necessary and other incidental expenses contemplated by § expense. 11607(b)(3)"); Neves v. Neves, 637 F. Supp. 2d 322, 343-44 (W.D.N.C. 2009) (awarding translation costs of 5. Post-Hearing Investigatory and Courier Costs $191.25); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 816-17 (N.D. Iowa 2003) Finally, Ms. Vittini Cordero challenges the $500.00 in (awarding [*13] translation costs of $717.75, including a post-hearing investigatory and courier costs incurred by translator for trial); Friedrich v. Thompson, No. 99-CV- Attorneys Nadal and Schaffer. (Doc. 33 at 8; Doc. 31.) 772, 1999 U.S. Dist. LEXIS 21303, 1999 WL 33954819, She contends that it was not necessary to courier at *8 (M.D.N.C. Nov. 26, 1999) (awarding expenses for P.F.V.'s passport Mr. Font Paulus, as it was made translation of documents from German to English). available to him by the United States Marshals. (Id.) She Therefore, Ms. Vittini Cordero will be ordered to pay contends that it was unnecessary to hire a private Attorneys Nadal and Schaffer $1,944.00 for interpreting [*15] investigator to ensure that she and P.F.V. services and $2,111.51 for translation services, which remained in the Middle District of Pennsylvania, as Mr. were both reasonable and necessary, that they incurred Font Paulus's claims that she did not answer his phone on behalf of Mr. Font Paulus in this matter. calls for three days after the hearing are meritless. (Id.) She further contends that it is impossible to determine the basis, nature, or necessity of these fees, as the investigator's invoice neither delineates between the two 1 The Court finds that the $290.00 in airfare for P.F.V.'s return separate services nor specifies who completed the flight to the Dominican Republic, which Ms. Vittini Cordero has services. (Id.) not challenged, is a necessary expense under ICARA. Therefore, she will be ordered to reimburse Mr. Font Paulus Ms. Vittini Cordero has failed to carry her burden of for this expense. Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 5 of 8Page 5 of 8 2013 U.S. Dist. LEXIS 20198, *15 establishing that it would be clearly inappropriate for the claims on which the party did succeed." Court to order her to pay $500.00 for the post-hearing Institutionalized Juveniles [v. Sec'y of Pub. investigatory and courier services incurred by Attorneys Wellfare], 758 F.2d [897, 919 (3d Cir. 1985)] Nadal and Schaffer. As these services are reasonable (quoting Hensley, 461 U.S. at 440). The court also and necessary expenses incurred on behalf of Mr. Font can deduct hours when the fee petition Paulus and related to the return of P.F.V., Ms. Vittini inadequately documents the hours claimed. Cordero will be ordered to reimburse Attorneys Nadal Hensley, 461 U.S. at 433. and Schaffer the $500.00 they incurred in obtaining them. Id. (citations omitted). In determining whether the number of hours claimed is reasonable, the court may For the reasons outlined above, Mr. Font Paulus's divide the claimed hours according to the type of work motion (Doc. 30) will be granted with respect to costs performed. See, e.g., Maldonado v. Houstoun, 256 F.3d and Ms. Vittini Cordero will be ordered to pay costs of 181 (3d Cir. 2001). Hours that would not typically be $5,547.07 to Attorneys Nadal and Schaffer and billed to a client cannot be billed to an adversary. See $1,582.40 to Mr. Font Paulus. Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995). B. Attorneys' Fees The second step in the lodestar determination is The [*16] starting point for a court's determination of determining whether the claimed rates are reasonable. reasonable attorneys' fees is the lodestar calculation, The court [*18] starts with the market rates prevailing at which entails multiplying the number of hours the time of the petition, which the party seeking fees has reasonably expended by each attorney by a reasonable the burden of establishing by satisfactory evidence. See hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, Maldonado, 256 F.3d 181; Lanni v. State of N.J., 259 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). The party F.3d 146, 149 (3d. Cir. 2001). "[T]he court should seeking fees has the initial burden of presenting assess the experience and skill of the prevailing party's evidence that the claimed rates and amounts of time are attorneys and compare their rates to the rates prevailing reasonable. See Pennsylvania v. Delaware Valley in the community for similar services by lawyers of Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 reasonably comparable skill, experience, and S. Ct. 3088, 92 L. Ed. 2d 439 (1986). Once the fee reputation." Rode, 892 F.2d at 1183. If there is evidence applicant has made this initial showing, "the resulting that the market has established different rates for product is presumed to be the reasonable fee to which different categories of legal work, the district court counsel is entitled." Id. (quoting Blum v. Stenson, 465 should assign the appropriate rate to each category. U.S. 886, 897, 104 S. Ct. 1541, 79 L. Ed. 2d 891 See Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (1984)). The opposing party then has the burden of (3d Cir. 2001). making specific objections to the proposed fee by affidavit or brief. See Rode v. Dellarciprete, 892 F.2d Once the lodestar has been determined, the Court can 1177, 1183 (3d Cir. 1990). In considering the opposing adjust the lodestar downwards if the amount is not party's objections, the district court has significant reasonable in light of the applicant's success-or more discretion to adjust the lodestar downwards. Id. properly, his lack thereof-in the litigation. Rode, 892 F.2d at 1183. In certain rare instances, the lodestar may The first step in the lodestar calculation is the also be adjusted upwards to compensate counsel for determination of the number of hours reasonably exceptionally high quality work or for the risks expended. The court begins with the claimed hours for associated with undertaking the litigation. Id. at 1184. which the applicant has evidentiary support, and then The party [*19] seeking an adjustment has the burden [*17] makes deductions, if necessary, as follows: of proving that it is appropriate. Lanni, 259 F.3d at 149. "If that party meets the burden of proving that an The district court should exclude hours that are not adjustment is appropriate, the lodestar amount may be reasonably expended. Hours are not reasonably increased or decreased at the discretion of the District expended if they are excessive, redundant, or Court." Id. otherwise unnecessary. Further, the court can reduce the hours claimed by the number of hours 1. Number of Hours Reasonably Expended "spent litigating claims on which the party did not succeed and that were 'distinct in all respects from' Under the lodestar method, the Court must first Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 6 of 8Page 6 of 8 2013 U.S. Dist. LEXIS 20198, *19 determine the number of hours reasonably expended by years (Doc. 31, Ex. I), claims an hourly rate of $300.00 Mr. Font Paulus's counsel in this case. His local (Doc. 31 at 9). Attorney Nadal, a member of the New counsel, Paige Macdonald-Matthes, Esq., a partner at York bar who has practiced law for two years (Doc. 31, the Harrisburg, Pennsylvania firm of Serratelli, Ex. I), claims an hourly rate of $165.00 (Doc. 31 at 9). Schiffman & Brown, PC, requests that she be paid for Attorney Schaffer, a member of the New York bar who 54.6 hours spent on this case. (Doc. 31, Ex. B.) She has practiced law for twelve years (Doc. 31, Ex. I), represents that she spent 7.7 hours communicating with claims an hourly rate of $260.00 (Doc. 31 at 9). counsel, the United States Department of State, Mr. Font Paulus, and the Court; 2.8 hours drafting and Attorneys Nadal and Schaffer have discounted their revising the Petition and accompanying documents; 5.5 usual respective hourly rates of $450.00 and $700.00 to hours preparing for and participating in the initial hearing match the fee schedule established by Community on May 31, 2012; 36.2 hours preparing for, attending, Legal Services of Philadelphia ("CLS") (Doc. 31, Ex. C), and participating in the subsequent hearing of June 26 which "has been approvingly cited by the Third Circuit and 27, 2012; and 2.4 hours facilitating the return of as being well developed and has been found by [the P.F.V. after the hearing. (Doc. 31, Ex. B and D.) Eastern District of Pennsylvania] [*22] to be a fair reflection of the prevailing market rates in Philadelphia." Attorney Nadal, an associate in the New York office Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. [*20] of Jones Day, requests that she be paid for 54 2001) (citing Rainey v. Phila. Housing Auth., 832 F. hours spent on this case. She represents that she spent Supp. 127, 129 (E.D. Pa. 1993)). This Court has 20 hours drafting and revising the Petition and previously expressed its belief that although "the Third accompanying documents; 26 hours preparing for, Circuit has 'never authoritatively resolved the issue' of attending, and participating in the June 2012 hearing; whether the relevant community is the law firm's and 8 hours facilitating the return of P.F.V. after the community or . . . the community in which the case is hearing. (Doc. 31, Ex. B; Doc. 35, Ex. C.) Attorney actually litigated," "the 'relevant community' for the Schaffer, a partner in Jones Day's New York office, purpose of determining billing rates . . . includes . . . the requests that she be paid for 45 hours spent in this entire Middle District and Eastern District of matter. She represents that she spent 5 hours drafting Pennsylvania." Valenti v. Allstate Ins. Co., 243 F. Supp. and revising the Petition and accompanying documents; 2d 200, 206, 207 (M.D. Pa. 2003). Therefore, the Court 37 hours preparing for, attending, and participating in approves of the rates established by CLS as reasonable the June 2012 hearing; and 3 hours facilitating the market rates to be used in fixing the hourly rates in this return of P.F.V. after the hearing. (Doc. 31, Ex. B; Doc. case. The Court finds that the hourly rates claimed by 35, Ex. C.) Attorneys Nadal and Schaffer note that the Attorneys Nadal and Schaffer are reasonable, as they number of hours they seek compensation for (99) is fall within the range of rates established by CLS for severely reduced from the number of hours they have attorneys with similar experience. 2 The Court also finds actually spent on the case (approximately 350). (Doc. that the hourly rate claimed by Attorney Macdonald- 32 at 9; Doc. 31, Ex. B.) They state that they have Matthes is reasonable, as it is below the range of rates voluntarily done so to account for possible duplicative provided by CLS schedule for attorneys [*23] with efforts among all of Mr. Font Paulus's attorneys and similar experience. consider Ms. Vittini Cordero's ability to pay the fees in full. (Doc. 32 at 10.) Having found that the number of hours expended by

Having [*21] carefully reviewed the billing records of Attorneys Macdonald-Matthes, Nadal, and Schaffer, the 2 The CLS fee schedule provides a range of hourly fees for Court finds that the hours they have billed and for which different levels of post-law school experience. For an attorney they seek fees correspond to the amount of time it with less than two years of experience, the given range is would reasonably take to complete the tasks listed. $165.00-$190.00. For an attorney with eleven to fifteen years of experience, the given range is $260.00-$335.00. For an 2. Reasonable Hourly Rates attorney with sixteen to twenty years of experience, the given range is $305.00-$350.00. (Doc. 31, Ex. C.) The hourly rates Next, the Court must determine whether the hourly rates claimed by Attorneys Nadal ($165.00) and Schaffer ($260.00) claimed by Mr. Font Paulus's attorneys are reasonable. are at the low end of the ranges given for their respective Attorney Macdonald-Matthes, a member of the experience levels. The hourly rate claimed by Attorney Pennsylvania bar who has practiced law for twenty Macdonald-Matthes ($300.00) is below the range given in the schedule for an attorney with her experience level. Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 7 of 8Page 7 of 8 2013 U.S. Dist. LEXIS 20198, *23 and hourly rate claimed by each attorney are award is sometimes reduced, but not entirely denied." reasonable, the Court must then multiply each attorney's Sullivan v. Sullivan, No. 09-CV-545, 2010 U.S. Dist. requested hours by her hourly rate to determine her LEXIS 39256, 2010 WL 1651994, at *2 (D. Idaho Apr. lodestar figure. Attorney Macdonald-Matthes's figure is 21, 2010) (citing Rydder, 49 F.3d 369, 374 (8th Cir. $16,380.00 (54.6 hours x $300.00 per hour). Attorney 1995) (reducing fee [*26] award by 46% because of Nadal's figure is $8,910.00 (54 hours x $165.00 per respondent's "straitened financial circumstances"); hour). Attorney Schaffer's figure is $11,700.00 (45 hours Berendsen v. Nichols, 938 F. Supp. 737, 739 (D. Kan. x $260.00 per hour). When added together, [*24] these 1996) (reducing fee award by 15% in light of attorneys' fees, which are "necessary expenses incurred respondent's financial status); Willing v. Purtill, No. 07- . . . on behalf of the petitioner," total $36,990.00. CV-1618, 2008 U.S. Dist. LEXIS 7451, 2008 WL 299073, at *3-4 (D. Or. Jan. 31, 2008) (reducing fee Ms. Vittini Cordero challenges these fees on several award by 15% in light of respondent's financial status)); grounds. She first contends that "the integrity of see also Saldivar, 2012 U.S. Dist. LEXIS 141126, 2012 awarding . . . fees to counsel who agree to take a case WL 4497507, at *16 (reducing fee award by 55% in light as a pro bono matter is questionable." (Doc. 33 at 9-10.) of respondent's financial status). "A reduction on the However, she has failed to establish that ordering her to account of straitened financial condition, however, will pay attorneys' fees in this matter would be clearly not be applied to litigation costs and out-of-pocket inappropriate, as many federal courts have found expenses . . . ." Saldivar, 2012 U.S. Dist. LEXIS counsel representing a successful ICARA petitioner on 141126, 2012 WL 4497507, at *16 (citing Rydder, 49 a pro bono basis are entitled to recover attorneys' fees. F.3d at 374; Whallon, 356 F.3d at 139). See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) ("The fact that [successful ICARA petitioner's] Although Ms. Vittini Cordero claims that an order lawyers provided their services pro bono does not make requiring her to pay $36,990.00 in attorneys' fees would a fee award inappropriate."); see also Hamidas v. be "clearly inappropriate" due the financial strain it Hamidas, 720 F. Supp. 2d 183, 209 (E.D.N.Y. 2010) would place her and her minor children under, she has ("[T]he fact that the petitioner in this case was failed to provide any evidentiary support for this position. represented by pro bono counsel does not provide a The record is devoid of any evidence or documentation basis for disregarding the Convention's fee provision."); showing Ms. Vittini Cordero's employment status, Sullivan v. Sullivan, No. 09-545, 2010 U.S. Dist. LEXIS income, or assets. Nor does it contain any evidence that 39256, 2010 WL 1651994, at *1 (D. Idaho Apr. 20, she has two minor children and is their sole provider. 2010) ("[E]ven where a [successful ICARA] case is [*27] Therefore, as the Court cannot entertain Ms. Vittini taken on a pro bono basis, the Petitioner is still Cordero's unsubstantiated assertions as to her financial [*25] entitled to recovery of reasonable attorney fees.") situation, she has not established that ordering her to Accordingly, the Court rejects Ms. Vittini Cordero's pay attorneys' fees is clearly inappropriate or that a argument that it would be clearly inappropriate to award reduction in fees is warranted in this matter. attorneys' fees to Attorneys Nadal, Schaffer, and Macdonald-Matthes because they represented Mr. Font Accordingly, Mr. Font Paulus's motion (Doc. 30) will be Paulus on a pro bono basis. granted with respect to attorneys' fees. Ms. Vittini Cordero will be ordered to pay $16,380.00 in fees to Ms. Vittini Cordero also claims that an award of Attorney Macdonald-Matthes, $8,910.00 in fees to $36,900.00 in attorneys' fees is clearly inappropriate Attorney Nadal, and $11,700.00 in fees to Attorney because it would render her, a minimum wage earner Schaffer. and single mother of two children, unable to provide for herself or her children. (Doc. 33 at 9, 18.) "The court CONCLUSION may reduce a fee award in a Hague Convention case if it prevents the respondent-parent with straitened For the foregoing reasons, the Court will grant Mr. Font financial condition from caring for his child." Saldivar v. Paulus's Motion for an Award of Attorneys' Fees and Rodela, No. 12-CV-76, 894 F. Supp. 2d 916, 2012 U.S. Costs for Return of Child Pursuant to Convention Article Dist. LEXIS 141126, 2012 WL 4497507, at *15 (W.D. 26 and 42 U.S.C. § 11607. (Doc. 30.) Ms. Vittini Tex. Oct. 1, 2012) (citing Rydder v. Rydder, 49 F.3d Cordero will be ordered to pay costs of $5,547.07 to 369, 374 (8th Cir. 1995); Whallon v. Lynn, 356 F.3d 138, Attorneys Nadal and Schaffer and $1,582.40 to Mr. Font 139-40 (1st Cir. 2004)). "[E]ven in cases where the Paulus. She will also be ordered to pay $16,380.00 in financial status of the respondent is considered, the fee fees to Attorney Macdonald-Matthes, $8,910.00 in fees Case 4:16-cv-00469-MWB Document 52-7 Filed 07/05/17 Page 8 of 8Page 8 of 8 2013 U.S. Dist. LEXIS 20198, *27 to Attorney Nadal, and $11,700.00 in fees to Attorney Schaffer.

An appropriate order follows.

January 31, 2013

Date

/s/ A. Richard Caputo

A. Richard Caputo

United States District Judge

ORDER

NOW, this 31st day of January, 2013, IT [*28] IS HEREBY ORDERED that Petitioner Alberto Eugenio Font Paulus's Motion for an Award of Attorneys' Fees and Costs for Return of Child Pursuant to Convention Article 23 and 42 U.S.C. § 11607 (Doc. 30) is GRANTED. Respondent Anna Virginia Vittini Cordero is ORDERED to: (1) Pay Paige F. Macdonald-Matthes, Esq. $16,380.00 in attorney's fees. (2) Pay Vanessa Nadal, Esq. $8,910.00 in attorney's fees. (3) Pay Tracy Schaffer, Esq. $11,700 in attorney's fees. (4) Pay Jones Day $5,547.07 in necessary expenses incurred on behalf of Petitioner Alberto Eugenio Font Paulus in this matter. (5) Pay Petitioner Alberto Eugenio Font Paulus $1,582.40 for necessary expenses incurred in this matter.

/s/ A. Richard Caputo

A. Richard Caputo

United States District Judge

End of Document Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 1 of 7 Page 1

MICHELE SAKALAS on behalf of herself and others similarly situated, Plaintiffs, v. WILKES-BARRE HOSPITAL CO. et al., Defendants

3:11-CV-0546

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2014 U.S. Dist. LEXIS 63823

May 8, 2014, Decided May 8, 2014, Filed

COUNSEL: [*1] For Michele Sakalas, on behalf of MEMORANDUM OPINION herself and other similarly situated, Plaintiff: Patrick E. Dougherty, Dougherty, Levanthal & Price, Kingston, PA; I. PROCEDURAL HISTORY Peter D. Winebrake, R. Andrew Santillo, Winebrake & Santillo, LLC, Dresher, PA; Sean P. McDonough, Presently before the Court is Plaintiff's Unopposed Dougherty, Leventhal & Price, L.L.P., Moosic, PA. Motion for Final Approval of the Class Action Settlement and the Payment to Class Counsel of Attorney's Fees and For Wilkes-Barre Hospital Company LLC, Wyoming Costs (Doc. 83). The settlement stems from a class action Valley Health Care System, Defendants: Andrea M. [*2] lawsuit alleging "that the method used by Kirshenbaum, Darren M. Creasy, Jonathan B. Sprague, Wilkes-Barre Hospital Company, LLC and Wyoming Post & Schell, P.C., Philadelphia, PA; Sidney R. Valley Heath Care System (collectively "WBHC") to Steinberg, Post & Schell, Philadelphia, PA. calculate the overtime pay owed to certain hospital employees violated the Pennsylvania Minimum Wage For Wyoming Valley Health Care System, Wilkes-Barre Act ("PMWA")." (Pl.'s Mem. of Law in Supp. of Mot. for Hospital Company LLC, Third Party Plaintiffs: Jonathan Final Approval of Class Action Settlement, Doc. 84, at B. Sprague, Post & Schell, P.C., Philadelphia, PA; 1). Specifically, Defendants utilized an "8/80 Rule" Sidney R. Steinberg, Post & Schell, Philadelphia, PA. wherein "overtime will be paid at one and one-half times the employee's average hourly rate for hours worked in For Wyoming Valley Nurses Association/PASNAP, excess of (8) hours in one day or eighty (80) hours in a Third Party Defendant: Peter H. Demkovitz, Markowitz pay period." (Complaint, Doc. 1-3, at ¶ 10; Answer, Doc. & Richman, Philadelphia, PA. 11, at ¶ 10). While this method of compensation is permitted under the Fair Labor Standards Act ("FLSA"), JUDGES: Robert D. Mariani, United States District the PMWA "requires that employees be compensated for Judge. every hour worked in a workweek . . . and receive overtime compensation 'not less than one and one-half OPINION BY: Robert D. Mariani times' the employee's regular pay rate for all hours worked over 40 in a workweek." (Doc. 84, at 1-2) (citing OPINION 43 P.S. § 333.104). Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 2 of 7 Page 2 2014 U.S. Dist. LEXIS 63823, *2

On July 5, 2012, Pennsylvania House Bill 1820 was B. . . . [U]p to $ 171,500.00 to Class signed into law, thereby amending the PMWA to allow Counsel for any Court-approved attorney's hospitals, such as WBHC, to utilize the 8/80 method. fees, costs, and expenses. . . . Therefore, Plaintiff's lawsuit [*3] is limited in scope to the time period between February 11, 2008, and July 5, C. . . . [U]p to $7,500.00 to [Plaintiff] 2012. Sakalas for any Court-approved enhancement award. . . . Plaintiff filed her Complaint on February 10, 2011 in the Court of Common Pleas, Luzerne County, PA. (Doc. D. . . . [U]p to $276,000.00 1). Defendants subsequently removed the lawsuit to (representing the total of all Payout federal court. In April 2013, this Court approved the Amounts) to the Participating Class following definition of the certified class: Members. . . .

All individuals employed by WBHC in (Class Action Settlement and Release, Doc. 83-1, at 4-5). Pennsylvania during any time between Any residual funds after all class compensation, fees, and February 11, 2008 and July 5, 2012 ("the expenses have been paid will be contributed to the Relevant Time Period") who: (1) during Pennsylvania Interest on Lawyers' Trust Accounts any workweek within the Relevant Time ("IOLTA") Board and no portion will revert back to Period, was subjected to WBHC's practice WBHC. (Settlement Agreement, at ¶ 8; [*5] Doc. 84, at of awarding overtime premium pay for 6). hours exceeding 80 in a 14-day period or exceeding 8 in a 24-hour period and (2) For the reasons discussed below, the Court finds that would have received a greater total of the settlement is a fair, reasonable, and adequate overtime premium pay for the aggregate of resolution. Therefore, the Court will approve the all such workweeks if WBHC had settlement in its totality. awarded him/her overtime premium pay II. SETTLEMENT APPROVAL for all hours worked over 40 in a 7 day work week. "A class action [whose settlement will bind class members] may not be settled under [Federal Rule of Civil (Stip. In Lieu of Opp. to Pl.'s Mot. for Class Cert., Doc. Procedure] 23(e) without a determination by the district 60, at ¶ 7). As such, the parties identified 583 class court that the proposed settlement is 'fair, reasonable and members, and, relying on an analysis by adequate.'" In re Warfarin Sodium Antitrust Litig., 391 PricewaterhouseCoopers LLP ("PwC") determined that F.3d 516, 534 (3d Cir. 2004) (quoting In re Gen. Motors these members' alleged unpaid overtime totaled Corp. Pick-Up Truck Fuel Tank Products Liab. Litig., 55 $394,057.89. (Doc. 84, at 4). F.3d 768, 785 (3d Cir. 1995)); see also FED. R. CIV. P. 23(e)(2). The parties subsequently began [*4] settlement negotiations in Fall, 2013. (Doc. 84, at 4). In November, The Third Circuit "has identified nine factors to be 2013, Magistrate Judge Thomas Blewitt presided over a considered when determining whether a proposed class settlement conference between the parties, wherein a action settlement is fair, reasonable and adequate." In re settlement agreement was reached requiring WBHC to Warfarin, 391 F.3d at 534. These factors are laid out in pay a total of $475,000.00. (Doc. 84, at 5). According to Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), as follows: the Settlement Agreement presently under review, the settlement amount will be distributed as follows: (1) the complexity, expense and likely duration of the litigation; (2) the reaction A. $20,000.00 will be set aside and of the class to the settlement; (3) the stage retained by the Administrator to of the proceedings and the amount of compensate itself for all fees, costs, and discovery completed; (4) the risks of expenses associated with the establishing liability; (5) the risks of [*6] administration of this Settlement. . . . establishing damages; (6) the risks of Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 3 of 7 Page 3 2014 U.S. Dist. LEXIS 63823, *6

maintaining the class action through the particular person. (Doc. 84, at 7). The notice form also trial; (7) the ability of the defendants to informed the class members how to object to the withstand a greater judgment; (8) the settlement. (Id.). However, no member has objected, and range of reasonableness of the settlement only two class members have excluded themselves from fund in light of the best possible recovery; the settlement. (Id.). Therefore, this manifest lack of (9) the range of reasonableness of the objection to the [*8] settlement weighs heavily in favor settlement fund to a possible recovery in of approval. light of all the attendant risks of litigation. 3. Stage of Proceedings and Amount of Discovery Girsh, 521 F.2d at 157 (quoting City of Detroit v. Completed Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal quotations and alterations omitted)). As the This case has already proceeded through extensive Court will now discuss, the large majority of the Girsh discovery and settlement discussions, as well as almost a factors weigh in favor of settlement approval. full day of mediation. (Doc. 84, at 4-5, 10). Furthermore, prior to settlement discussions, the parties retained PwC 1. Complexity, Expense, and Likely Duration of and obtained an analysis report by the company detailing Litigation each class member's specific alleged unpaid overtime amount. At this stage of this litigation, the parties assert The litigation in this case would be complex, that "the respective lawyers [are] well-versed in the expensive, and protracted. Ongoing proceedings in this strengths and weaknesses of Plaintiff's fundamental case would require the Court to address an issue of first argument." (Id. at 11). These facts indicate that each impression in the Pennsylvania federal courts, party had sufficient information to come to an informed specifically, whether the 8/80 overtime calculation settlement agreement and appreciate the merits of this method was permitted under the PMWA prior to July case prior to negotiating the proposed settlement, thereby 2012, as asserted by Defendants. (Doc. 84, at 9). weighing in favor of approval of this factor. Regardless of this Court's decision, this issue would be appealed to the Third Circuit. Defendants also previously 4. Risks of Establishing Liability stated their intention to appeal the [*7] Court's August 2012 ruling that the PMWA permits employees to bring Absent settlement, Plaintiffs faced several risks of private civil actions seeking unpaid overtime premium establishing liability. At the outset, there are the inherent compensation (see Doc. 36). Consequently, the present risks and uncertainties that any plaintiff faces in litigating settlement agreement will save both parties from a case all the way through trial and appeals. Defendants expending a significant amount of further time and could also have prevailed in three other ways, specifically expense in litigation. [*9] by:

Moreover, as a result of this settlement agreement, (i) convincing the Third Circuit to class members will receive $276,000.00 of the reverse this Court's August 2012 holding $394,057.89 in alleged unpaid overtime wages. This that the PMWA permits civil actions for amounts to 70% of the total amount and is possibly more unpaid overtime; (ii) convincing this Court than the members would receive if the litigation were to that the July 5, 2012 amendment to the proceed to trial, even if a court awarded them the full PMWA applies retroactively; and (iii) $394,057.89, after attorney's fees and court costs were convincing this Court that the PMWA paid. (like the FLSA) always has permitted the 8-80 method. This factor, then, weighs in favor of approval. (Doc. 84, at 12). While Plaintiff believes she could defeat 2. Reaction of the Class to Settlement these claims, they still raise serious obstacles to establishing liability. Though the Court expresses no Notice of the settlement was mailed to each class opinion as to the merits of these defenses, it is clear that member and each notice form was individualized to they impose a level of risk in establishing liability that reflect the specific settlement payout amount to that weighs in favor of this settlement. Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 4 of 7 Page 4 2014 U.S. Dist. LEXIS 63823, *9

5. Risks of Establishing Damages share of the total likely damages represents a respectable victory for the class members and therefore favors Given that establishing liability in this case may approval of settlement. require overcoming certain obstacles, it follows that obtaining damages, which can only be assessed after 9. Range of Reasonableness of Settlement Fund in establishing liability, may also prove problematic. The Light of All Attendant Risks of Litigation same arguments that risk precluding liability may likewise result in no, or reduced, damages. Here, class This final factor weighs in favor of approval for all members will receive 70% of the $394,057.89 in total the reasons discussed above. Litigation in this matter unpaid overtime wages. The Court agrees with Plaintiff would have been costly and protracted. It would also that this percentage of recovery "compares favorably to involve at least three independent litigation risks, recoveries achieved and approved in [*10] other 8-80 cross-motions for summary judgment, as well as an class action settlements." (Doc. 84, at 11-12). Therefore, appeal to the Third Circuit. In light of this, a total a 70% recovery is reasonable and fair and this factor settlement of $475,000.00, of which $276,000.00 will be weighs in favor of settlement. paid to the class members, is certainly reasonable and represents an equitable result for the Plaintiff. 6. Risks of Maintaining Class Action throughout Trial III. ENHANCEMENT AWARD TO THE "There will always be a 'risk' or possibility of ORIGINATING PLAINTIFF decertification, and consequently the court can always claim this factor weighs in favor of settlement." In re Class Counsel [*12] requests that a $7,500.00 award Prudential Ins. Co. Am. Sales Practice Litig. Agent be given to Michele Sakalas, the Originating Plaintiff. Actions, 148 F.3d 283, 321 (3d Cir. 1998). Here, this (Doc. 84, at 23). action is at little risk of decertification, and Plaintiff admits that this factor does not favor approval, but argues Factors to consider when assessing that this "should not significantly impact the Court's incentive awards are: (a) the risk to the analysis." (Doc. 84, at 13). Indeed, the Third Circuit has plaintiff in commencing suit, both stated that the "examination of this factor in the standard financially and otherwise; (b) the notoriety class action would appear to be perfunctory." In re and/or personal difficulties encountered by Prudential, 148 F.3d at 321. Therefore, while this factor the representative plaintiff; (c) the extent may only minimally favor approval due to a slight chance of the plaintiff's personal involvement in of decertification, it is of little consequence given the the suit in terms of discovery significant weight of many of the other factors in favor of responsibilities and/or testimony at the settlement. depositions or trial; (d) the duration of the litigation; and (e) the plaintiff's personal 7. Ability of Defendants to Withstand a Greater benefit (or lack thereof) purely in his Judgment capacity as a member of the class.

In this case, the parties agree that WBHS could Godshall v. Franklin Mint Co., 2004 U.S. Dist. LEXIS withstand a greater judgment. [*11] (Doc. 84, at 13). 23976, 2004 WL 2745890, at *6 (E.D. Pa. 2004) (citing Consequently, this factor weighs against approval of the In re Plastic Tableware Antitrust Litig., 1995 U.S. Dist. settlement. LEXIS 18166, 1995 WL 723175, at *2 (E.D. Pa. 1995)). This is not a formal test, but merely represents some of 8. Range of Reasonableness of Settlement Fund in "the reasons courts cite for approving such awards." In re Light of Best Possible Recovery U.S. Bioscience Sec. Litig., 155 F.R.D. 116, 121 (E.D. Plaintiff's recovery is $276,000.00 under the Pa. 1994). settlement agreement from an estimated $394,057.89 in The Sakalas award is included in the proposed most likely recoverable damages at trial. As previously Settlement Agreement. (Doc.83-1, ¶ 6(C)). According to discussed, this equates to a 70% recovery of the class Plaintiff's Unopposed Motion for Final Approval of the members' alleged unpaid overtime. Settling for a sizable Class Action Settlement, Sakalas provided assistance to Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 5 of 7 Page 5 2014 U.S. Dist. LEXIS 63823, *12

counsel and to the class [*13] for over three years by objections by members of the class to the "actively participat[ing] in this litigation, including settlement terms and/or fees requested by attending meetings, providing Class Counsel with counsel; (3) the skill and efficiency of the information, and participating in the settlement attorneys involved; (4) the complexity and conference." (Doc. 84, at 23). Class Counsel further duration of the litigation; (5) the risk of stated during this Court's hearing that Sakalas has also nonpayment; (6) [*15] the amount of time been named in local news stories relating to this case. devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases. The class action itself clearly brought benefits to the class members, and it is likely that the Originating Id. (citing Gunter v. Ridgewood Energy Corp., 223 F.3d Plaintiff's assistance helped counsel prepare, investigate, 190, 195 n.1 (3d Cir. 2000)). "The factors listed above and litigate this matter. For her ongoing participation and need not be applied in a formulaic way. Each case is assistance, Sakalas does deserve a reasonable award. The different, and in certain cases, one factor may outweigh Court believes that the proposed total award of $7,500.00 the rest." Gunter, 223 F.3d at 195 n.1. As discussed (or 1.57%) of a $475,000.00 settlement fund is below, each of the factors weighs in favor of approval in well-deserved and not out of proportion to the level of her the present case. cooperation. Such an award would not significantly reduce compensation for the other class members, nor is 1. Size of the Fund and Number of Persons Benefitted it out of the mainstream for class action service awards in the Third Circuit. See, e.g., Craig v. Rite Aid Corp., 2013 The settlement will result in class members U.S. Dist. LEXIS 2658, 2013 WL 84928, at *13 (M.D. Pa. recovering 70% of the $394,057.89 in the settlement 2013). fund, and will be distributed to 581 of the 583 class members. As previously discussed, this percentage of IV. ATTORNEYS' FEES recovery "compares favorably to recoveries achieved and approved in other 8-80 class action settlements", and the Class Counsel also seeks attorneys' fees and class members would only potentially gain an additional reimbursement for costs and expenses. The Settlement $118,217.00 in unpaid overtime if litigation were to Agreement provides that "the [*14] Administrator will continue. (Doc. 84, at 10, 11-12). Consequently, the large distribute up to $171,500.00 to Class Counsel for any number of people benefited, in addition to the high Court-approved attorney's fees, costs, and expenses." percentage of recovery, weighs in favor of approval. (Doc. 83-1, at ¶ 6(B)). This figure accounts for approximately 27% of the common fund and is 2. Absence of Substantial Objections by Members of comprised of $43,108.32 in out-of-pocket expenses and the Class $128,391.68 in attorney's fees. (Doc. 84, at 15). As discussed above, not a single class member has Structuring attorneys' fees via this objected [*16] to this settlement and only two class "percentage-of-recovery method is generally favored in members have opted out. (Doc. 84, at 17). Accordingly, common fund cases because it allows courts to award this factor weighs heavily in favor of approval. fees from the fund 'in a manner that rewards counsel for success and penalizes it for failure.'" In re Rite Aid Corp. 3. Skill and Efficiency of the Attorneys Involved Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005) (quoting In re Prudential, 148 F.3d at 333. As to the skill and efficiency of the attorneys involved, Class Counsel successfully litigated The Third Circuit has held that a "district court Defendants' Rule 12(c) motion; obtained class should consider seven factors when analyzing a fee award certification; participated with Defendants in jointly in a common fund case." In re Rite Aid, 396 F.3d at 301. retaining and working with PwC; represented the class These factors are: members during settlement discussions and the settlement conference with Judge Blewitt; negotiated and (1) the size of the fund created and the drafted the class action settlement agreement and notice number of persons benefitted; (2) the forms; as well as obtained preliminary approval of, and presence or absence of substantial oversaw, the notice process. Further, class counsel did a Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 6 of 7 Page 6 2014 U.S. Dist. LEXIS 63823, *16

thorough job in identifying potential class members, Consequently, this factor also weighs in favor of notifying individual class members of their potential settlement. recovery, and ultimately negotiating a reasonable settlement that adequately compensates the class. 7. Awards in Similar Cases Accordingly, this factor weighs in favor of approval. As stated immediately above, Class Counsel seeks a 4. Complexity and Duration of Litigation fee representing 27% of the total settlement fund. Counsel's request is consistent with this Court's prior This case involves several potentially complex legal decisions in similar cases as well as with comparable questions, including an issue of first impression in the cases throughout the Third Circuit. Creed v. Benco Pennsylvania federal courts as to whether the PMWA Dental Supply Co., 2013 U.S. Dist. LEXIS 132911, 2013 permitted use of the 8/80 [*17] overtime calculation WL 5276109, at *6 (M.D. Pa. 2013); see also Martin v. method prior to July 2012. Counsel would also have to Foster Wheeler Energy Corp., 2008 U.S. Dist. LEXIS further litigate the issue of whether the PMWA permits 25712, 2008 WL 906472, at *5 (M.D. Pa. 2008) employees to bring private civil actions seeking unpaid (collecting cases). Accordingly, this final factor weighs in overtime premium compensation. favor of approval as well.

The case has been actively litigated for over three 8. Lodestar Cross-Check years, requiring both parties to complete discovery and subsequently undergo settlement discussions and Even after analyzing the above factors, the Third ultimately a settlement conference wherein the present Circuit suggests [*19] that "it is 'sensible' for district agreement was reached. Consequently, the time dedicated courts to 'cross-check' the percentage fee award against to this lawsuit, in conjunction with the legal issues in the 'lodestar' method." In re Rite Aid, 396 F.3d at 305 dispute, weigh in favor of approving this factor. (citing In re Prudential, 148 F.3d at 333). "The lodestar method multiplies the number of hours class counsel 5. Risk of Nonpayment worked on a case by a reasonable hourly billing rate for such services." In re AT&T Corp. Secs. Litig., 455 F.3d Class Counsel represent that they undertook "this 160, 164 (3d Cir. 2006). "The crosscheck is performed by case on a pure contingency basis" and invested $40,000 dividing the proposed fee award by the lodestar in the PwC analysis prior to any settlement agreement. calculation, resulting in a lodestar multiplier." Id. (Doc. 84, at 19). As in all similar cases, the potential for settlement to not occur at all--or to only occur after years In this case, class counsel from W&S testify that of expensive and time-consuming litigation--is a risk that their total fee lodestar is $144,312.50, based on 288.3 class counsel assumed when they decided to take this attorney hours. (Declaration of Peter Winebrake, Doc. case. Counsel's investment, both in time and money, 83-3, at ¶ 25). This results in an aggregate lodestar hourly demonstrates a commitment to this case. Accordingly, billing rate of $500.56. The settlement agreement of this factor weighs in favor of approval. $475,000.00 gives a lodestar multiplier of 3.29.

6. Amount of Time Devoted to the Case by Class The Third Circuit has stated "that multiples ranging Counsel from one to four are frequently awarded in common fund cases when the lodestar method is applied.'" In re Class [*18] Counsel state that Winebrake & Prudential, 148 F.3d at 341 (internal citation omitted). Santillo, LLC ("W&S") invested 288.3 attorney hours in Nonetheless, while all of the reasons previously discussed this litigation and that Dougherty Leventhal & Price, LLP above, including the time expended on this case, the invested an additional 30 hours at minimum. (Doc. 84, at experience of the attorneys, [*20] and the quality of 19). Because Class Counsel incurred $43,108.32 in work, justify Class Counsel's requested fees, out-of-pocket expenses, they now stand to recover 27% significantly, the total lodestar of $144,312.50 is actually of the settlement fund (or $128,391.68). This amounts to greater than Class Counsel's requested fee of an hourly rate of approximately $403.36. In light of the $128,391.68, further justifying approval of counsel's complexity and duration of this case, the time expended proposed fee. in reaching a satisfactory settlement appears reasonable. Case 4:16-cv-00469-MWB Document 52-8 Filed 07/05/17 Page 7 of 7 Page 7 2014 U.S. Dist. LEXIS 63823, *20

V. EXPENSES upon review of Plaintiff's Unopposed Motion for Final Approval of the Class Action Settlement and the Payment "Counsel for a class action is entitled to to Class Counsel of Attorney's Fees and Costs (Doc. 83), reimbursement of expenses that were adequately Settlement Agreement (Doc. 83-1), and supporting documented and reasonably and appropriately incurred in memorandum (Doc. 84), IT IS HEREBY ORDERED the prosecution of the class action." In re Safety THAT: Components, Inc. Sec. Litig., 166 F. Supp.2d 72, 108 (D.N.J. 2001) (citing Abrams v. Lightolier, Inc., 50 F.3d 1. The Settlement Agreement is 1204, 1225 (3d Cir. 1995)). APPROVED as a fair, equitable, and reasonable resolution of a bona fide Here, in addition to attorneys' fees, counsel requests dispute in this contested litigation, and is $43,108.32 as reimbursement for "out-of-pocket incorporated herein by this reference and expenditures," $40,000.00 of which accounts for Class made a part hereof as though set forth in Counsel's payment to PwC for the company's analysis of full. WBHC's pertinent timekeeping and payroll data. (Doc. 84, at 4, 23; Winebrake Dcl., Doc. 83-3, at ¶ 26). Counsel 2. The formula for allocation of has represented to this Court that such a fee is settlement payments set forth in the comparable to that for reports of a similar nature and Settlement Agreement is APPROVED as depth. Further, the report by PwC was essential to the a fair, equitable, [*22] and reasonable litigation, allowing counsel to identify both the measure for distributing the settlement appropriate class members as well as the alleged total payment to the class members. unpaid overtime. Additionally, [*21] $3,108.32 in other out-of-pocket expenses accumulated over a three year 3. The attorney's fees representing time period is a minimal and reasonable amount. $128,391.68 of the settlement fund, the Therefore, the Court finds that these fees were reasonably $43,108.32 in out-of-pocket expenses, and and appropriately incurred in the course of litigation. the enhancement award to Michele Sakalas, as set forth in the Settlement VI. CONCLUSION Agreement are APPROVED and Defendant is hereby ORDERED to make For the reasons discussed above, Plaintiff's payments in accordance with and subject Unopposed Motion for Final Approval of the Class to the terms of the Settlement Agreement. Action Settlement and the Payment to Class Counsel of Attorney's Fees and Costs (Doc. 83) is GRANTED. A 4. This Court shall retain continuing separate Order follows. jurisdiction to enforce the terms of the Settlement Agreement. /s/ Robert D. Mariani

Robert D. Mariani /s/ Robert D. Mariani

United States District Judge Robert D. Mariani

ORDER United States District Judge AND NOW, THIS 8TH DAY OF MAY, 2014, Case 4:16-cv-00469-MWB Document 52-9 Filed 07/05/17 Page 1 of 6

No Shepard’s Signal™ As of: June 22, 2017 3:01 PM Z

Schwartz v. Pa. State Univ.

United States District Court for the Middle District of Pennsylvania April 18, 2017, Decided; April 18, 2017, Filed Case No. 4:15-CV-02176

Reporter 2017 U.S. Dist. LEXIS 58874 * of the FLSA, codified at 29 U.S.C. § 216(b).1 The GIDEON L. SCHWARTZ, TIMOTHY THOMPSON, allegations contained within the Amended Complaint are MICHAEL J. RUSCA, MARK S. HAY, MICHAEL LLOYD as follows. SCHRECENGOST, JOHN JAKOB KAPINUS, and CHARLES JONES, Plaintiffs, v. THE PENNSYLVANIA Plaintiffs, employees within the meaning of Section STATE UNIVERSITY, Defendant. 3(e)(2)(C) of the FLSA, work as Airport Attendants for Defendant Penn State.2 In that capacity, Plaintiffs allege Counsel: [*1] For Gideon L. Schwartz, Timothy L. that Penn State knowingly [*2] takes the benefit of their Thompson, Michael J. Rusca, Mark S. Hay, Michael work during their meal periods and does not Lloyd Schrecengost, John Jakob Kapinus, Charles compensate them for the time spent for their benefit.3 Jones, Plaintiffs: Ryan P Stewart, LEAD ATTORNEY, Plaintiffs specifically state that they perform the Rothman Gordon PC, Pittsburgh, PA. following tasks during their meal periods: For Pennsylvania State University, Defendant: John A. Snyder, McQuaide Blasko Law Offices, State College, (1) Testing gas and jet fuel; (2) Operating fuel- PA. service vehicles; (3) Fueling aircraft; (3) Directing incoming aircraft; (4) Taxiing aircraft; (5) Parking Judges: Matthew W. Brann, United States District aircraft; (6) Cleaning aircraft; (7) Loading baggage; Judge. (8) Unloading baggage; (9) Performing lavatory services on aircraft; (10) Monitoring weather, traffic, Opinion by: Matthew W. Brann field, and airport surface conditions; (11) Recording information in traffic logs; (12) Responding to in- Opinion flight emergencies; (13) Maintaining walks, parking lots, ramps, aprons, taxiways, and runways; (14) Maintaining and repairing vehicles and support equipment; (15) Maintaining and repairing airport MEMORANDUM equipment and facilities; (16) Inspecting equipment, runway, taxiway, lighting; (17) Deicing aircraft; (18) Before the Court for disposition is Defendant The Testing and accepting or rejecting deliveries of Pennsylvania State University's ("Penn State") Motion to supplies; (19) Observing and reporting weather Approve Settlement of claims brought under the Fair conditions; (20) Logging weather information and Labor Standards Act ("FLSA") in this action. The Court maintaining weather systems; (21) Responding to will grant Penn State's Motion. fire or emergency incidents involving crashes or requiring rescue; [*3] (22) Fire-fighting; (23) I. BACKGROUND Patrolling perimeter road, checking for security breaches, ensuring that safes, gates, and doors are On February 2, 2016, Plaintiffs Gideon L. Schwartz, Timothy L. Thompson, Michael J. Rusca, Mark S. Hay, Michael Lloyd Schrecengost, John Jakob Kapinus, and Charles Jones ("Plaintiffs") filed an Amended Complaint 1 Am. Compl. (ECF No. 10). to recover unpaid overtime compensation, liquidated 2 Am. Compl. ¶ 13, at 3. damages, attorneys' fees and costs under Section 16(b) 3 Id. ¶ 15, at 4. Case 4:16-cv-00469-MWB Document 52-9 Filed 07/05/17 Page 2 of 6Page 2 of 6 2017 U.S. Dist. LEXIS 58874, *3

locked, and aircraft secured; (24) Escorting and employee, certain segments of the population contractors or third parties who are performing work required federal compulsory legislation to prevent or providing services on airport property; (25) private contracts on their part which endangered Driving Pennsylvania State University vehicle to national health and efficiency and as a result the free transport students and other personnel to and from movement of goods in interstate commerce."9 The airport or as directed by University-employed provisions of the statute are mandatory and not subject supervisor; (26) Operating the reception desk and to negotiation and bargaining between employers and sales counter; (27) Greeting guests; (28) Answering employees because allowing waiver by employees or questions and arranging for transportation; (29) releases of employers would nullify [*5] the purposes of Answering telephone; (30) Performing general the act.10 housekeeping to maintain airport facilities in a clean and habitable condition; (31) Cleaning and washing Although the United States Court of Appeals for the aircraft; (32) Placing, retrieving, and maintaining Third Circuit has not addressed the issue, its district barricades, flags, reflectors, and lighted flashers to courts have taken the position stated by the Eleventh mark obstructions and hazardous or unserviceable Circuit in Lynn's Food Stores, Inc. v. United States Dept. areas; (32) Observing wildlife and taking any of Labor that court approval is required for proposed required action to mitigate interference by wildlife settlements in a FLSA lawsuit brought under 29 U.S.C. on airport operations; (33) Monitoring in- and out- § 216(b).11 Accordingly, this Court must scrutinize the bound radio communications; and (34) Directing proposed settlement of the parties and determine if it is and assisting work of part-time personnel.4 "a fair and reasonable resolution of a bona fide dispute over FLSA provisions."12 Court review of a proposed Owing to these tasks performed during their meal time, settlement agreement therefore proceeds in two stages: Plaintiffs assert that they actually [*4] work a 42 or 42.5 first, the court assesses whether the parties' agreement hour work week. Therefore, because they are is fair and reasonable to the plaintiff employee; second, compensated for only 40 hours of work, Penn State has it determines whether the settlement furthers or violated Section 7 of the FLSA, or 29 U.S.C. § 207.5 "impermissibly frustrates" implementation of the FLSA in the workplace.13 Defendant Penn State filed an Answer on February 16, 2016, and the parties thereafter engaged in factual Having reviewed the Settlement Agreement reached by discovery.6 On April 4, 2017, Defendant Penn State filed parties, I am satisfied that it is both a "fair and a Motion to Approve Settlement, a supporting brief, and a Joint Declaration of both parties indicating support for this settlement.7 Because the parties jointly request that 9 Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 706-07, 65 the Court approve this settlement, this matter is ripe for S. Ct. 895, 89 L. Ed. 1296 (1945). disposition. 10 See Lynn's Food Stores, Inc. v. United States Dept. of II. DISCUSSION Labor, 679 F.2d 1350, 1352 (11th Cir. 1982); O'Neil, 324 U.S. at 707; D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 66 S. Ct. The FLSA was enacted for the purpose of protecting all 925, 90 L. Ed. 1114 (1946). covered workers from substandard wages and 11 See, e.g., Cuttic v. Crozer-Chester Med. Ctr., 868 F.Supp.2d oppressive working hours.8 Congress recognized that 464 (E.D.Pa. 2012) (Robreno, J.); Morales v. PepsiCo, Inc., "due to unequal bargaining power as between employer Civil Action No. 11-CV-6275, 2012 U.S. Dist. LEXIS 35284, 2012 WL 870752 (D.N.J. Mar. 14, 2012) (Thompson, J.); Bettger v. Crossmark, Inc., Civil Action No. 13-CV-2030, 2015 4 Id. ¶ 16, at 4. U.S. Dist. LEXIS 7213, 2015 WL 279754 (M.D.Pa. Jan. 22, 2015) (Conner, C.J.). 5 Id.. ¶¶ 17, 21, at 4-5. 12 See Lynn's Food Stores, 679 F.2d at 1354; Altenbach v. 6 Answer (ECF No. 12); Order (ECF No. 16). Lube Center, Inc., Civil Action No. 08-CV-02178, 2013 U.S. 7 ECF Nos. 17 & 18. Dist. LEXIS 1252, 2013 WL 74251, at *1 (M.D. Pa. Jan. 4, 2013) (Kane, J.). 8 Barrentine v. Arkansas-Best Freight System, 450 U.S 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981); 29 U.S.C. § 13 Altenbach, 2013 U.S. Dist. LEXIS 1252, 2013 WL 74251, at 202(a). *1. Case 4:16-cv-00469-MWB Document 52-9 Filed 07/05/17 Page 3 of 6Page 3 of 6 2017 U.S. Dist. LEXIS 58874, *5 reasonable resolution of a bona fide dispute over FLSA in light of the best possible recovery; and (9) the provisions," and does not impermissibly frustrate range of reasonableness of the settlement fund to a implementation of the FLSA in the workplace. My possible recovery in light of all the attendant risks of reasoning is as follows. litigation.20

A. The Settlement Agreement is a Fair and Reasonable Consideration of these above Girsh factors dictates that Settlement [*6] of a Bona Fide Dispute. the terms of the settlement agreement are both fair and reasonable. First, the parties have expressed and the As threshold matter, I must first address whether the Court agrees that, because Penn State has put at issue proposed settlement resolves a bona fide factual whether the alleged tasks performed were for their dispute, or one in which "there is some doubt as to primary benefit, continued litigation and discovery in this whether the plaintiff would succeed on the merits at case has the potential to be quite costly and complex.21 trial."14 Having reviewed the pleadings within this Second, I note that the individual employees to this suit matter, I am satisfied that proposed settlement have expressed their assent to the terms of the agreement meets that threshold. Specifically, the parties Settlement Agreement, and said assent has been dispute, in good faith, (1) the amount of work performed memorialized in Joint Declaration of the parties.22 Third, by Plaintiffs during the meal periods,15 (2) whether this per the Court's Order of March 17, 2016, the parties work was actually for the benefit of the Penn State,16 have completed factual discovery and thus are and (3) whether Penn State knew or should have known found [*8] to have an "adequate appreciation of the of the work allegedly performed.17 merits of the case before negotiating."23 Fourth, and Having found the existence of a bona fide dispute, the again owing to the complexity of the case, there is some Court must next examine whether the settlement risk that Plaintiffs would be unable to establish liability agreement represents a fair and reasonable resolution and damages for what they allege are tasks performed of that dispute. To make that determination, district for the primary benefit of Penn State. Fifth, I find that the courts have considered the factors outlined in Girsh v. eighth and ninth factors — the range of both the Jepson,18 concerning the fairness of a proposed class reasonableness of the settlement fund in light of the action settlement.19 In Girsh v. Jepson, the Third Circuit best possible recovery and the attendant risks of set out the following nine factors: litigation—weigh in favor of settlement approval. Penn State has agreed to pay the total amount which Plaintiffs (1) the complexity, expense and likely duration of claim they are owed. While Plaintiffs could recover the litigation; (2) the reaction of the class to the additional damages, this settlement of full payment is settlement; (3) the stage of [*7] the proceedings unquestionably reasonable given the risks attendant in and the amount of discovery completed; (4) the progressing the case toward trial.24 risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) 20 Girsh, 521 F.2d at 157-58. the range of reasonableness of the settlement fund 21 See In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148 F.3d 283, 318 (3rd Cir. 1998). 14 Bettger, 2015 U.S. Dist. LEXIS 7213, 2015 WL 279754, at 22 ECF No. 18-3. *4 (citing, inter alia, Lynn's Food Stores, 679 F.2d at 1354). 23 Craig v. Rite Aid Corp., Civil Action No. 08-CV-2317, 2013 15 See Answer ¶ 41, at 10. U.S. Dist. LEXIS 2658, 2013 WL 84928, at *9 (M.D.Pa. Jan. 7, 2013)(Jones, J.)(citing In re General Motors Corp. Pick-Up 16 Id.. ¶ 16, at 4-5. Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 813 (3rd Cir. 1995)). 17 Id.. ¶ 29, at 7. 24 The risk of maintaining the class throughout trial and the 18 521 F.2d 153, 157 (3d Cir. 1975) ability of defendants to withstand a greater judgment are not applicable factors here as there is no such putative class that 19 See, e.g., Bettger, 2015 U.S. Dist. LEXIS 7213, 2015 WL may be decertified or modified at any time during the litigation, 279754, at *7; Altenbach, 2013 U.S. Dist. LEXIS 1252, 2013 and no evidence regarding Penn State's ability to withstand a WL 74251, at *2. higher judgment. Case 4:16-cv-00469-MWB Document 52-9 Filed 07/05/17 Page 4 of 6Page 4 of 6 2017 U.S. Dist. LEXIS 58874, *8

B. The Settlement Agreement Does Not Impermissibly "[t]he employees agree that . . . they will not Frustrate the Implementation of the FLSA in the disclose the terms of this Agreement to any Workplace. persons . . . The Employees may, without violating this provision, disclose [*10] to others in substance I must now consider whether the terms of the settlement that the matter has been resolved confidentially . . . agreement impermissibly frustrate implementation of the The University recognizes that confidentiality FLSA in the workplace. In this analysis, I must examine provisions in resolution of claims under the FLSA both the release of claims and the confidentiality are disfavored and accordingly, if this provision is 25 provisions of the settlement agreement. breached, the University will not apply or seek a sanction of any kind nor retaliate against any of the Section 2 of the settlement agreement, entitled [*9] Employees of their representatives.29 "Limited Release of Claims," states: Courts have generally found that confidentiality "[t]he employees hereby irrevocably and provisions in FLSA settlement agreements frustrate the unconditionally release . . . any and all charges, implementation of the FLSA in the workplace and complaints, claims, liabilities . . . that fall within the should be stricken from the agreements.30 However, ambit of the Fair Labor Standards Act and the unlike cases in which such provisions have been Equal Pay Act and arise from the facts of the Claim stricken, the instant confidentiality provision contains no that they now have or hereinafter may have by provision allowing for employers to retaliate against reason of any matter occurring prior to the effective employees for breach of this provision. Rather, the 26 date of this Agreement." instant Settlement Agreement allows for Plaintiffs to disclose that the matter "has been resolved In reviewing settlement agreements, courts may "may confidentially, without referencing the specific terms of require litigants to limit the scope of waiver and release the Agreement." Furthermore, the provision also states provisions to 'claims related to the specific litigation' in that, in the event of breach by Plaintiffs, Penn State will order to ensure equal bargaining power between the neither seek sanctions nor retaliate against its parties."27 Here, I find that the instant release provision employees. These averments within the confidentiality is limited in scope and duration to claims arising from provision ensure that its inclusion within [*11] the facts of the instant wage and hour claim which occurred settlement agreement for this case does not frustrate prior to the date of the agreement. This release of the implementation of the FLSA in the workplace.31 claims is therefore properly cabined to the FLSA claim and thus does not frustrate the implementation of the C. The Parties Have Not Submitted Sufficient FLSA.28 Information Allowing the Court to Assess the Reasonableness of Provided Attorneys' Fees. Section 6 of the settlement agreement, entitled "Confidentiality," states: Section 16(b) of the FLSA provides that the court "shall, in addition to any judgment awarded to the plaintiff . . .

29 ECF No. 18-2. 25 See Shimp v. Wildcat, LLC, Civil Action No. 15-CV-1109, 2016 U.S. Dist. LEXIS 52522, 2016 WL 1584013, at *4 30 See, e.g., Brown v. TrueBlue, Inc., Civil Action No. 10-CV- (M.D.Pa. Apr. 20, 2016)(Conner, C.J.) (collecting cases). 00514, 2013 U.S. Dist. LEXIS 137349, 2013 WL 5408575, at 26 ECF No. 18-2. *3 (M.D.Pa. Sept. 25, 2013)(Kane, J.)(citing Brumley v. Camin Cargo Control, Inc., Civil Action No. 08-CV-1798, 2012 U.S. 27 Bettger, 2015 U.S. Dist. LEXIS 7213, 2015 WL 279754, at Dist. LEXIS 40599, 2012 WL 300583, at *3 (D.N.J. Mar. 26, *9 (collecting cases). 2012) (collecting cases)); Altenbach, 2013 U.S. Dist. LEXIS 1252, 2013 WL 74251, at *3. 28 Cf. Bettger, 2015 U.S. Dist. LEXIS 7213, 2015 WL 279754, at *9 (finding a release of claims provision "inappropriately 31 See DiClemente v. Adams Outdoor Advertising, Inc., Civil comprehensive" which precludes plaintiff from "raising any and Action No. 15-CV-0596, 2016 U.S. Dist. LEXIS 88394, 2016 all claims she may have against [defendant] arising prior to the WL 3654462, at *4 (M.D.Pa. July 8, 2016)(Mannion, execution date of the agreement and require her to dismiss J.)(approving a settlement agreement with a confidentiality any charges of discrimination, harassment, or retaliation provision allowing for disclosure of the case's conclusion currently pending with any government agency."). without any allowable sanctions or retaliation for breach). Case 4:16-cv-00469-MWB Document 52-9 Filed 07/05/17 Page 5 of 6Page 5 of 6 2017 U.S. Dist. LEXIS 58874, *11 allow a reasonable attorney's fee to be paid by the (5) the amount of time that was devoted to the case by defendant, and costs of the action."32 Courts within the Plaintiff's counsel.38 They further allege that this fee of Third Circuit have predominantly used the percentage- roughly 33% falls right within the range [*13] of of-recovery method, in which a fixed portion of the attorneys' fees approved by courts in similar cases.39 settlement fund is awarded to counsel, to determine a Having reviewed this Declaration and the above Gunter reasonable attorney's fee in wage and hour cases.33 factors, I am in agreement that the requested attorneys' The factors which the court considers under the fees of $28,558.32, or 1/3 of the settlement amount percentage-of-recovery method to evaluate the reached, is likely reasonable given the facts of the appropriateness of an attorneys' fee aware are: case.40

(1) the size of the fund created and the number of However, the Third Circuit has also suggested that it is persons benefitted; (2) the presence or absence of "sensible" for district courts to "cross-check" the substantial objections by members of the class to percentage-of-recovery calculation with a lodestar the settlement terms and/or fees requested by calculation.41 This crosscheck is performed by dividing counsel; (3) the skill and efficiency of the attorneys the proposed fee award by the lodestar calculation, involved; (4) the complexity and duration of the resulting in a lodestar multiplier."42 To calculate the litigation; (5) the risk of nonpayment; (6) the amount lodestar, the "initial estimate of a reasonable attorney's of time devoted to the case by plaintiffs' fee is properly calculated by multiplying the number of counsel; [*12] and (7) the awards in similar hours reasonably expended on litigation times a 34 cases. reasonable hourly rate."43 Here, despite the These factors need not be applied in a formulaic way, comprehensive nature of the Joint Declaration, counsel and in the Court's analysis, one factor may outweigh the failed to provide information documenting the total time 35 others. The award of attorneys' fees therefore lies expended on the case, or the reasonableness of its squarely within the discretion of the district court, and "a hourly rate. Plaintiffs are therefore directed to file thorough judicial review of fee applications is required in evidence allowing for this lodestar "cross check" within all class action settlements."36 fourteen (14) days of this Order.44

The preliminary application of the above factors weighs in favor of approving the requested attorneys' fees. First, 38 Joint Declaration ¶ 11 (ECF No. 18-2), at 18. I note that the Settlement Agreement provides for attorneys' fees of $28,558.32, which accounts for "one 39 Id.. third (1/3) of the total consideration exchanged in order to resolve this dispute."37 In a Joint Declaration in 40 See, e.g., Chung v. Wyndham Vacation Resorts, Inc., Civil Support of Settlement filed by counsel for both Plaintiffs Action No. 14-CV-00490, 2015 U.S. Dist. LEXIS 77176, 2015 WL 3742187, at *3 (M.D.Pa. June 15, 2015)(Mariani, and Defendant, parties aver that such a fee is J.)(approving attorney's fees which amount to 31.75% of the reasonable given (1) the lack of objection to the fee total settlement amount); Crevatas v. Smith Mgmt. and award by Plaintiffs, (2) the skill and efficiency of the Consulting, LLC, Civil Action No. 3:15-CV-2307, 2017 U.S. plaintiff attorneys involved, (3) the complexity and Dist. LEXIS 40857, 2017 WL 1078174, at *5 (M.D.Pa. Mar. 22, duration of this litigation, (4) the risk of nonpayment, and 2017)(Mannion, J.)(approving attorney's fees which amount to 31.36% of the total settlement amount).

32 29 U.S.C. § 216(b). 41 In re Prudential Ins. America Sales Practice Litig. Agent Actions, 148 F.3d 283, 333 (3d Cir. 1998). 33 Kraus v. PA Fit II, LLC, 155 F.Supp. 3d 516, 533 (E.D.Pa. Jan. 11, 2016). 42 In re AT&T Corp. Sec. Litig., 455 F.3d 160, 164 (3d Cir.2006). 34 Id.. (citing Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n. 1 (3d Cir. 2000). 43 Blum v. Stenson, 465 U.S. 886, 888, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). 35 Id.. 44 See, e.g., Brown, 2013 U.S. Dist. LEXIS 137349, 2013 WL 36 In re Gen. Motors Corp. Pick—Up Truck Fuel Tank Prods. 5408575, at *3; Creed v. Benco Dental Supply Co., Civil Liability Litig., 55 F.3d 768, 819 (3d Cir. 1995). Action No. 12-CV-1571, 2013 U.S. Dist. LEXIS 132911, 2013 37 ECF No. 18-2, at 5. WL 5276109, at *6-7 (M.D.Pa. Sept. 17, 2013)(Mariani, J.). Case 4:16-cv-00469-MWB Document 52-9 Filed 07/05/17 Page 6 of 6Page 6 of 6 2017 U.S. Dist. LEXIS 58874, *13

III. CONCLUSION

Based on the above [*14] reasoning, Defendant's Motion to Approve Settlement of claims brought under the Fair Labor Standards Act ("FLSA") (ECF No. 17) is granted with the exception of the award of attorneys' fees in amount of $28,558.32. Plaintiffs are, however, directed to file evidence supporting their proposed award of attorneys' fees within fourteen (14) days of the date of this Order.

An appropriate Order follows.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

ORDER

AND NOW, in accordance with the Memorandum of this same date, IT IS HEREBY ORDERED THAT:

1. Defendant The Pennsylvania State University's Motion to Approve Settlement of claims brought under the Fair Labor Standards Act ("FLSA")(ECF No. 17) is GRANTED with the exception of the award of attorneys' fees in amount of $28,558.32 (ECF No. 18-2 ¶ 3(c)). 2. In accordance with the standard identified in the memorandum, Plaintiffs are directed to file any evidence supporting their proposed award of attorneys' fees within fourteen (14) days of the date of this Order.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

End of Document Case 4:16-cv-00469-MWB Document 52-10 Filed 07/05/17 Page 1 of 5

Neutral As of: July 5, 2017 1:45 PM Z

Stockport Mt. Corp., LLC v. Norcross Wildlife Found., Inc.

United States District Court for the Middle District of Pennsylvania January 13, 2014, Decided; January 13, 2014, Filed No. 3:11cv514

Reporter 2014 U.S. Dist. LEXIS 3694 *; 2014 WL 131604

STOCKPORT MOUNTAIN CORPORATION, LLC, The underlying case arose from a dispute over the Plaintiff v. NORCROSS WILDLIFE FOUNDATION, interpretation of a Conservation Easement (hereinafter INC., Defendant "the Easement"). On March 18, 2011, Stockport filed a complaint against Norcross seeking a declaratory Prior History: Stockport Mt. Corp., LLC v. Norcross judgment [*2] that the Easement permitted oil and Wildlife Found., Inc., 2014 U.S. Dist. LEXIS 2833 (M.D. natural gas exploration and drilling. Norcross countered Pa., Jan. 10, 2014) with a request for a declaration that the Easement prohibited such activities. After carefully considering the Counsel: [*1] For Stockport Mountain Corporation LLC, parties' arguments, the court granted Norcross summary Plaintiff: John W. Carroll, Pepper, Hamilton & Scheetz, judgment, declaring that the Easement prohibited Harrisburg, PA; Justin G. Weber, Michelle M. Skjoldal, Stockport's proposed natural gas activities. (Doc. 61, Thomas B. Schmidt, III, Pepper Hamilton LLP, Mem. & Order dated Aug. 27, 2013). Harrisburg, PA. For NorcrossWildlife Foundation, Inc., Defendant, The court also granted Norcross' request for reasonable Counterclaim Plaintiff, Robert N. Gawlas, Jr., Rosenn, costs and attorneys' fees pursuant to Section 7.2 of the 1 Jenkins & Greenwald, LLP, Wilkes Barre, PA. Easement. (Id. at 38-39). On September 24, 2013, Norcross submitted a timely application for reasonable For Stockport Mountain Corporation LLC, Counterclaim costs and attorneys' fees. (Doc. 65, Appl. for Defendant: John W. Carroll, Pepper, Hamilton & Reasonable Costs & Atty's Fees). On October 8, 2013, Scheetz, Harrisburg, PA; Justin G. Weber, Thomas B. Stockport objected to Norcross' fee request, bringing the Schmidt, III, Pepper Hamilton LLP, Harrisburg, PA. case to its present posture.

Judges: JAMES M. MUNLEY, United States District Discussion Judge. The Supreme Court has held that costs, attorneys' Opinion by: JAMES M. MUNLEY [*3] fees and expenses may be awarded to a prevailing party in a federal litigation where authorized by statute Opinion or enforceable contract. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Hall v. Cole, 412 U.S. 1, 4, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973). Here, the MEMORANDUM & ORDER Easement, which constitutes an enforceable contract between Norcross and Stockport, expressly provides for Before the court for disposition is Defendant Norcross Wildlife Foundation, Inc.'s (hereinafter "Norcross") application for reasonable costs and attorneys' fees. 1 The "costs of enforcement" provision contained within (Doc. 65). Plaintiff Stockport Mountain Corporation, LLC Section 7.2 of the Easement provides, in relevant part, that (hereinafter "Stockport") filed objections to Norcross' fee "any costs incurred by Grantee [Norcross] in enforcing the request (Doc. 69) making this matter ripe for disposition. terms of this Easement against Grantor [Stockport], including, without limitation, costs of suit, expert witness fees and Background attorneys' fees... shall be born by Grantor." Case 4:16-cv-00469-MWB Document 52-10 Filed 07/05/17 Page 2 of 5Page 2 of 5 2014 U.S. Dist. LEXIS 3694, *3 an award of attorneys' fees and costs to the prevailing Attorney Waldron's fees.2 Where the opposing party party in the event of legal action taken to enforce the objects to the requesting party's calculation of its Easement's terms. Norcross, the prevailing party in the reasonable costs and attorneys' fees, courts within the underlying action, now seeks a total award of Third Circuit first calculate the "lodestar" which is the $184,775.66 in attorneys' fees, costs and expert witness "number of hours reasonably expended on the litigation fees. (Doc. 65, Appl. for Reasonable Costs & Atty's multiplied by a reasonable hourly rate" to determine a Fees ¶ 12). Norcross' fee request is comprised of the reasonable fee. McKenna v. City of Phila., 582 F.3d following: (1) $3,582.06 in costs; (2) $142,776.50 in 447, 455 (3d Cir. 2009) (citing Hensley v. Eckerhart, 461 Rosenn, Jenkins & Greenwald, LLP's (hereinafter U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). "RJ&G") attorneys fees; (3) $19,799.10 in expert To the extent the opposing party seeks to challenge the witness fees; and (4) $18,618.00 in Attorney R. Anthony fees sought, "the opposing party must then object with Waldron's fees. Stockport does not object to Norcross' 'sufficient specificity' to the request." Id. (quoting Rode v. request for costs, RJ&G's fees and expert witness fees Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). A but objects to Attorney Waldron's fees. Thus, the court district court has wide discretion to decrease attorneys' will first address Norcross' costs, RJ&G's fees and fees in light of the objections presented. Rode, 892 F.2d expert witness fees and then address [*4] Waldron's at 1183. fees. Norcross submitted a request for Attorney Waldron's A. No Objections- Costs, RJ&G's Fees and Expert fees in the amount of $18,618.00, which Norcross Witness Fees argues is reasonable given the complexity of the case and the fact that it excluded time billed for matters As previously stated, Norcross seeks $3,582.06 in unrelated to the enforcement of the Easement. costs, $142,776.50 in RJ&G's fees and $19,799.10 in Stockport argues that Waldron's fees should be expert witness fees. Stockport does not object to this excluded from Norcross' total award as excessive or portion of Norcross' fee request. Where the opposing unnecessary because they were not incurred in party fails to object to a fee request, the court is "enforcing" the terms of the Easement. Therefore, the prohibited from reducing, sua sponte, the fee award. As the Third Circuit Court of Appeals has stated: 2 Attorney Waldron's fees break down as follows: [W]hen an opposing party has been afforded the opportunity to raise a material fact issue as to the Go to table1 accuracy of representations as to hours spent, or 1. Pre-litigation services: the necessity for their expenditure, and declines to do so, no reason occurs to us for permitting the trial 38.25 hours at $200.00 per hour court to disregard uncontested affidavits filed by a $7,650.00 fee applicant. 2. Pre-litigation services: Cunningham v. City of McKeesport, 753 F.2d 262, 267 10.10 hours at $180.00 per hour (3d Cir. 1985), vacated on other grounds, 478 U.S. 1015, 106 S. Ct. 3324, 92 L. Ed. 2d 731 (1986), and $1,818.00 reinstated, 807 F.2d 49 (3d Cir. 1986); see also United 3. Post-litigation services: States v. Eleven Vehicles, Their Equip. & Accessories, 32.85 hours at $200.00 per hours 200 F.3d 203, 211-12 (3d Cir. 2000) (stating that "in this circuit, a court may not reduce counsel fees sua sponte $6,570.00 as excessive, redundant or otherwise unnecessary in 4. Consultation to RJ&G: the absence of a sufficiently specific [*5] objection to the amount of fees requested."). Therefore, the court will 22.45 hours at $200.00 per hour award Norcross $146,358.06 in RJ&G's fees and costs $4,490.00 and $19,799.10 in expert witness fees. Totals:

B. Objection to Attorney Waldron's Fees 103.65 hours $20,528.00 Next, the court addresses Stockport's objection to (Waldron [*6] Decl., Ex. 1, pp. 6-18). Case 4:16-cv-00469-MWB Document 52-10 Filed 07/05/17 Page 3 of 5Page 3 of 5 2014 U.S. Dist. LEXIS 3694, *6 court will examine the reasonableness of Waldron's performed in conjunction with RJ&G, was adequate in billable hours and hourly rates. light of the results obtained. None of Waldron's invoices reference hours spent litigating unsuccessful claims, as 1. Reasonable hours the court ultimately entered judgment in Norcross' favor against Stockport. (Doc. 61, Mem. & Order dated Aug. To determine the number of hours used in calculating 27, 2013). These hours were not excessive, redundant the lodestar, courts must review the requesting party's or otherwise unnecessary. Accordingly, the court finds submitted evidence and exclude hours that are that Waldron's hours were reasonable. "excessive, redundant, or otherwise unnecessary." McKenna, 582 F.3d at 455. Despite the calculated 2. Hourly Rates lodestar amount, the court has "discretion in determining the amount of a fee award." Hensley, 461 U.S. at 437. The second matter to be determined in calculating the The discretion extends to an independent review of the lodestar is the reasonable hourly rate. The reasonable requested fees to determine if they were reasonably hourly rate is calculated "according to [*9] the prevailing incurred. Id. at 434. market rates in the community." Smith v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). When The court's independent review of Norcross' invoices determining the proper hourly rate, the court must reveals that Attorney Waldron's hours are reasonable in consider prevailing market rates and the skill and light of the services [*7] rendered and results obtained. experience of the prevailing parties' attorneys. Id. The The court finds that Waldron provided legal services to party seeking attorneys' fees bears the burden of Norcross regarding this matter from its inception through producing sufficient evidence of what constitutes a to its final resolution. Specifically, Norcross first sought reasonable market rate. If a party fails to meet that Waldron's services pertaining to this matter in burden, the district court may exercise its discretion in December 2007 after it received a letter from Stockport fixing a reasonable hourly rate. Washington v. Phila. notifying Norcross of its intent to lease the property for Cnty. Ct. of Common Pleas, 89 F.3d 1031,1036 (3d Cir. surface drilling. (Waldron Decl. ¶ 4). Waldron continued 1996). The district court, however, cannot "decrease a to provide Norcross legal services after the action was fee award based on factors not raised at all by the ultimately filed on March 18, 2011, and through to the adverse party." Rode, 892 F.2d at 1183. date the court granted Norcross summary judgment on August 27, 2013. (Id.) Waldron's legal services in this In the present matter, examination of Norcross' invoices matter included: (1) assisting Norcross' Executive reveal that Waldron billed Norcross for 93.55 hours at Director in drafting her response letter to Stockport's an hourly rate of $200.00 and 10.10 hours at an hourly December 19, 2007 notice, explaining Norcross' rate of $180.00. (Waldron Decl., Ex. 1, pp. 6-18). objection to Stockport's proposed activities; (2) Norcross failed to produce evidence of what constitutes negotiating with Stockport's attorneys regarding a reasonable rate within this locality. Stockport, Norcross' opposition to the proposed activities; and (3) however, has raised no objection to Atty. Waldron's consulting RJ&G regarding the underlying litigation. (Id. hourly rate. As such, we will exercise our discretion in ¶¶ 5-7). As such, the court finds that Waldron's hours fixing a reasonable hourly [*10] rate. expended on this matter are reasonable and adequately reflect the work he performed on behalf of Norcross. The court finds that Waldron's hourly rates are reasonable in light of Waldron's skill and experience. Stockport next argues that [*8] Atty. Waldron's invoices Waldron has provided legal services to Norcross since improperly credit him for services that were duplicative 1998, when he acted as counsel for Norcross regarding of services already provided to Norcross by its other the possible acquisition of the property which is subject counsel, RJ&G. The court, however, finds that to the Easement at issue in this matter. (Waldron Decl. ¶ Waldron's services were not duplicative of those already 3). Waldron's extensive knowledge of the subject matter provided by RJ&G. Rather, Waldron either exclusively of the underlying dispute was utilized by Norcross in its provided his own services or performed supplemental successful enforcement of its rights under the work to assist RJ&G in their litigation preparation. The Easement. The court is satisfied that Waldron's hourly court finds that given the complexity of the issues and rates are consistent with the prevailing rates charged in the duration of the litigation, it was reasonable for this locality for legal services in the area of real estate Norcross' counsel to perform work in a collaborative law by attorneys with similar qualifications and skills. effort. Moreover, it is clear that Waldron's work, Instructive is the current Community Legal Services, Inc. Case 4:16-cv-00469-MWB Document 52-10 Filed 07/05/17 Page 4 of 5Page 4 of 5 2014 U.S. Dist. LEXIS 3694, *10 recommended hourly fee schedule for attorneys working in the Philadelphia area. Brown v. TrueBlue, Inc., 1:10- CV-00514, 2013 U.S. Dist. LEXIS 158476, 2013 WL 5947499 at *2 (M.D. Pa. Nov. 5, 2013). The fee schedule established by Community Legal Services, Inc. "has been approvingly cited by the Third Circuit as being well developed and has been found . . . to be a fair reflection of the prevailing market rates . . ." See Rainey v. Phila. Hous. Auth., 832 F. Supp. 127, 129 (E.D. Pa. 1993). [*11] The court finds that Norcross' suggested hourly rates are generally in line with the range of hourly rates established by Community Legal Services. Accordingly, the court finds that the hourly rate used by Waldron is reasonable and will approve the fee request of $18,618.00.

CONCLUSION

For the reasons set forth above, the court will approve Norcross' proposed fee request in the amount of $184,775.66. Having reviewed Norcorss' documentary evidence, the court finds that its request is reasonable and therefore merits approval. An appropriate order follows.

BY THE COURT:

/s/ James M. Munley

JUDGE JAMES M. MUNLEY

United States District Court

Date: January 13, 2014

ORDER

AND NOW, to wit, this 13th day of January 2014, Defendant Norcross Wildlife Foundation, Inc. is AWARDED $184,775.66 in costs, attorneys' fees and expenses. The Clerk of Court is directed to enter judgment in favor of Defendant Norcross Wildlife Foundation, Inc. and against Plaintiff Stockport Mountain Corporation, LLC in the amount of $184,775.66.

BY THE COURT:

/s/ James M. Munley JUDGE

JAMES M. MUNLEY

United States District Court Case 4:16-cv-00469-MWB Document 52-10 Filed 07/05/17 Page 5 of 5Page 5 of 5 2014 U.S. Dist. LEXIS 3694, *11

Table1 (Return to related document text)

Table1 (Return to related document text)

End of Document Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 1 of 17

Neutral As of: May 5, 2016 5:25 PM EDT

Tavares v. S-L Distrib. Co. United States District Court for the Middle District of Pennsylvania May 2, 2016, Decided; May 2, 2016, Filed 1:13-cv-1313

Reporter 2016 U.S. Dist. LEXIS 57689 ANTONIO TAVARES, on behalf of himself and similarly For Julio Teixeira, on behalf of themselves and all situated employees, Plaintiffs, v. S-L DISTRIBUTION others similarly situated, Plaintiff: Harold L. Lichten, CO., INC., and S-L ROUTES, LLC, Defendants. LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Stephen Churchill, LEAD ATTORNEY, Prior History: Tavares v. S-L Distrib. Co., 2014 U.S. Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Dist. LEXIS 146404 (M.D. Pa., Jan. 14, 2014) Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Santillo, LLC, Dresher, PA; R. Andrew Santillo, Winebrake & Santillo, Counsel: [*1] For Antonio Tavares, on behalf of LLC, Dresher, PA; Matthew Thomson, Lichten & themselves and all others similarly situated, Plaintiff Liss-Riordan, P.C., Boston, MA. Harold L. Lichten, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Stephen Churchill, For Antonio Oliveira, on behalf of themselves and all LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., others similarly situated, Plaintiff: Harold L. Lichten, Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Boston, MA; Stephen Churchill, LEAD ATTORNEY, Santillo, LLC, Dresher, PA; R. Andrew Santillo, Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Winebrake & Santillo, LLC, Dresher, PA; Matthew Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Thomson, Lichten & Liss-Riordan, P.C., Boston, MA. Peter D. Winebrake, Winebrake & Santillo, LLC, Dresher, PA; R. Andrew Santillo, Winebrake & Santillo, For Ito Mosso, on behalf of themselves and all others LLC, Dresher, PA; Matthew Thomson, Lichten & similarly situated, Plaintiff: Harold L. Lichten, LEAD Liss-Riordan, P.C., Boston, MA. ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Stephen Churchill, LEAD ATTORNEY, Lichten & For Angelo [*3] Teixeira, on behalf of themselves and all Liss-Riordan, P.C., Boston, MA; Mark J. Gottesfeld, others similarly situated, Plaintiff: Harold L. Lichten, Winebrake & Santillo, LLC, Dresher, PA; Peter D. LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Winebrake, Winebrake & Santillo, LLC, Dresher, PA; R. Boston, MA; Stephen Churchill, LEAD ATTORNEY, Andrew Santillo, Winebrake & Santillo, LLC, Dresher, Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. PA; Matthew Thomson, Lichten & Liss-Riordan, P.C., Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Santillo, LLC, Boston, MA. Dresher, PA; R. Andrew Santillo, Winebrake & Santillo, LLC, Dresher, PA; Matthew Thomson, Lichten & For Emanuel Tavares, on behalf of themselves and all Liss-Riordan, P.C., Boston, MA. others similarly situated, Plaintiff: Harold L. Lichten, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., For Melquisede Pulinario, on behalf of themselves and Boston, MA; Stephen Churchill, LEAD ATTORNEY, all others similarly situated, Plaintiff: Harold L. Lichten, Lichten & Liss-Riordan, P.C., Boston, MA; Mark [*2] J. LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Boston, MA; Stephen Churchill, LEAD ATTORNEY, Peter D. Winebrake, Winebrake & Santillo, LLC, Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Dresher, PA; R. Andrew Santillo, Winebrake & Santillo, Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; LLC, Dresher, PA; Matthew Thomson, Lichten & Peter D. Winebrake, Winebrake & Santillo, LLC, Liss-Riordan, P.C., Boston, MA. Dresher, PA; R. Andrew Santillo, Winebrake & Santillo, Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 2 of 17 Page 2 of 17 2016 U.S. Dist. LEXIS 57689, *4

LLC, Dresher, PA; Matthew Thomson, Lichten & Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, Liss-Riordan, P.C., Boston, MA. LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Santillo, LLC, Dresher, PA. For S-L Distribution Co., Inc., Defendant: Joel L. Lennen, LEAD ATTORNEY, Eckert, Seamans, Cherin & Mellott, For Antonio Tavares, on behalf of themselves and all Pittsburgh, PA; Adam M. Shienvold, Eckert, Seamans, others similarly situated, Counterclaim Defendant: Cherin & Mellott, Harrisburg, PA; Matthew J Whipple, Harold L. Lichten, LEAD ATTORNEY, Lichten & Eckert Seamans Cherin & Mellott, [*4] LLC, Pittsburgh, Liss-Riordan, P.C., Boston, MA; Stephen Churchill, PA; Michael R Borasky, Eckert Seamans Cherin & LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Mellott, LLC, Pittsburgh, PA. Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & For S-L Routes, LLC, Defendant: Joel L. Lennen, LEAD Santillo, LLC, Dresher, PA; R. Andrew Santillo, ATTORNEY, Eckert, Seamans, Cherin & Mellott, Winebrake & Santillo, LLC, Dresher, PA. Pittsburgh, PA; Adam M. Shienvold, Eckert, Seamans, Cherin & Mellott, Harrisburg, PA; Matthew J Whipple, For Emanuel Tavares, [*6] on behalf of themselves and Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, PA; all others similarly situated, Counterclaim Defendant: Michael R Borasky, Eckert Seamans Cherin & Mellott, Harold L. Lichten, LEAD ATTORNEY, Lichten & LLC, Pittsburgh, PA. Liss-Riordan, P.C., Boston, MA; Stephen Churchill, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., For S-L Routes, LLC, Counterclaim Plaintiff: Joel L. Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, Lennen, LEADATTORNEY,Eckert, Seamans, Cherin & LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Mellott, Pittsburgh, PA; Adam M. Shienvold, Eckert, Santillo, LLC, Dresher, PA. Seamans, Cherin & Mellott, Harrisburg, PA. For Angelo Teixeira, on behalf of themselves and all For S-L Distribution Co., Inc., Counterclaim Plaintiff: others similarly situated, Counterclaim Defendant: Joel L. Lennen, LEAD ATTORNEY, Eckert, Seamans, Harold L. Lichten, LEAD ATTORNEY, Lichten & Cherin & Mellott, Pittsburgh, PA; Adam M. Shienvold, Liss-Riordan, P.C., Boston, MA; Stephen Churchill, Eckert, Seamans, Cherin & Mellott, Harrisburg, PA. LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, For Ito Mosso, on behalf of themselves and all others LLC, Dresher, PA; Peter D. Winebrake, Winebrake & similarly situated, Counterclaim Defendant: Harold L. Santillo, LLC, Dresher, PA. Lichten, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Stephen Churchill, LEADATTORNEY, For Julio Teixeira, on behalf of themselves and all others similarly situated, Counterclaim Defendant: Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Harold L. Lichten, LEAD ATTORNEY, Lichten & Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Liss-Riordan, P.C., Boston, MA; Stephen Churchill, Peter D. Winebrake, Winebrake & Santillo, LLC, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Dresher, PA. Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & For Antonio [*5] Oliveira, on behalf of themselves and Santillo, LLC, Dresher, PA. all others similarly situated, Counterclaim Defendant: Harold L. Lichten, LEAD ATTORNEY, Lichten & For S-L Routes, LLC, Counterclaim Plaintiff: Joel L. Liss-Riordan, P.C., Boston, MA; Stephen Churchill, Lennen, LEAD ATTORNEY, Eckert, Seamans, Cherin LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., [*7] & Mellott, Pittsburgh, PA; Adam M. Shienvold, Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, Eckert, Seamans, Cherin & Mellott, Harrisburg, PA. LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Santillo, LLC, Dresher, PA. For S-L Distribution Co., Inc., Counterclaim Plaintiff: Joel L. Lennen, LEAD ATTORNEY, Eckert, Seamans, For Melquisede Pulinario, on behalf of themselves and Cherin & Mellott, Pittsburgh, PA; Adam M. Shienvold, all others similarly situated, Counterclaim Defendant: Eckert, Seamans, Cherin & Mellott, Harrisburg, PA. Harold L. Lichten, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Stephen Churchill, For Ito Mosso, on behalf of themselves and all others LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., similarly situated, Counterclaim Defendant: Harold L. Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 3 of 17 Page 3 of 17 2016 U.S. Dist. LEXIS 57689, *7

Lichten, LEAD ATTORNEY, Lichten & Liss-Riordan, Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, P.C., Boston, MA; Stephen Churchill, LEADATTORNEY, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Santillo, LLC, Dresher, PA. Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Santillo, LLC, For Julio Teixeira, on behalf of themselves and all Dresher, PA. others similarly situated, Counterclaim Defendant: Harold L. Lichten, LEAD ATTORNEY, Lichten & For Antonio Oliveira, on behalf of themselves and all Liss-Riordan, P.C., Boston, MA; Stephen Churchill, others similarly situated, Counterclaim Defendant: LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Harold L. Lichten, LEAD ATTORNEY, Lichten & Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, Liss-Riordan, P.C., Boston, MA; Stephen Churchill, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Santillo, LLC, Dresher, PA. Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Judges: Hon. John E. Jones III, United States District Santillo, LLC, Dresher, PA. Judge. For Melquisede Pulinario, on behalf of themselves and Opinion by: John E. Jones III all others similarly situated, Counterclaim Defendant: Harold L. Lichten, LEAD ATTORNEY, Lichten & [*8] Liss-Riordan, P.C., Boston, MA; Stephen Churchill, Opinion LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, MEMORANDUM LLC, Dresher, PA; Peter D. Winebrake, Winebrake & Santillo, LLC, Dresher, PA. The Court is in receipt of Plaintiffs' unopposed Motion for Final Approval of the Class Action Settlement, filed For Antonio Tavares, on behalf of themselves and all April 13, 2016. (Doc. 122). A fairness hearing was held others similarly situated, Counterclaim Defendant: in this matter on April 20, 2016. Based on the Harold L. Lichten, LEAD ATTORNEY, Lichten & submissions of the parties and the testimony at the Liss-Riordan, P.C., Boston, MA; Stephen Churchill, hearing, and for the reasons that follow, the Motion shall LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., be granted. Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & I. FACTUAL & PROCEDURAL BACKGROUND Santillo, LLC, Dresher, PA; R. Andrew Santillo, Winebrake & Santillo, LLC, Dresher, PA. Plaintiffs in the above-captioned matter are delivery drivers employed by the Defendants,1 who reside in For Emanuel Tavares, on behalf of themselves and all Massachusetts and make deliveries to stores in others similarly situated, Counterclaim Defendant: Massachusetts. Defendants [*10] are a Delaware Harold L. Lichten, LEAD ATTORNEY, Lichten & corporation with its principal place of business in Liss-Riordan, P.C., Boston, MA; Stephen Churchill, Pennsylvania, as well as its wholly-owned subsidiary, a LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Pennsylvania limited-liability company. They are in the Boston, MA; Mark J. Gottesfeld, Winebrake & Santillo, business of selling snack food products to retail stores, LLC, Dresher, PA; Peter D. Winebrake, Winebrake & and maintain several warehouses in Massachusetts for Santillo, LLC, Dresher, PA. the purpose of distributing certain brands of snack foods. For Angelo Teixeira, on behalf of themselves and all others similarly situated, Counterclaim Defendant: Defendants entered into written Distributor Agreements Harold L. Lichten, LEAD ATTORNEY, Lichten & with each Plaintiff, pursuant to which Plaintiffs were Liss-Riordan, P.C., [*9] Boston, MA; Stephen Churchill, classified as independent contractors. The Agreements LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., also provided that "any disputes or claims which arise

1 In the fairness hearing on April 20, 2016, Defendants noted that they contest this characterization of Plaintiffs, whom they view solely as independent contractors. (Transcript, Doc. 129, p. 12). Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 4 of 17 Page 4 of 17 2016 U.S. Dist. LEXIS 57689, *10 between the parties shall be governed by, subject to, provided in the DistributorAgreements." (Doc. 123, p. 3, and construed in accordance with, the laws of the fn. 6). Commonwealth of Pennsylvania without giving effect to Litigation in this matter continued on for over a year, its conflicts of law or choice of law provisions." (Doc. until the Court [*13] was informed that a settlement had 17-1, p. 21). been reached pursuant to a status report filed by Plaintiffs commenced this action by filing a Class Action Plaintiffs on September 4, 2015. (Doc. 114). An Complaint (Doc. 1-3, pp. 4-11), and later an Amended unopposed Motion for PreliminaryApproval of the Class Class Action Complaint (Doc. 1-3, pp. 13-21), in the Action Settlement and Certification of the Settlement Massachusetts Superior Court. Plaintiffs' claims [*11] Class (Doc. 120) containing the settlement agreement arise from their central contention that, under the as an attached exhibit (Doc. 120-1) (the "Agreement") Massachusetts Wage Act, they should be correctly was granted on December 28, 2015. (Doc. 121). The characterized as employees of Defendants and not Order appointed the law firms of Winebrake & Santillo, independent contractors. The matter was subsequently LLC and Lichten & Liss-Riordan, P.C. as class counsel. removed to federal court and then transferred to this (See id. at ¶ 3). The Order also approved the notice and Court. After Defendants filed an Answer (Doc. 44), claim forms attached to the Agreement as Exhibits B-D Plaintiffs moved for partial summary judgment, seeking and directed the parties to strictly follow their a declaration that Massachusetts law applies to their agreed-upon notice and claim protocols. (Id. at ¶ 4). claims that they were wrongly classified as independent Following that Order, class counsel sent the approved contractors. (Doc. 46).1 Following a full briefing, this forms2 to all the identified class members, thereby Court issued a Memorandum and Order on January 14, affording them an opportunity to participate in, exclude 2014, granting Plaintiffs' Motion. (Doc. 70). However, in themselves from, or object to the terms of the settlement. their brief in support of the instant Motion, Plaintiffs note No class members objected to the terms; however, that "S-L disputes that Massachusetts Law, including seven class members have elected to exclude the Wage Act, properly applies to these claims. Rater, themselves from the settlement, including several S-L asserts that Pennsylvania law applies, as expressly named representatives of the class. (Doc. 123, p. 16).

1 Under the Massachusetts Wage Act, an individual performing services for another is considered to be an employee unless the employer proves, by a preponderance of the evidence, that

(1) the individual is free from control and direction in connection with the performance of [*12] the service, both under his contract for the performance of service and in fact; and

(2) the service is performed outside the usual course of the business of the employer; and,

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

M.G.L. 149 § 148B; see also Somers v. Converged Access, Inc., 454 Mass. 582, 911 N.E.2d 739, 747 (Mass. 2009). In Pennsylvania, courts rely on a common-law test and consider the following factors in determining whether an individual is an employee or an independent contractor:

Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time.

Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 370, 243 A.2d 389 (Pa. 1968). In factual scenarios similar to the instant one, the party claiming the master-servant relationship bears the burden of proving it. See Johnson v. Angretti, 364 Pa. 602, 73 A.2d 666, 669-70 (Pa. 1950).

2 Two slightly different notice and response forms were sent [*14] to the class members depending on whether they are currently engaged in business with the Defendants, or had engaged with them during the relevant claim period but are no longer currently employed. Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 5 of 17 Page 5 of 17 2016 U.S. Dist. LEXIS 57689, *13

As noted above, on April 13, 2016, Plaintiffs filed an must be questions of law or fact common to the unopposed Motion for FinalApproval of the ClassAction class (commonality); (3) the claims or defenses of Settlement, (Doc. 122), as well as a Brief in Support of the representative parties must be typical of the the Motion, (Doc. 123). A fairness hearing was held in claims or defenses of the class (typicality); and (4) this matter on April 20, 2016. For the following reasons, the named plaintiffs must fairly and adequately the Motion shall be granted and the settlement shall be protect the interests of the class (adequacy of approved. representation, or simply adequacy).

II. DISCUSSION Marcus, 687 F.3d at 590-91 (internal quotations and citations omitted). A. Class Certification In the instant case, Plaintiffs seek final class certification As an initial matter, we note that the decision of certain for the class as defined by the parties' Class Action class members, even named class representatives, to Settlement Agreement and Release, that is: exclude themselves from the settlement does not prevent a court from approving a class certification and all individuals who, either individually or through a settlement, so long as the proposed class meets the business entity or entities [*16] in which the requirements established by Rule 23 and the agreement individual had an ownership interest, sold and reached by the parties is fair, adequate and reasonable. distributed snack food products in Massachusetts See Martin v. Foster Wheeler Energy Corp, Civ. Action pursuant to written Distributor Agreements with S-L No. 3:06-CV-0878, 2007 U.S. Dist. LEXIS 92021, 2007 Distribution Co., Inc. and/or S-L Routes, LLC, or WL 4437221, at *6 (M.D.Pa., Dec. 14, 2007) (approving their predecessors, which individuals are listed on a settlement for a class action in which 20 of the 147 Exhibit A of the Agreement. class members excluded themselves); In re Nat'l Football League Players Concussion Injury Litig., F.3d (Doc. 123, p. 13). , 2016 U.S. App. LEXIS 6908, 2016 WL 1552205, at *16 (3d Cir. April 18, 2016) (upholding a district court We begin our analysis with a consideration of ruling in favor of class action certification [*15] and numerosity. The class size here encompasses 224 settlement for over 20,000 class members where 202 individuals, 178 of which have submitted claims.3 (Id., members opted out and 95 objected to the settlement p. 24). This number exceeds the typical numerosity terms). requirement, usually satisfied when "the potential number of plaintiffs exceeds forty." Marcus, 687 F.3d at To establish a class action, a case "must satisfy the four 595. Thus, the class is sufficiently numerous to warrant requirements of Rule 23(a) and the requirements of certification. either Rule 23(b)(1), (2) or (3)." Marcus v. BMW of North America, LLC, 687 F.3d 583, 590 (3d Cir. 2012). The Next we consider the requirement of commonality. "A party seeking the class certification bears the burden of putative class satisfies Rule 23(a)'s commonality establishing each element of the class certification rule requirement [*17] if 'the named plaintiffs share at least by a preponderance of the evidence. Actual, and not one question of fact or law with the grievances of the presumed, conformity with the rule requirements is prospective class.' Baby Neal v. Casey, 43 F.3d 48, 56 essential. Id. at 591. (3d Cir.1994). . . . [T]hat bar is not a high one." Rodriguez, 726 F.3d at 382. "[E]ven a single common i. Rule 23(a) question will do." Reyes v. Netdeposit, LLC, 802 F.3d To satisfy Rule 23 (a), 469, 482 (3d Cir. 2015) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2556, 180 L. Ed. (1) the class must be "so numerous that joinder of 2d 374 (2011). Here, all Plaintiffs, including remaining all members is impracticable (numerosity); (2) there named Plaintiffs Itto Mosso and Jorge Delgado, allege

3 The thirty-nine members who have not filed claims failed to respond to the notice. They will receive a second, thirty-day window in which to file a claim after initial settlement checks are issued, as in class counsel's experience, the distribution of settlement checks often causes other class members to come forward with claims. Once this period has passed, a second distribution of the remaining settlement funds will ensue. (Doc. 123, pp. 16-17). Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 6 of 17 Page 6 of 17 2016 U.S. Dist. LEXIS 57689, *17 that they were misclassified as independent contractors they contested any other) and there appears no reason and that, pursuant to the Massachusetts WageAct, they to find that Plaintiff's interests are antagonistic to those should have been hired by Defendants as employees. of the potential class; indeed, they are willing to settle (See Doc. 123, p. 25). Thus, the success of all their this lawsuit under the same terms and conditions as claims turns on this Court's interpretation of the Act, and those presented to the other class members. whether certain aspects it, critical to Plaintiffs' success, have been preempted by the Federal Aviation There is also no reason to find that Plaintiff's counsel is Administration Authorization Act. Because of this unqualified. Plaintiffs are represented by counsel with common argument, the cases put forth by the class considerable experience in employment rights litigation, members and the named representatives share and counsel has successfully negotiated a large number questions of law and fact that determine their ability to of suits arising under wage and hour laws in the past. receive the requested remedy. Thus, the commonality (See Docs. 122-4, 122-5). Further, though several requirement is easily met. members of the class have opted to exclude themselves from the settlement, we find it notable that those The third 23(a) requirement is typicality. "Typicality . . . members have not objected to the settlement and have derives its independent legal significance from its ability indeed requested that class counsel continue to to screen out class actions in which the legal or factual represent them in Plaintiffs' ongoing independent position of the representatives is markedly different litigation. [*20] (Transcript, Doc. 129, pp. 6-7). Thus, from that of [*18] other members of the class even there is no reason to find that Plaintiff and Plaintiff's though common issues of law or fact are present." counsel have not adequately represented the class. Marcus, 687 F.3d at 598. However, "[i]f the claims of the named plaintiffs and putative class members involve ii. Rule 23(b) the same conduct by the defendant, typicality is established regardless of factual differences." Newton "If the Rule 23(a) requirements are met, then a court v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d must consider whether the class fits within one of the 154, 183-84 (3d Cir. 2001). The briefs and testimony three categories of class actions set forth in Rule 23(b)." heard at the fairness hearing have not indicated that In Re Cmty. Bank of N. Va. Mortg. Lending Practices any class members are situated in a way that is Litig., 795 F.3d 380, 392 (3d Cir. 2015). In this case, markedly different from the class representatives. Plaintiff proposes that the class fits within Rule 23(b)(3), Rather, the named plaintiffs and the class members a category that requires the Court to determine "whether performed materially the same duties and (1) common questions predominate over any questions responsibilities, as all were or continue to be delivery affecting only individual class members (predominance) drivers employed by Defendants. (Doc. 123, p. 26). and (2) class resolution is superior to other available More importantly, they were all subject to substantially methods to decide the controversy (superiority)." In re similar Distributor Agreements, and all allege the same Nat'l Football League, 2016 U.S. App. LEXIS 6908, injury — that the agreements misclassified them as 2016 WL 1552205, at *16 (citing FED. R. CIV. P.23(b)(3)). independent contractors instead of employees. (Id.). "Rule 23(b)(3) includes a nonexhaustive list of factors Thus, they were all subject to the same conduct by pertinent to a court's 'close look' at the predominance Defendants, which impacted all the class members in and superiority criteria." Amchem, 521 U.S. at 615-16 the same way, as they all have the same compensation (citing FED. R. CIV. P. 23(b)(3)). These include: structure. Thus, the typicality requirement is also met. (A) the interest of members of the class in The last 23(a) requirement is adequacy. The Court must individually controlling the prosecution or defense consider whether the class representatives and class of separate actions; (B) the extent and nature of counsel will fairly and [*19] adequately protect the any litigation concerning the controversy already interests of the class. To be an adequate representative, commenced by or against members of the class; "(a) the plaintiff's attorney must be qualified, (C) the desirability or undesirability of concentrating experienced, and generally able to conduct the the litigation of the claims in the particular forum; proposed litigation, and (b) the plaintiff must not have (D) the difficulties likely to be encountered in [*21] interests antagonistic to those of the class." Wetzel v. the management of a class action. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975). Defendants have not contested this point (nor have Id. Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 7 of 17 Page 7 of 17 2016 U.S. Dist. LEXIS 57689, *21 a. Predominance Circuit in Newton, 259 F.3d at 172, emphasized, a class is prime for certification where the essential elements of The predominance requirement "tests whether each class members' claims are identical and proving proposed classes are sufficiently cohesive to warrant them as to one would extend to all. Here too, we find adjudication by representation." Amchem Prods., Inc. v. that the proposed class is sufficiently cohesive such Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 that representation through class action is warranted. L.Ed.2d 689 (1997). This standard is "far more See Amchem, 521 U.S. at 623 (noting that demanding than the commonality requirement of Rule predominance "tests whether proposed classes are 23(a), requiring more than a common claim." In re sufficiently cohesive to warrant adjudication by Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 representation."). (3d Cir.2008) (internal citations omitted). However, courts are "nonetheless 'more inclined to find the b. Superiority predominance test met in the settlement context." In re "Rule 23(b)(3)'s superiority [*23] requirement 'asks the Nat'l Football League, 2016 U.S. App. LEXIS 6908, court to balance, in terms of fairness and efficiency, the 2016 WL 1552205, at *21 (quoting Sullivan v. DB merits of a class action against those of alternative Investments, Inc., 667 F.3d 273, 304, n. 29 (3d Cir. available means of adjudication." In re Nat'l Football 2011) (en banc)). The "nature of the evidence ... League, 2016 U.S. App. LEXIS 6908, 2016 WL determines whether the question is common or 1552205, at *22 (quoting In re Warfarin Sodium Antitrust In re Hydrogen Peroxide individual." , 552 F.3d at 311 Litig., 391 F.3d 516, 534 (3d Cir. 2004)). Here, the class Blades v. Monsanto Co. (citing , 400 F.3d 562, 566 (8th action prevents the litigation of hundreds of duplicative Cir.2005)). "If proof of the essential elements of the lawsuits. Further, without a class action, individual cause of action requires individual treatment, then class plaintiffs' damages amounts could be small enough to Newton v. Merrill Lynch, certification is unsuitable." render separate suits impracticable. See Amchem, 521 Pierce, Fenner & Smith, Inc. , 259 F.3d 154, 172 (3d U.S. at 616 (noting that any interests of individuals in Cir.2001). If common issues that determine liability conducting separate lawsuits "may be theoretic rather predominate, class certification is appropriate even if than practical" where "the amounts at stake for See damages must still be proven individually. individuals may be so small that separate suits would Eisenberg v. Gagnon , 766 F.2d 770, 786 (3d Cir.1985). be impracticable."). In light of this reasoning we find In the context of a predominance analysis, we reiterate that, like the requirements of Rule 23(a), the that the Court's interpretation of the Massachusetts predominance and superiority requirements pursuant Wage Act, and specifically whether certain aspects of to Rule 23(b)(3) are also met. Class certification is thus the Act are preempted by the Federal Aviation appropriate and shall be granted for purposes of Administration Authorization Act, predominates over all effectuating the proposed settlement. of Plaintiffs' claims. The resolution of the preemption [*22] issue will be the same in each case, and will B. Fairness of the Class Action Settlement impact the rights of every class member in the same We move now to consider the terms of the settlement. way. Further, the facts of each case are largely In the instant case, the parties have agreed to a constrained by the Distributor Agreements, which we $2,850,000 non-reversionary settlement fund, from have already described as substantially similar to one which attorneys' fees and expenses are to be paid, as another. While we note that the damages to be awarded well as enhancement awards for the named Plaintiffs in each Plaintiff's claim would require individual and a $5,000 award [*24] to Plaintiff Antonio Oliviera.4 calculation because some Plaintiffs may not have This results in a net fund of $2,070,000, to be distributed worked as frequently or for as many weeks as others, to 178 settlement class members. The average this disparity does not create cause to defeat class individual payout will be approximately $11,692, certification. Importantly, the Agreement provides that determined based on a ratio of weeks the particular all class members' damages awards will be calculated Plaintiff worked compared to the total weeks worked by in the same way, and the only differentiating factor will be the number of weeks that each worked. As the Third

4 The $5,000 award to Plaintiff Antonio Oliveira is to be paid in exchange for releasing the Defendants from claims that were or could have been asserted in his MCAD charge, and/or the cross-filed action in this suit. (See Doc. 120-1, ¶ 5(C)). Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 8 of 17 Page 8 of 17 2016 U.S. Dist. LEXIS 57689, *24 all other claimants during the relevant time period.5 2. The reaction of the class to the settlement; Further, because the fund is non-reversionary, the 3. The stage of the proceedings and the amount of plaintiffs who have opted to exclude themselves from discovery completed; the settlement have perhaps unintentionally benefited the remaining class members. Those who opted out 4. The risks of establishing liability; were set to receive approximately $160,207.21 of the 5. The risks of establishing damages; fund, all of which will now go to the class, and enhance each claimants' award by an average of $900. (Doc. 6. The risks of maintaining the class action through 123, p. 20). trial;

In exchange for the settlement, all class members 7. The ability of the defendants to withstand a release the Defendants from all claims arising through greater judgment; the "Final Approval Date." The ability to reassert a class 8. The range of reasonableness of the settlement action claim in state or federal court is waived. (Doc. fund in light of the best possible recovery; and 123, p. 21). 9. The range of reasonableness of the settlement "Before approving the settlement of a class action, a fund to a possible recovery in light of all the district court must certify that the settlement comports attendant risks of litigation. with Rule 23 and is 'fair, reasonable and adequate.'" Rodriguez v. Nat'l City Bank, 726 F.3d 372, 382 (3d Cir. Girsh v. Jepson, 521 F.2d 153, 158 (3d Cir. 1975). 2013) (quoting FED. R. CIV. P. 23(e)). The Third Circuit Plaintiff's brief indicates that the parties have agreed has advised that that all nine factors weight in favor of a finding that the settlement is fair. As noted above, there [*27] are no where settlement negotiations precede class objectors to the settlement terms or amount. However, certification, and approval for settlement and in "[a]cting as a fiduciary responsible for protecting the certification are sought simultaneously, we require rights of absent class members, the Court is required to district courts to be even "more scrupulous than 'independently and objectively analyze the evidence usual" when examining the fairness of the proposed and circumstances before it in order to determine settlement. This heightened standard [*26] is whether the settlement is in the best interest of those intended to ensure that class counsel has engaged whose claims will be extinguished.'" Hegab v. Family in sustained advocacy throughout the course of the Dollar Stores, Inc., Civ. A. No. 11-1206(CC), 2015 U.S. proceedings, particularly in settlement negotiations, Dist. LEXIS 28570, 2015 WL 1021130, at *5 (D.N.J., and has protected the interests of all class Mar. 9, 2015) (quoting In re Cendant Corp. Litig., 264 members. F.3d 201, 231 (3d Cir. 2001). Our own review, laid out below, indicates that the settlement award is fair, and In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 thus we shall approve it. (3d Cir. 2004) (citing In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 317 (3d Cir. i. The complexity, expense, and likely duration of 1998). In order to assist in this examination, the Third the litigation Circuit has developed a nine factor test. Known as the Girsh Factors, the nine factors a court must consider "The first factor captures the probable costs, in both when determining the fairness of a settlement include: time and money, of continued litigation." Warfarin, 391 F.3d at 535-36 (internal citations and quotations 1. The complexity, expense, and likely duration of omitted). As this case has continued on for over three the litigation; years, the parties have already contributed significant

5 Specifically, each class members' initial payment amount will be calculated from the $2,070,000 remainder of the fund (referred to in the Agreement as the "net settlement amount") by multiplying the net settlement amount by the number [*25] of individual class member's workweeks during the payment period and then dividing that amount by the total combined work weeks of all class members. (See Doc. 120-1, p. 3). Each class member's second payment amount shall be calculated by subtracting the initial payment amount from the net settlement amount, and multiplying that number by the individual claimant's work weeks during the payment period, again divided by all claimants' total combined workweeks. (See Doc. 120-1, p. 4). Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 9 of 17 Page 9 of 17 2016 U.S. Dist. LEXIS 57689, *27 resources in both time and money thus far. If this case F.3d , 2016 U.S. App. LEXIS 6908, 2016 WL were to proceed to trial, both parties would incur even 1552205, at *16 (3d Cir. April 18, 2016) (ruling in favor of greater attorneys' fees and litigation expenses. Plaintiffs' class action certification and settlement for over 20,000 counsel has emphasized that "this lawsuit would require class members where approximately 1.4% of class the Court to resolve complex and hotly-contested legal members either opted out or objected to the settlement issues pertaining to preemption, merits issues, terms). Thus, this second factor also weighs in favor of damages, and the propriety of Rule 23 class approval of the settlement. certification," involving expert testimony, [*28] and competing motions regarding the permissible use of iii. The stage of the proceedings and the amount of "representative" trial testimony. (Doc. 123, p. 30). discovery completed Furthermore, Defendants have already expressed their In order for a settlement to be considered fair, the intent to appeal the Court's summary judgment ruling, in parties must demonstrate '"an adequate appreciation of which we held that Massachusetts law, and not the merits [*30] of the case before negotiating.' In re Pennsylvania law, applies to the proceedings. All of this General Motors Corp. Pick-Up Truck Fuel Tank Prods. would absorb additional time and resources of the Liab. Litig., 55 F.3d 768, 813 (3d Cir. 1995)). To ensure parties. As a result of these concerns, this first factor that a proposed settlement is the product of informed weighs strongly in favor of approval of the settlement, negotiations, there should be an inquiry into the type which would provide immediate and significant benefits and amount of discovery the parties have undertaken." to the settlement class. See Hegab, 2015 U.S. Dist. In re Prudential, 148 F.3d at 319. Here, the parties LEXIS 28570, 2015 WL 1021130, at *5 (noting that submit that they have engaged in extensive discovery where a settlement provides "immediate and substantial in the two years leading up to the settlement. (Doc. 123, benefits for the settlement class," and continued p. 31). Further, they conducted two separate and litigation would be lengthy and expensive, the first Girsh thorough mediation sessions with an experienced factor weighs in favor of settlement). mediator before reaching a settlement. (Id.). This information, as well as a detailed legal analysis of the ii. The reaction of the class to the settlement risks of further litigation for both parties, led both to the The second Girsh factor "attempts to gauge whether conclusion that negotiations were prudent. (Id.). As members of the class support the settlement." In re such, we see no reason to suspect that the parties Prudential Ins. Co. Am. Sales Practice Litig. Agent lacked adequate understanding of the merits of their Actions, 148 F.3d 283, 318 (3d Cir. 1998) (citing Bell Atl. respective positions before entering into negotiations. Corp. v. Bolger, 2 F.3d 1304, 1313 n. 15 (3d Cir. 1993)). We thus find that this factor also points in favor of As noted, there has not been a single objection to the approval of the settlement. settlement. Though seven members have opted to exclude themselves from the settlement (representing iv. The risks of establishing liability and damages 3.1% of the settlement class), Plaintiffs' counsel has represented that they have not done so because they "The fourth and fifth Girsh factors survey the possible [*29] were displeased with the settlement terms as risks of litigation in order to balance the likelihood of pertaining to the class members, but because they feel success and the potential damage award if the case that particular circumstances of their claims entitle them were taken to trial against the benefits of an immediate to significantly greater relief. (See Transcript, Doc. 129, settlement." In re Prudential, 148 F.3d at 319. "However, p. 7; Doc. 123, p. 19). The excluded members intend to in [*31] doing so, a court need not conduct a 'mini-trial litigate their claims independently, as they are entitled and must, to a certain extent, give credence to the to do. We do not find that their decision in any way estimation of the probability of success proffered by negatively reflects on the settlement terms. Further, the class counsel.'" Varacallo v. Massachusetts Mut. Life relatively small percentage of class members that have Ins. Co., 226 F.R.D. 207, 238 (D.N.J. 2005) (citing In re elected to opt out of the settlement does not present a Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, barrier to our approval. See Warfarin, 391 F.3d at 536 181 (E.D. Pa. 2000)). Here, as in the first Girsh factor, (upholding a district court decision to approve settlement Plaintiffs' counsel have assured the Court that they are where a small number of class members objected to or aware of several important risks they face before they opted to exclude themselves from the settlement); In re can establish liability. Again, they point to the appeal Nat'l Football League Players Concussion Injury Litig., that Defendants would likely take regarding this Court's Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 10 of 17 Page 10 of 17 2016 U.S. Dist. LEXIS 57689, *31 decision to apply Massachusetts law. Further, Plaintiffs LEXIS 6908, 2016 WL 1552205, at *25 (quoting In re emphasize the possibility that, if they win on appeal, this Prudential, 148 F.3d at 321). Thus, this factor weighs Court could still find the Massachusetts Wage Act to be only slightly in favor of settlement approval and is preempted. Even if the Act were not preempted, deserving of minimal consideration. Id. (noting that the Plaintiffs would still need to qualify as employees under lower court correctly determined that "the likelihood of the definition provided by that Act. obtaining and keeping a class certification if the action were to proceed to trial . . . deserved only minimal Further, Plaintiffs note that Defendants vigorously consideration."). dispute whether the damages Plaintiffs seek are of the type recoverable under the Act. Plaintiffs' counsel vi. The ability of Defendants to withstand greater currently estimates that Plaintiffs have incurred a total judgment of $6,902,346 in charges and expenses, $4,232,192 of which are due to "route loan repayments." This This Girsh factor considers "whether the defendants distinction is important because the route loan could withstand a judgment for an amount significantly repayments [*32] go towards the ownership of a distinct greater than the [s]ettlement." In re Warfarin, 391 F.3d delivery route, which can be sold by Plaintiffs in the at 537-38 (internal quotations and citations omitted). open marketplace should they no longer wish to perform This factor "is most relevant when the defendant's services under the Distributor Agreements. (Doc. 123, professed inability to pay is used to justify the amount of p. 11). Thus, the payments Plaintiffs made to Defendants the settlement." In re Nat'l Football League, 2016 U.S. have arguably caused Plaintiffs to build equity and App. LEXIS 6908, 2016 WL 1552205, at *25-26. Where receive value, in that the routes represent an asset. a defendant [*34] does not claim the potential for Defendants plan to argue that as such, Plaintiffs are not financial instability as a justification for the size of the entitled to receive damages in exchange for these settlement, courts have found this factor to be neutral. payments, as they are not of the type protected by the Id.; see also Haught v. Summit Resources, Wage Act. (Id.). If these arguments are meritorious, it 1:15-cv-0069, 2016 U.S. Dist. LEXIS 45054, 2016 WL goes without saying that they could translate into an 1301011, at *17-18 (M.D.Pa April 4, 2016). Here, outcome where the Plaintiffs would be entitled to receive Defendants have not asserted an inability to pay any substantially less than they feel they are owed, or more than the settlement amount. Thus, we find here nothing at all. In weighing the risks of these potential too that this factor weighs neither for nor against outcomes against the immediate and definite settlement approval of the proposed settlement. the class would enjoy, it is clear that this factor too weighs in favor of the Court's approval of the proposed vii. The range of reasonableness of the settlement settlement. fund in light of the best possible recovery and all the attendant risks of litigation v. The risks of maintaining the class action through trial The last two Girsh factors ask whether the settlement is reasonable in light of the best possible '"Because the prospects for obtaining certification have recovery and the risks the parties would face if the a great impact on the range of recovery one can expect case went to trial. In order to assess the to reap from the [class] action, this factor measures reasonableness of a proposed settlement seeking [*33] the likelihood of obtaining and keeping a class monetary relief, "the present value of the damages certification if the action were to proceed to trial."' Hegab, plaintiffs would likely recover if successful, 2015 U.S. Dist. LEXIS 28570, 2015 WL 1021130, at *8 appropriately discounted for the risk of not (quoting Warfarin, 391 F.3d at 537). "Under Rule 23, a prevailing, should be compared with the amount of district court may decertify or modify a class at any time the proposed settlement. during the litigation if it proves to be unmanageable." In re Prudential, 148 F.3d at 321. However, "[i]n a In re Prudential, 148 F.3d at 322 (quoting G.M. Trucks, settlement class, this factor becomes essentially 55 F.3d at 806)). As the lower court noted in In re 'toothless' because 'a district court need not inquire Prudential, to calculate the best possible settlement for whether the case, if tried, would present intractable Plaintiffs would be "exceedingly speculative," management problems . . . for the proposal is that there particularly given the significant risks of [*35] litigation be no trial.'" In re Nat'l Football League, 2016 U.S. App. presented here and Defendant's propositions regarding Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 11 of 17 Page 11 of 17 2016 U.S. Dist. LEXIS 57689, *35 the attenuation of Plaintiffs' claims. Id. Plaintiffs' counsel wherein courts approved enhancement [*37] awards emphasizes that the settlement procures 30% of the ranging from $1,000 to $50,000. Id. at *257-58 total alleged losses for Plaintiffs, and 77% of the alleged (approving $10,000 enhancement awards for five losses "not attributable to the especially vulnerable named plaintiffs, and $3,000 and $1,000 awards for two Route Loan Repayments." (Doc. 123, p. 38). We are others). However, "incentive awards will not be freely thus persuaded that the settlement is reasonable in distributed without a substantial basis to demonstrate light of the best possible recovery for Plaintiffs, and that the individual provided services for the Class and conclude that the final two Girsh factors weigh in favor incurred risks during the course of the litigation." Id. at of settlement approval. 258.

This concludes our analysis of the nine Girsh factors. Here, parties explain that the two named Plaintiffs have Seven of the nine factors weigh strongly in favor of been "reliable and diligent" in their assistance to counsel approving the proposed settlement, while the fifth and throughout the class action. (Doc. 123, p. 39). sixth factors (the risks of maintaining the class action Furthermore, at the fairness hearing, counsel for through trial, and the ability of the Defendants to Plaintiffs explained that, in his experience, there is often withstand a greater judgment) are either not as strongly great hesitation on the part of plaintiffs to come forward persuasive in favor of approval, or neutral. As such, we in these types of class actions, as they fear negative find that the majority of the factors weigh in favor of repercussions in the employment market. (Transcript, approval of the proposed settlement, and that our Doc. 129, p. 4). In this age of information technology, approval is therefore warranted. future employers can quickly become aware of a plaintiff's involvement in employment rights litigation. Enhancement Awards. Rightly or wrongly, plaintiffs, and particularly delivery drivers, often fear they will not find work after the The parties' proposed settlement agreement provides litigation is resolved, due to their involvement. (Id. at pp. for a $15,000 enhancement award for each of the two 4-5). Thus, the requested enhancement awards serve the class representatives [*36] who have not opted to not only to compensate Mssrs. Mosso [*38] and Delgado exclude themselves from the class: Mssrs. Mosso and for their participation, but also to reward them for their Delgado. (Doc. 123, p. 39). Thus, $30,000 in total is to bravery in bringing this litigation forward, as it has be detracted from the settlement fund in order to procure resulted in beneficial effects for a large class of drivers. these enhancement awards. "Courts routinely approve The rewards further incentivize other drivers to incentive awards to compensate named plaintiffs for the participate in other meritorious litigation in the future. services they provided and the risks they incurred during Finally, we note that the proposed enhancement awards the course of the class action litigation." Hegab v. Family do not fall outside of those awards previously approved Dollar Stores, Inc., 2015 U.S. Dist. LEXIS 28570, 2015 by courts in similar cases, though they may perhaps be WL 1021130, at *16 (internal quotations and citations on the higher range of the spectrum of approved awards. omitted) (approving an enhancement award of $7,500 See Varacallo, 226 F.R.D. at 257-58. Given the to the named plaintiff). '"An incentive payment to come foregoing analysis, the Court finds that Plaintiffs are from the attorneys' fees awarded to plaintiff's counsel entitled to their requests. need not be subject to intensive scrutiny, as the interests of the corporation, the public, and the defendants are D. Attorneys' Fees not directly affected.'" Varacallo, 226 F.R.D. at 257 (quoting In re Cendant Corp. Derivative Action Litig., "Athorough judicial review of fee applications is required 232 F.Supp.2d 327, 344 (D.N.J. 2002)). However, where in all class action settlements." In re General Motors an enhancement award would be paid solely from the Corp., 55 F.3d 768, 819 (3d Cir. 1995). Rule 23(h) settlement fund, thereby depleting the financial provides that "[i]n a certified class action, the court may resources of the class members, a court "carefully award reasonable attorney's fees and nontaxable costs reviews this request to ensure its fairness to the class." that are authorized by law or by the parties' agreement." Id. Such is the case here. FED. R. CIV. P. 23(h). "The awarding of fees is within the discretion of the Court, so long as the Court employs the A thorough history exists on the approval of reasonable proper legal standards, follows the proper procedures, enhancement awards. In Varacallo, the District Court and makes findings of fact that are not clearly for the District of New Jersey amply detailed this history, erroneous." Hegab, 2015 U.S. Dist. LEXIS 28570, 2015 Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 12 of 17 Page 12 of 17 2016 U.S. Dist. LEXIS 57689, *38

WL 1021130, at *10 (citing In re Cendant Corp. PRIDES reasonable under the percentage-of-recovery method. Litig., 243 F.3d 722, 727 (3d Cir. 2001)). In the instant Known as the Gunter/Prudential factors, these are: case, Defendants agree to pay attorneys' fees in the amount of $750,000, [*39] which includes settlement 1. The size of the fund and the number of persons administration expenses and litigation costs in the benefited; amount of $15,745. (Doc. 123, p. 39-40). Thus, the total 2. Whether members of the class have raised payment to Plaintiffs' attorneys in exchange for their substantial objections to the settlement terms or fee services amounts to $734,255. (Id.). proposal; "Relevant law evidences two basic methods for 3. The skill and efficiency of the attorneys involved; evaluating the reasonableness of a particular attorneys' fee request—the lodestar approach and the 4. The complexity and duration [*41] of the litigation; percentage-of-recovery approach." Hegab, 2015 U.S. 5. The risk of nonpayment; Dist. LEXIS 28570, 2015 WL 1021130, at *11 (internal quotation marks and citation omitted). "The lodestar 6. The amount of time devoted to the case by method is generally applied in statutory fee shifting Plaintiffs' counsel; cases and 'is designed to reward counsel for 7. The fee awards in similar cases; undertaking socially beneficial litigation in cases where the expected relief has a small enough monetary value 8. The value of benefits attributable to the efforts of that a percentage-of-recovery method would provide class counsel relative to the efforts of other groups, inadequate compensation.'" Id. (citing In re Cendant such as government agencies conducting Corp., 243 F.3d at 732). The lodestar is also preferable investigations; where "the nature of the settlement evades the precise 9. The percentage fee that would be been evaluation needed for the percentage of recovery negotiated had the case been subject to a private method." In re Gen. Motors, 55 F.3d at 821; see also In contingent fee arrangement at the time counsel re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 300 (3d Cir. was retained; 2005). However, "[t]he percentage-of-recovery method is preferred in common fund cases, as courts have 10. Any innovative terms of settlement. determined 'that Class Members would be unjustly In re Diet Drugs, 582 F.3d 524, 541 (3d Cir. 2009). "Trial enriched if they did not adequately compensate counsel courts must 'engage in a robust assessment of the responsible for generating the fund.'" Hegab, 2015 U.S. [Gunter/Prudential] factors when evaluating a fee Dist. LEXIS 28570, 2015 WL 1021130, at *11 (quoting request.'" Id. (quoting In re Rite Aid, 396 F.3d at 302). Varacallo, 226 F.R.D. at 249 (internal quotation marks "'Determining an appropriate award, however, is not an [*40] and citation omitted)). The Court has discretion to exact science.'" Varacallo, 226 F.R.D. at *248 (internal decide which method to employ. citation omitted). With this guidance in mind, we consider The parties submit, and we concur, that in the instant each factor in turn. case the percentage-of-recovery method is preferable to evaluate the reasonableness of the attorneys' fee i. The size of the fund and number of persons request. Here, there is a clearly delineated common benefited fund which lends itself well to valuation. Further, the fund is also not so small that a percentage-of-recovery "In considering the size of the expected recovery under method would not be sufficient to compensate Plaintiffs' the proposed settlement, . . . percentage awards attorneys.Also, the percentage-of-recovery method has generally decrease as the amount of the recovery functioned here to incentivize counsel to obtain the increases. . . . The basis for this inverse relationship is maximum possible recovery in the shortest time possible the belief that '[i]n many instances the increase [in given the circumstances, as it is meant to do. See recovery] is merely a factor of the size of the class and Varacallo, 226 F.R.D. at 249. Thus, we shall proceed has no direct relationship [*42] to the efforts of counsel."' under the percentage-of-recovery method. In re Prudential, 148 F.3d at 339 (quoting In re First Fidelity Bancorporation Secs. Litig., 750 F.Supp. 160, There are ten factors that the Third Circuit has identified 164 n. 1 (D.N.J.1990)). In Erie Cnty. Retirees Ass'n v. in considering whether an attorneys' fee award is Cnty. of Erie, 192 F.Supp.2d 369, 381 (W.D.Pa. 2002), Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 13 of 17 Page 13 of 17 2016 U.S. Dist. LEXIS 57689, *42 the court noted that in class action settlements worth counsel are experienced in litigating and settling millions of dollars, the attorneys' fees are often limited consumer class actions. Class counsel obtained to 25% of the settlement value "in order to prevent a substantial [*44] benefits for the class members— . . . a windfall to counsel." Id. In cases where the recovery consideration that further evidences class counsels' exceeds $100 million, courts have found that further competence. Thus, this factor also weighs in favor of decrease in the percentage of guaranteed attorneys' approval of the fee award."); Haught v. Summit fees may be warranted. Id. at 331 (noting that the Resources, 1:15-cv-0069, 2016 U.S. Dist. LEXIS 45054, district court "found a range of 4.1% to 17.92% in cases 2016 WL 1301011, at *9 (same). where the recovery exceeded $100 million."). iv. The complexity and duration of the litigation As already noted, the class size here is 224, with 178 claims filed, and the size of the fund is $2,850,000.00, This factor is identical to the first Girsh factor. As noted from which attorneys' fees, litigation costs and there, this case has stretched on for over three years. enhancement awards are to be subtracted. By Plaintiffs' Despite this timeline, it is clear that many unresolved calculation, this fund results in an average individual and hotly contested issues remain. As noted in our payout of $11,692 and a median payout of roughly consideration of the Girsh factors, Defendants have $10,444. (Doc. 123, p. 41). Thus, the number of already expressed their intent to file an appeal of at individuals who must be compensated from the fund least one matter in this case, and both parties have are not so numerous that their recovery will not be indicated the strength of their arguments and their significant, and the size of the fund is well within the willingness to diligently pursue each matter. This, range that previous case law has found amenable to a combined with the uncertainty and complexity of many 25% attorneys' fee award. Here, the total amount of of the legal issues presented, see Schwann v. FedEx attorneys' fees amounts to 25.76% of the fund, thereby Ground Package System, Inc., Civ. Action No. [*43] avoiding a windfall. We thus find that the 11-11094-RGS, 2014 U.S. Dist. LEXIS 15533, 2014 WL percentage of the fund is facially reasonable and 496882, at *3 (D. Mass. Feb. 7, 2014) ("[T]he question counsels in favor of approving the proposed attorneys' of whether business expenses and deductions borne fees request. by employees are recoverable under the Wage Act us unsettled under state law. . . ."), indicates that this factor ii. Whether members of the class have raised also weighs in favor of approval of the attorneys' fees. substantial objections to the settlement terms or fee proposal v. The risk of nonpayment

As already discussed in our consideration of the Girsh Here, the parties note [*45] that Plaintiffs' counsel factors, the members of the class have not raised a always works on a contingency fee basis. (Doc. 123, p. single objection to any portion of the settlement 41). Thus, the risks inherent in litigation extend to the agreement, including the settlement terms or the fee uncertainty surrounding whether counsel will receive proposal. Though not overly significant, this absence payment and, as continually noted, the Plaintiffs have nonetheless causes this factor to weigh in favor of indicated that though they believe a favorable outcome approval of the requested attorneys' fees. See Erie is merited, it is by no means a certainty. Indeed, courts Cnty., 192 F.Supp.2d at 379 ("Given the complexity of have noted that where plaintiffs' counsel faces a risk of the analysis with respect to the attorneys' fees request, nonpayment or lesser payment should the case proceed we will afford some, albeit not significant, weight to the to the trial phase, that risk should be considered when lack of objections."). assessing attorneys' fee awards. See Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 199 (3d Cir. iii. The skill and efficiency of the attorneys involved 2000) ("[T]he risk that counsel takes in prosecuting a client's case should also be considered when assessing As noted above, class counsel are skilled and a fee award."); In re Lucent Technologies, Inc., experienced litigators who have handled complex Securities Litig., 327 F.Supp.2d 426, 438 (D.N.J. 2004) employment rights class actions numerous times before. ("[T]he intrinsically speculative nature of this contingent Thus, this factor also weighs in favor of approving the fee case enhances the risk of non-payment and bolsters requested attorneys' fees. See Hegab, 2015 U.S. Dist. the Court's analysis"). As such, this factor weighs in LEXIS 28570, 2015 WL 1021130, at *12 ("[C]lass favor of approving the proposed attorneys' fees. Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 14 of 17 Page 14 of 17 2016 U.S. Dist. LEXIS 57689, *45 vi. The amount of time devoted to the case by who, while conducting contemporaneous diet drugs Plaintiffs' counsel litigation in Texas state courts, obtained millions of pages of discovery from Wyeth and took 43 depositions Plaintiffs' counsel submits that they have spent 776 before a single deposition took place in the MDL."). attorney hours working on the instant case. (Doc. 123, Here, however, Plaintiffs' counsel has clarified that there p. 42; see Doc. 122-4; Doc. 122-5). The amount of time is no such preceding case against Defendants, and no Plaintiffs' counsel devoted to the case is thus in line with comparable government or agency litigation exists to that which other courts [*46] have found to favor provide guidance or comparison to the work of counsel. approval of proposed fee awards. See Hegab, 2015 (Transcript, Doc. 129, p. 8). Thus, we find that this factor U.S. Dist. LEXIS 28570, 2015 WL 1021130, at *13 neither weighs for nor against approval [*48] of the (finding that over 1,000 hours of contingent work over requested fee award. the course of three years weighed in favor of approval). We arrive at the same conclusion and find that this ix. The percentage fee that would have been factor too supports approval of the fee award. negotiated had the case been subject to a private contingent fee arrangement vii. The fee awards in similar cases This analysis requires the Court to evaluate "whether "There is no consensus on what percentage of a the requested fee is consistent with a privately common fund is reasonable, although several courts in negotiated contingent fee in the marketplace. 'The this circuit have observed that percentage of recovery percentage-of-the-fund method of awarding attorneys' fee awards generally range from 19% to 45%, with 25% fees in class actions should approximate the fee [that] being typical." Erie Cnty., 192 F.Supp.2d at 378 would be negotiated if the lawyer were offering his or (approving a fee award of 38% of the total fund); see In her services in the private marketplace.'" Hegab, 2015 re Lucent, 327 F.Supp.2d at 438 ("While percentages U.S. Dist. LEXIS 28570, 2015 WL 1021130, at *14 awarded have varied considerably, most awards range (quoting In re Remeron Direct Purchaser Antitrust Litig., 'from nineteen percent to forty-five percent of the 2005 U.S. Dist. LEXIS 27013, *44-45, 2005 WL settlement fund'" ) (quoting In re Cendant Corp., 243 1362974). At the fairness hearing, Plaintiffs' counsel F.3d at 736). Here, the parties have proposed an noted that counsel would typically charge a 33% attorneys' fee award that constitutes approximately 25% contingency fee, as is customary in standard industry of the total fund. This is in line with the percentage that practice. (Transcript, Doc. 129, p. 8). As 33% is has been considered typical in the past, and thus this obviously a greater amount than the 25% attorney fee factor too weighs in favor of approval. award Plaintiffs' counsel are now requesting, we find that this factor also points in favor of approval of the viii. The value of benefits attributable to the efforts proposed fee. of class counsel, relative to the efforts of other groups x. Innovative terms of settlement

This factor seeks to compare the actions of government In certain cases, a district court may find that "class prosecutions and agency litigation to the instant [*47] counsels' representation and the results achieved [by private litigation. See In re Diet Drugs, 582 F.3d 524, the settlement agreement] were 'nothing short of 544 (3d Cir. 2009) (discussing "the typical antitrust or remarkable.'" See In re Prudential, 148 F.3d 283, 339. securities litigation — in which the Gunter/Prudential Particularly where a settlement involved "innovative" or factors are often considered — where government unique terms, such a finding may be [*49] warranted. Id. prosecutions frequently lay the groundwork for private (describing the findings of the lower court regarding litigation."). Specifically, the Third Circuit has explained plaintiffs' counsels' work on the settlement, including that comparing a case to other similar cases can give "the availability of full compensatory relief, the extensive plaintiffs' counsel a "litigation roadmap" such that their and comprehensive outreach, and the multi-tiered work is less arduous. Id. In In re Diet Drugs, this factor review process designed to ensure fair scoring of was specifically addressed in the context of another claims," among other characteristics). Here, Plaintiffs' case being litigated in Texas against the same counsel worked diligently to procure a monetary defendant, Wyeth, which preceded that of the Third settlement for the class, but also to establish a Circuit plaintiffs. Id. (noting the "contributions of lawyers "cost-effective dispute resolution provision" for those Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 15 of 17 Page 15 of 17 2016 U.S. Dist. LEXIS 57689, *49 currently employed with S-L. (Doc. 123, p. 21). factor weighs in favor of approving the proposed Specifically, it became apparent to counsel that most of attorneys' fee agreement. their clients live and work in Massachusetts, but their DistributorAgreements contain a choice of forum clause Thus concludes our analysis of the ten fee award that restricts any dispute to resolution by the reasonableness factors. "The fee award Pennsylvania courts, without any provision for mediation reasonableness factors 'need not be applied in a or arbitration at all. (Id.). Because Plaintiffs' disputes formulaic way' because each case is different, 'and in tend to be based in contract-law, they are well-suited to certain cases, one factor may outweigh the rest.'" In re arbitration. (Id., p. 22). They are also generally Diet Drugs, 582 F.3d at 545 (quoting In re AT & T Corp., comprised of relatively "low-value" claims and ill-suited 455 F.3d 160, 166 (3d Cir. 2006)). Here, we determine to formal litigation, (id.), which this Court recognizes that the vast majority of the factors weigh in favor of can be preclusively expensive for some parties, approving the proposed fee award, and that any particularly when they must travel long distances and remaining factors are neutral, and thus do [*52] not take time [*50] off from work to reach the chosen forum. weigh against such approval. Therefore, we hold that Thus, the Plaintiffs still currently working with the requested fee award is fair and reasonable under Defendants lacked an efficient and accessible dispute the percentage-of-recovery method. We turn now to the resolution mechanism. (Id.); (Transcript, Doc. 129, p. lodestar cross check. 10). xi. Lodestar Analysis To remedy this shortfall, Plaintiffs' counsel negotiated for the inclusion of a provision within the Settlement "[I]t is sensible for a court to use a second method of fee Agreement, providing "that any future claims brought by approval to cross check its conclusion under the first a [driver] be submitted to informal resolution and if the method. . . ." In re General Motors, 55 F.3d 768, 820-21 claim is not resolved, then to arbitration, and that the (3d Cir. 1995). Thus, we turn to the lodestar method to ability to assert a class action claim in state or federal ensure that our initial analysis under the court is waived." (Doc. 123, p. 21). The arbitration is to percentage-of-recovery method was not inaccurate. In be conducted in a location near the individual driver's its own cross check, the district court in Hegab provided territory, rather than in Pennsylvania. (Id., p. 21-22). a detailed explanation of the lodestar calculation that Further, Defendants agree to pay all arbitration costs we referenced in our analysis in Haught, 2016 U.S. Dist. beyond a $200 filing fee. (Id., p. 22). Finally, acceptance LEXIS 45054, 2016 WL 1301011, at *11-12. Because of of the arbitration provision is not mandatory for Plaintiffs its clarity, we excerpt from that opinion again here. who still wish to retain the terms of dispute resolution set by the original Distributor Agreements. Rather, The lodestar analysis is performed by "multiplying Plaintiffs are still free to collect their settlement payment the number of hours reasonably worked on a client's even if they choose not to adopt the alternative dispute case by a reasonable hourly billing rate for such resolution provision. (Id., p. 23). To date, three Plaintiffs services based on the given geographical area, the have chosen to opt out of the provision. (Transcript, nature of the services provided, and the experience of the attorneys." In re Rite Aid, 396 F.3d at 305: see [*51] Doc. 129, p. 11). also In re Diet Drugs Prod. Liab. Litig., 582 F.3d The procurement of this provision is a clear example of 524, 540 (3d Cir.2009). When performing this an innovative settlement term that provides Plaintiffs analysis, the Court "should apply blended billing with a right they did not have prior to the settlement. rates that approximate the fee structure of all the Beyond monetary value, the arbitration provision attorneys who worked on the matter." In re Rite Aid. provides current delivery drivers with a quick and 396 F.3d at 306. The lodestar figure is presumptively cost-effective means of addressing any grievance or reasonable when it is calculated [*53] using a disagreement that may arise between themselves and reasonable hourly rate and a reasonable number of Defendants, without resorting to the courts. As no hours. Planned Parenthood of Cent. N.J. v. Att'y employment relationship is perfect, we have no doubt Gen. of N.J., 297 F.3d 253, 265 n. 5 (3d Cir.2002) that such disagreements will indeed arise again, and (citations omitted). After calculating the lodestar Plaintiffs' counsel has done them a great service by amount, the Court may increase or decrease the identifying and remedying this need while all parties amount using the lodestar multiplier. The multiplier were at the bargaining table. As such, we find that this is calculated by dividing the requested fee by the Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 16 of 17 Page 16 of 17 2016 U.S. Dist. LEXIS 57689, *53

lodestar figure. "The multiplier is a device that the comparative reasonableness of the [*55] lodestar attempts to account for the contingent nature or risk multiplier requested here, the Court sees no reason to involved in a particular case and the quality of the determine that a multiplier of 2.29 is too high. Further, in attorneys' work." In re Rite Aid. 396 F.3d at 305-06 light of the somewhat more relaxed standard that the Court need apply in regard to the lodestar analysis as a Hegab, 2015 U.S. Dist. LEXIS 28570, 2015 WL cross-check,8 there appears no indication that our initial 1021130, at *14-15. percentage-of-recovery analysis was erroneous. Thus, We begin by calculating the lodestar figure. The in reliance on the percentage-of-recovery method affidavits of Plaintiffs' counsel indicate that they have conducted above, and the lodestar cross check, this worked a total of 781.1 hours on the matter since its Court concludes that the requested attorneys' fee is fair inception in February 2013.6,7 (Doc. 122-4; Doc. 122-5). and adequate. Counsels' hourly rates include $400-600/hour for senior attorneys, $275 per hour for a junior attorney, and $100 E. Litigation Fees per hour for a paralegal. (Id.). While the Plaintiffs' brief does not provide the "blended" rate that the attorneys In total, Plaintiffs' counsel requests $15,745 in litigation used to calculate their overall lodestar amount of fees and expenses. The firm of Winebrake & Santillo, $320,662, when this amount is divided by the hours LLC, has submitted an itemized list detailing $6,745 in worked, the rate used appears to be approximately costs, including a mediation fee of $5,231.07 and $410.52 per hour, which is reasonable given all of the various photocopying and travel expenses. (Doc. 122-4, rates normally charged and the rates typical for this ¶ 22). Lichten & Liss-Riordan, P.C. has also submitted a geographic region given the experience of the attorneys detailed listing of expenses, including travel and service [*54] involved. Thus, we conclude that the lodestar administrative costs totaling $6,174.80. (Doc. 128). This figure of $320,662 is presumptively reasonable. supplied documentation does not include costs of We next calculate the multiplier. The requested mailing, copying and administration fees that the firm attorneys' fee is $734,255, which, when divided by the estimates at $3,500.00, or travel costs for Attorney lodestar amount, provides lodestar multiplier of 2.29. Lichten's travel to the fairness hearing of April 20, 2016. Accepted multipliers are those up to and including (Id.). "Counsel for a class action is entitled to "slightly above 3." Keller v. TD Bank, N.A., 2014 U.S. reimbursement of expenses that were adequately Dist. LEXIS 155889, 2014 WL 5591033, at *16 (E.D.Pa. documented and reasonably and appropriately incurred Nov. 4, 2014). A lodestar multiplier of 2.75 was recently in the prosecution of the class action." Abrams v. approved in In re Staples Inc. Wage & Hour Employment Lightolier Inc., 50 F.3d 1204, 1224-25 (3d Cir. 1995). Practices Litig., 2011 U.S. Dist. LEXIS 128601, 2011 We find that counsel's expenses were adequately WL 5413221, at *5 (D.N.J. Nov. 4, 2011). However, documented and were reasonably and appropriately courts have declined to implement multipliers of 5.1 and incurred through the course of litigation in this case. 4.07 as these have been found too high. In re Prudential, Thus, we approve the requested litigation fees in the 148 F.3d at 340-41; In re Rite Aid, 396 F.3d at 306. amount of $15,745. Given the risks inherent in contingent work generally, the high quality of the attorneys' work in this case, and F. Notice

6 It appears that there was a typographical error in the submission by Winebrake & Santillo, LLC, and that 442.1 hours (and not 4421 hours) is the correct figure for the hours worked, based on the provided hourly break-down chart. (Doc. 122-4, ¶ 21). This, added to the 339 hours submitted by Lichten & Liss-Riordan, P.C., sums for a total of 781.1 hours.

7 As indicated above, our analysis of comparative case law has already shown this is a reasonable amount of time as compared to time spent on cases of a similar nature and the complexity of the matters involved.

8 "[W]e reiterate that the percentage of common fund approach is the proper method of awarding attorneys' fees. The lodestar cross-check calculation need entail neither mathematical precision nor bean-counting. The district courts may rely on summaries submitted by the attorneys and need not review actual billing records. See Prudential, 148 F.3d at 342 (finding no abuse of discretion where district court "reli[ed] on time summaries, rather than detailed time records"). Furthermore, the resulting multiplier need not fall within any pre-defined range, provided that the District Court's analysis justifies the award. Lodestar multipliers are relevant to the abuse of discretion analysis. But the lodestar cross-check does [*56] not trump the primary reliance on the percentage of common fund method." In Re Rite Aid, 396 F.3d at 305-06. Case 4:16-cv-00469-MWB Document 52-11 Filed 07/05/17 Page 17 of 17 Page 17 of 17 2016 U.S. Dist. LEXIS 57689, *55

Finally, we [*57] briefly consider the notice requirement. "The law favors settlement, particularly in class actions Rule 23(e) provides that "[a] class action shall not be and other complex cases where substantial judicial dismissed or compromised without the approval of the resources can be conserved by avoiding formal court, and notice of the proposed dismissal or litigation. . . . These economic gains multiply when compromise shall be given to all members of the class settlement also avoids the costs of litigating class in such manner as the court directs." FED. R. CIV.PRO. status—often a complex litigation within itself." In re 23(e).As noted above, the Court reviewed and approved Gen. Motors, 55 F.3d 768, 784 (3d Cir. 1995). In light of the parties' proposed notice and claim forms on the foregoing analysis, the Court shall certify the December 28, 2015, as part of the Order granting the proposed class and approve the Settlement Agreement parties' Motion for Preliminary Approval of the Class in its entirety. A separate order shall issue. Action Settlement and Certification of the Settlement Class. (Doc. 121). In Plaintiffs' Brief, Plaintiffs represent ORDER that each Plaintiff was mailed an individualized notice form describing the lawsuit, the total settlement value, In conformity with the Memorandum issued on today's the attorneys' anticipated payments, and also the class date, IT IS HEREBY ORDERED THAT: enhancement awards. (Doc. 123, p. 15). The notice form also provided each Plaintiff with his or her 1. Plaintiff's unopposed Motion for Final Approval of estimated payout amount (presuming that all of the the Class Action Settlement (Doc. 122) is settlement class members returned claim forms). (Id.). GRANTED as set forth in the Court's Memorandum. As noted above, Plaintiffs' counsel also submits that 2. The Clerk of the Court SHALL CLOSE the file on once the initial settlement payments are distributed, this case. class members who did not respond to the initial notice and claim forms will have a second opportunity to file a /s/ John E. Jones III claim. [*58] Given these efforts, the Court has no reason to conclude that notice was not adequately provided to John E. Jones III the class. United States District Judge III. CONCLUSION Case 4:16-cv-00469-MWB Document 52-12 Filed 07/05/17 Page 1 of 5

Waltz v. Aveda Transp. & Energy Servs.

United States District Court for the Middle District of Pennsylvania December 27, 2016, Decided; December 27, 2016, Filed Case No. 4:16-CV-00469

Reporter 2016 U.S. Dist. LEXIS 178474 * and Energy Services Inc. and Rodan Transport USA Ltd RANDY WALTZ, on behalf of himself and similarly ("Defendants") alleging (1) a collective action under situated employees, Plaintiffs, v. AVEDA FLSA Section 16(b)2 for failure to pay an overtime TRANSPORTATION AND ENERGY SERVICES INC., premium as required by 29 U.S.C. § 207(a)(1), and (2) a and RODAN TRANSPORT USA LTD, Defendants. class action under Federal Rule of Civil Procedure 23 for violations of the Pennsylvania Minimum Wage Act.3 Counsel: [*1] For Randy Waltz, on behalf of himself The [*2] instant Motion now seeks conditional and similarly situated employees, Plaintiff: Mark J. certification of a class of 36 individuals pursuant to Gottesfeld, Peter D. Winebrake, R. Andrew Santillo, FLSA Section 16(b).4 For purposes of pertinent LEAD ATTORNEYS, Winebrake & Santillo, LLC, background, the circumstances of Plaintiffs and the Dresher, PA. proposed collective's employment are drawn from both the Complaint and documentation supporting the instant For Gary Solinger, Plaintiff: Mark J. Gottesfeld, Peter D. motion. This factual background reveals the following Winebrake, Winebrake & Santillo, LLC, Dresher, PA. information concerning the employment position at issue. For Aveda Transportation and Energy Services, Inc., Rodan Transport USA Ltd., Defendants: Mark A. Defendants Aveda Transportation and Energy Services Fontana, Eckert Seamans Cherin & Mellott, LLC, Inc. and Rodan Transport USA Ltd employ hundreds of Harrisburg, PA; Clayton M Davis, Robert E Sheeder, employees engaged in various services at oil and gas Bracewell LLP, Dallas, TX. rigs throughout the United States.5 Two of those employees, Plaintiffs Randy Waltz and Gary Solinger, Judges: Matthew W. Brann, United States District were employed by Defendants in the Field Judge. Supervisor/Truck Push ("FSTP") position. Mr. Waltz was employed by Defendants in this role from May 5, 2014 Opinion by: Matthew W. Brann to May 6, 2015,6 and Mr. Solinger from October 2012 through January 2016.7 During their terms of Opinion employment as FSTPs, Plaintiffs were paid on a day rate basis.8 Because they allege that their work week MEMORANDUM

Before the Court for disposition is Plaintiffs Randy Waltz 2 29 U.S.C. § 216(b). and Gary Solinger's ("Plaintiffs") Motion for Conditional Certification pursuant to Section 16(b) of the Fair Labor 3 43 P.S. §§ 333.101 et seq. Standards Act ("FLSA"). For the following reasons, this Motion will be granted. 4 Plaintiffs withdrew their class action allegations pursuant to Federal Rule of Civil Procedure 23 in a Notice of Withdrawal I. BACKGROUND filed on October 31, 2016. See ECF No. 28. 5 Compl. ¶¶ 13-14, at 3. On March 17, 2016, Plaintiff Randy Waltz filed a Complaint1 against Defendants Aveda Transportation 6 Defs.' Resps. to Waltz Interrog. (ECF No. 30-1), at 4. 7 Defs.' Resps. to Solinger Interrog. (ECF No. 30-2), at 4.

1 Complaint (ECF No. 1). 8 Compl. ¶ 16, at 3. Case 4:16-cv-00469-MWB Document 52-12 Filed 07/05/17 Page 2 of 5Page 2 of 5 2016 U.S. Dist. LEXIS 178474, *2 often consisted of greater than 40 hours, Plaintiffs argue be certified conditionally in order to give notice to that Defendants' failure to pay overtime premium the potential class members and to allow for pretrial compensation resulted in a violation of the FLSA.9 discovery regarding the individual claims. (Citation omitted). After the class has been conditionally Through the instant Motion for Conditional [*3] certified, notice and opportunity to opt in has been Certification, Plaintiffs now seek to have conditionally given to the potential plaintiffs, and discovery has certified a collective of employees who worked in the been conducted, the court may then "be asked to Field Supervisor/Truck Push position from October 10, reconsider the conditional class certification to 2013 through October 10, 2016.10 Since its filing on determine whether the 'similarly situated' standard October 31, 2016, this Motion has been fully briefed by has been met.'"17 both parties.11 It is now ripe for disposition. A court is confronted with the second step above in a motion for decertification following the completion of II. DISCUSSION discovery. Aided by the benefit of complete factual record, this step at an advanced stage of litigation Section 16(b) of the FLSA permits employees to bring a entails a higher burden of proof than the initial, private right of action for violations of the statute "[o]n conditional certification.18 behalf of . . . themselves and other employees similarly situated."12 To maintain a collective action under the At an early stage of litigation, however, a court is FLSA, however, a plaintiff must satisfy two concerned with the first step of the "similarly situated" requirements. First, the plaintiff must establish that the analysis—whether a class should be certified collective action group is "similarly situated."13 Second, conditionally in order to give notice to the potential class "similarly situated" group members must affirmatively members and allow for pretrial discovery regarding the opt into the suit through filing a written notice of consent individual claims. [*5] Unlike with the later inquiry, a with the court.14 It is this latter requirement of voluntary plaintiff's burden for conditional certification is "relatively entry which clearly distinguishes the FLSA conditional light" and requires only a "modest factual showing."19 certification process from the traditional class To satisfy this "extremely lenient standard,"20 a plaintiff certification framework of Federal Rule of Civil need only produce "some evidence, 'beyond pure Procedure 23.15 speculation,' of a factual nexus between the manner in which the employer's alleged policy affected her and the While not defined in Section 16(b) of the FLSA, district manner in which it affected other employees."21 Courts courts within the United States Court of Appeals for the typically rely on the pleadings and affidavits of the Third Circuit have developed a two-step procedure to parties to determine the suitability of conditional determine whether potential members [*4] of the certification.22 alleged collective group are "similarly situated."16 These steps proceed as follows:

First, the court must decide whether a class should 17 Id. (quoting Stanislaw v. Erie Indemnity Co., Civil Action No. 07-CV-1078, 2009 WL 426641, at *1 (W.D.Pa. Feb. 20, 2009)). 9 Id. ¶¶ 18-19, at 3-4.

10 Mot. for Cond. Cert. (ECF No. 30). 18 Zavala v. Wal Mart Stores, Inc., 691 F.3d 527, 534 (3d Cir. 2012). 11 ECF Nos. 31, 34, & 35. 12 29 U.S.C. § 216(b). 19 Id. at 536.

20 13 Stone v. Troy Constr., LLC, Civil Action No. 3:14-CV-306, Chung v. Wyndham Vacation Resorts, Inc., Civil Action No. 2015 WL 7736827, at *2 (M.D.Pa. Dec. 1, 2015)(Munley, J.). 3:14-CV-00490, 2014 WL 4437638, at *2 (M.D.Pa. Sept. 9, 2014)(Mariani, J.). 14 Id. 21 Symczk v. Genesis Healthcare Corp., 656 F.3d 189, 192 (3d 15 Craig v. Rite Aid Corp., Civil Action No. 08-CV-2317, 2009 Cir. 2011), rev'd on other grounds, 133 S.Ct. 1523 (2013). WL 4723286, at *2 (M.D.Pa. Dec. 9, 2009)(Jones, J.). 22 Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 16 Id. at 2. F.Supp.2d 411, 415 (D.Del. 2007). Case 4:16-cv-00469-MWB Document 52-12 Filed 07/05/17 Page 3 of 5Page 3 of 5 2016 U.S. Dist. LEXIS 178474, *5

As a result of the modest burden at this stage of Peter [*7] Winebrake dated October 10, 2016.30 Review proceedings, motions for conditional certification are of this evidence supports the following factual findings: generally successful.23 This light burden and the ensuing high rate of success at the conditional 1. Rodan crafted a common job description for the certification stage result because the district court bears Field Supervisor/Truck Push position at the an "insignificant" risk of error by granting the motion. corporate level and employees within that position 31 The Honorable John E. Jones III of this Court aptly were subjected to uniform job expectations. described the justification for this modest burden as 2. Rodan has already identified 36 individuals follows: employed as Field Supervisors/Truck Pushes The burden in this preliminary certification is light between October 10, 2013 and October 10, 2016 because the risk of error is insignificant: should who were paid on a day-rate basis in possible further discovery reveal that the named positions, violation of the FLSA.32 or corresponding claims, are not [*6] substantially similar the defendants will challenge the 3. Rodan classified all day-rate FSTPs as overtime certification and the court will have the opportunity exempt under the Motor Carrier Act Exemption and to deny final certification.24 Highly Compensated Exemption. Invocation of these exemptions creates a common set of legal Furthermore, the United States Court of Appeals for the principles among all 36 individuals requiring Third Circuit has explained that conditional certification 33 of an FLSA collective action claim is not really a examination of common evidence and facts. certification at all, but rather an exercise of the district Taken as a whole, these findings demonstrate a "factual court's discretionary power to facilitate the sending of nexus between the manner in which the employer's notice to potential class members.25 alleged policy affected [the individuals Plaintiffs] and the manner in which it affected other employees."34 In the matter at hand, I find that Plaintiffs have made the Plaintiffs have therefore met the "modest factual "modest factual showing" necessary for conditional showing" necessary to conditionally certify the proposed certification of the proposed collective of 36 individuals collective. employed in the position of Field Supervisor/Truck Push and paid on a day rate basis between October 10, 2013 In opposition to the instant conditional certification, and October 10, 2016. Plaintiffs have specifically Defendants make a series of [*8] arguments concerning presented evidence including (1) the depositions of whether the collective is truly "similarly situated." Timothy Clark (Rodan Transport USA LTD Vice Specifically, Defendants argue that (1) the FSTPs did President)26 and Plaintiffs Randy Waltz and Gary not uniformly perform crucial job duties listed in the job description;35 (2) the mere use of pickups does not Solinger;27 (2) Defendants' Responses to both the Waltz make all FSTPs similarly situated;36 (3) Rodan's and Solinger Interrogatories;28 (3) a job description by classification of FSTPs as exempt is not a basis for Defendant Aveda Transportation and Energy Services for the Field Supervisor/Truck Push position;29 and (4) a Letter from Attorney Robert Sheeder to Attorney 30 ECF No. 30-6.

31 See "Field Supervisor/Truck Push" Job Description (ECF 23 Craig, 2009 WL 4723286 at *2 (citing Woodard v. FedEx No. 30-7); Waltz Dep. (ECF No. 30-4) at 36:21-37:5, 286:22- Freight East, Inc., 250 F.R.D. 178, 191 (M.D.Pa. 287:8; Solinger Dep. (ECF No. 30-5) at 38:5-38:21, 279:16- 2008)(Vanaskie, J.). 279:22.

24 Id. 32 See Sheeder Letter (ECF No. 30-6).

33 25 Halle v. West Penn Allegheny Health Sys. Inc., 842 F.3d See generally Pl.'s Br. in Supp. of their Mot. for Cond. Cert. 215, 224 (3d Cir. 2016). (ECF No. 31) at 6-13.

26 ECF No. 30-3. 34 Symczk, 656 F.3d at 192.

27 ECF Nos. 30-4 & 30-5. 35 Def.'s Br. in Opp. to Pl.'s Mot. for Cond. Cert. (ECF No. 34), 28 ECF Nos. 30-1 & 30-2. at 10. 29 ECF No. 30-7. 36 Id. at 12. Case 4:16-cv-00469-MWB Document 52-12 Filed 07/05/17 Page 4 of 5Page 4 of 5 2016 U.S. Dist. LEXIS 178474, *8 finding they are similarly situated;37 and (4) Plaintiffs fail Second, Defendants' argument concerning a potential to demonstrate that other FSTPs desire to join this lack of interest has no merit at this stage of litigation. As suit.38 These arguments, however, obscure the scope of noted by Plaintiffs, no controlling case law within the the instant inquiry and ask the Court to engage in a Third Circuit creates such a requirement. [*10] 42 merits-based analysis. Furthermore, having reviewed the case law cited by Defendants, I am in agreement with the reasoning set Concerning Defendants' first two arguments, I note that forth in Lucke v. PPG Indus., Inc. concerning this issue. Plaintiff's burden at this stage of litigation is to adduce a 43 In that case, the Honorable Arthur J. Schwab of the "modest factual showing" in support of conditional United States District Court for the Western District of certification and not, as intimated by Defendants, secure Pennsylvania first noted that the case law regarding this a judgment outright on the merits of the collective proposition largely hailed from outside the Third Circuit 39 action. Throughout their briefing, Defendants attempt and was not binding.44 Next, that court factually to draw the Court into a deep analysis of potential distinguished many of these cases based on the subtleties between individuals employed as FSTPs. presence of "evidence of affirmative disinterest in the Because this analysis would necessarily heighten the lawsuit by other employees."45 In the instant matter, burden needed to achieve conditional certification, Defendants have similarly failed to cite binding Defendants are directed to preserve same for the precedent requiring a showing of interest. Moreover, no second step of the "similarly situated" [*9] analysis. At such "affirmative disinterest" by potential collective that stage of litigation, the Court will likely benefit from members has been noted. Therefore, based on these the completion of factual discovery. distinctions, I believe any persuasive authority potentially derived from the case law cited by Defendants' next two arguments in opposition to Defendants is negated. conditional certification are similarly unpersuasive. First, Defendants' argument that Rodan's classification of Having reviewed parties' briefing and the attached FSTPs as exempt should not be considered in the factual record, I am satisfied that Plaintiffs have made instant inquiry is not compelling given Plaintiffs' the "modest factual showing" necessary at this stage of production of other evidence. Specifically, although litigation. My determination leaves largely unaddressed Defendants cite In re Morgan Stanley Smith Barney LLC the various merits-based arguments advanced [*11] by 40 Wage & Hour Litig. as support for this argument, I Defendants. Such determinations are more properly note that a full reading of this opinion reveals that preserved for the second-step of the "similarly situated" conditional certification was denied due to an utter analysis. paucity of factual support other than the FLSA exemption classification.41 Here, conditional certification III. CONCLUSION is based on independent factual support as outlined above together with the FLSA exemption classification. Based on the above reasoning, Plaintiffs Randy Waltz As such, In re Morgan Stanley is factually and Gary Solinger's Motion for Conditional Certification distinguishable from the instant matter and an opposite pursuant to Section 16(b) of the Fair Labor Standards finding results. Act ("FLSA") will be granted.

An appropriate Order follows.

BY THE COURT: 37 Id. at 14.

38 Id. at 15.

42 39 Neal v. Air Drilling Assoc., Inc., Civil Action No. 3:14-CV- Pl.'s Br. in Supp. of their Mot. for Cond. Cert. (ECF No. 31) 1104, 2015 WL 225432 at *3 (M.D.Pa. Jan. 16, 2015)(Munley, at 5 (citing, inter alia, Lucke v. PPG Industries, Inc., Civil J.) ("At the step-one inquiry, the court does not weigh the Action No. 13-CV-0966, 2013 WL 6577772, at *3 (W.D.Pa. evidence, resolve factual disputes, or reach the merits of Dec. 16, 2013)). plaintiff's claims."). 43 Lucke, 2013 WL 6577772 at *3. 40 Civil Action No. 11-CV-3121, 2016 WL 1407743, at *8 (D.N.J. Apr. 11, 2016)(Martini, J.). 44 Id.

41 Id. 45 Id. Case 4:16-cv-00469-MWB Document 52-12 Filed 07/05/17 Page 5 of 5Page 5 of 5 2016 U.S. Dist. LEXIS 178474, *11

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

ORDER

AND NOW, in accordance with the Memorandum of this same date, IT IS HEREBY ORDERED THAT

1. Plaintiffs Randy Waltz and Gary Solinger's Motion for Conditional Certification (ECF No. 30) is GRANTED;

2. This action is conditionally certified, pursuant to Section 16(b) of the Fair Labor Standards Act on behalf of the following collective: The 36 individuals already identified by Defendants as being employed by Rodan Transport USA Ltd in the position of Field Supervisor/Truck Push and paid on a day-rate basis between October 10, 2013 and October 10, 2016. Such individuals are referred to herein as "Putative Collective Members;"

3. Within seven (7) business days of the entry of this Order, the parties must jointly submit to the Court proposed language for a notification form to be approved [*12] by the Court informing all Putative Collective Members of their right to join this action as party plaintiffs. In drafting the proposed notification language, the parties should "be scrupulous to respect judicial neutrality" and "take care to avoid even the appearance of judicial endorsement of the merits of the action." Hoffman- LaRoche Inc. v. Sperling, 493 U.S. 165, 174 (1989); and

4. Within seven (7) business days after the entry of this Order, Defendants must produce to Plaintiffs' counsel an Excel spreadsheet listing the name, last known address, and last known phone number of all Putative Collective Members.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

End of Document