CLASS REPRESENTATIVE ENHANCEMENTS AND
ATTORNEYS FEES IN WAGE AND HOUR CLASS ACTION
SETTLEMENT AGREEMENTS ON THE WEST COAST
American Bar Association
Labor and Employment Section Annual Meeting
Seattle, WA
November 3, 2011
Laura L. Ho
Goldstein, Demchak, Baller, Borgen & Dardarian
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
www.gdblegal.com
This paper focuses on class representative enhancements and attorneys fees in wage and
hour class action settlements on the west coast, particularly in California and the Ninth Circuit.
Once a class case has been settled, both of these categories of payments are usually “unopposed”
by the defendant. However, the court reviewing the settlement has an independent duty to
determine whether the payments are reasonable so Class Counsel will need to submit
documentation and justification for the requested awards. Along with published legal authority,
practitioners should be aware of local rules and practices of the court in which their class action
settlement will be subject to the approval process. For example, one northern district court judge
has issued specific rules for his court on the approval process, and many of the California
complex departments have their own court rules.
A.
Class Representative Payments
When there is a wage and hour class action settlement, Class Representatives are often
awarded extra “incentive” or “service” payments to compensate them for the extra work they
performed and risks they took on in bringing the case and in creating a class fund. Awarding
such service awards is well within a court’s sound discretion.1
Class representatives are “entitled to some compensation for the expense he or she
incurred on behalf of the class lest individuals find insufficient inducement to lend their names
and services to the class.”2 Courts frequently award service payments to named plaintiffs who
1
See In re Mego Financial Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000); Thornton v. East
Texas Motor Freight, 497 F.2d 416, 420 (6th Cir. 1974) (“We also think there is something to be
said for rewarding those drivers who protest and help to bring rights to a group of employees
who have been the victims of [unlawful employment practices]”).
2
In re Oracle Sec. Litig. 1994 WL 502054, at *1 (N.D. Cal. June 18, 1994).
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expend time and effort on behalf of the class. California courts similarly will award such service
awards.3
Additionally, service awards to non-class representative plaintiffs such as declarants or
deponents are permissible where they made contributions or assumed risks that are not shared by
the class as a whole.4 Such a “payment is not particularly unfair to other class members, given
that it will not significantly reduce the amount of settlement funds available to the rest of the
class.”5
In evaluating the propriety of service payments, courts consider relevant factors including
the following: (1) the time and effort put into the litigation and the degree to which the class has
benefited from those actions; (2) the duration of the litigation; (3) a comparison between the
service awards and the range of monetary recovery available to the class; (4) whether the
litigation will further the public policy underlying the statutory scheme; and (5) risks to the class
representatives in participating in the lawsuit, including financial exposure, retaliation, and
negative notoriety related to the lawsuit.6 A named plaintiff’s perseverance in pursuing a matter
beyond the trial court supports the award of a reasonable service award.7
Courts also evaluate the amount of service payments by comparing the overall benefits of
the settlement and the range of recovery available to the class with the representative plaintiffs’
service awards.8 The purpose of this inquiry is to ensure that the service payments have not
compromised the ability of the plaintiffs to act in the best interest of the class.9 A greater
3
Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715, 726 (2004) (upholding “service
payments” to named plaintiffs for their efforts in bringing the case); Clark v. American
Residential Services LLC, 175 Cal. App. 4th 785, 804 (2009) (review of cases holding that
named plaintiffs are generally entitled to a service award for initiating the litigation on behalf of
absent class members, taking time to prosecute the case, and incurring financial and personal
risk).
4
See Trujillo v. City of Ontario, 2009 WL 2632723, at *5 (C.D. Cal. Aug. 24, 2009) (awarding
service awards of $10,000 to non-representative plaintiffs).
5
West v. Circle K Stores, Inc., 2006 WL 1652598, at *12 (E.D. Cal. June 13, 2006).
6
See Staton v. Boeing Co., 327 F. 3d 938, 977 (9th Cir. 2003); Cook v. Niedert, 142 F.3d 1004,
1015-16 (7th Cir. 1998); Van Vranken, 901 F. Supp. at 299 (citations omitted); Ingram, 200
F.R.D. at 694; Roberts, 979 F. Supp. at 202.
7
See Rausch v. Hartford Financial Services Group, 2007 WL 671334, at *3 (D. Or. Feb. 26,
2007).
8
See, e.g. Ingram, 200 F.R.D. at 694; Roberts, 979 F. Supp. at 204.
9
Roberts, 979 F. Supp. at 204 (approving service payments of between $2,500 and $85,000
where individual awards ranged from $60,000 to $80,000 and common fund totaled $115
million); Ingram, 200 F.R.D. at 694 (awarding $300,000 service awards where average
individual award was $38,000 and common fund was over $100 million).
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2
discrepancy between the service award and the average class member award is justified where
the service award constitutes a small percentage of the gross settlement.10 Service awards to
plaintiffs in wage and hour cases promote the important public policies underlying the wage and
hour laws. FLSA was enacted to protect workers from the poor wages and oppressive working
hours that can result from the unequal bargaining power between employers and employees.11
California also has strong public policies in favor of enforcing minimum labor standards for
12
workers, and other states’ public policies should be addressed in any settlement approval
briefing as well. Another factor considered by Courts is the risk taken by named plaintiffs in
bringing legal action against their employer.13 Even where there is not a record of actual
retaliation, class representative plaintiffs merit recognition for assuming the risk of retaliation for
the sake of class members.14
B.
Attorneys Fees
Both state and federal law have fee shifting provisions for prevailing plaintiffs in wage
and hour class and collective actions. The FLSA provides that “[t]he court in [an FLSA] action
shall, in addition to any judgment awarded to the Plaintiff or Plaintiffs, allow a reasonable
attorney’s fee to be paid by the Defendant, and costs of the action.”15 Similarly, plaintiffs are
entitled to an award of reasonable attorneys’ fees and costs under California, Washington, and
Oregon laws.16
10
See, e.g., In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 463 (approving incentive award of
$5,000.00 to two plaintiff representatives of 5,400 potential class members in $1.75 million
settlement, but constituting only 0.56% of the settlement); Sandoval v. Tharaldson Employee
Mgt., Inc., 2010 WL 2486346, at *10 (C.D. Cal. June 15, 2010) (approving service award of
$7,500 where average class member award was $749.60 but service award was 1% of the gross
settlement).
11
See Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 739 (1981).
12
See, e.g., Cal. Lab. Code § 90.5(a) (“it is the policy of this state to vigorously enforce
minimum labor standards in order to ensure employees are not required or permitted to work
under substandard unlawful conditions….”).
13
See Roberts, 979 F. Supp. at 201-202 (“In discrimination-based litigation, the plaintiff is
frequently a present or past employee whose present position or employment credentials or
recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his
or her name and efforts to the prosecution of litigation at some personal peril”); Cook, 142 F.3d
at 1016.
14
See Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005).
15
29 U.S.C. § 216(b) (emphasis added); 28 U.S.C. § 1920.
16
See California (Cal. Lab. Code §§ 218.5, 218.6, 226.7, 1194 and Cal. Code of Civ. Proc. §
1021.5); Washington (R.C.W. §§ 49.52.070); Oregon (O.R.S. §§ 652.200(2), 653.055(4)); and
Illinois (820 I.L.C.S. 105/12(a)).
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3
A plaintiff prevails for purposes of a fee award, if she “has succeeded on ‘any significant
issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit.’”17 A
plaintiff is a prevailing party where she obtains a successful settlement.18
Courts in the Ninth Circuit and California use either a percentage of the fund and/or a
lodestar multiplier approach in determining the reasonable attorneys’ fees to be awarded, and
often employ a cross check by comparing the results of both methods.
1.
Percentage of the Fund
Courts have long recognized that counsel have an equitable right to be compensated to a
reasonable fee from the fund for their successful efforts in creating it.19 Accordingly, there has
been a “ground swell of support for mandating the percentage-of-the-fund approach in common
fund cases,” such that the Ninth Circuit now prefers the fee-spreading approach in common fund
cases.20
Among the factors considered in determining whether the requested percentage fee is
reasonable are: (1) the results achieved; (2) the risk of litigation; (3) the skill required and the
quality of work; (4) the contingent nature of the fee and the financial burden carried by the
plaintiffs; and (5) awards made in similar cases.21
17
Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-792 (1989) (quoting
Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)); see Hensley v. Eckerhart, 461 U.S.
424, 433 (1983) (same).
18
See Farrar v. Hobby, 506 U.S. 103, 111 (1992); Maria P. v. Riles, 43 Cal. 3d 1281, 1290-91
(1987); Westside Cmty. For Indep. Living, Inc. v. Obledo, 33 Cal. 3d 348, 352-53 (1983).
19
See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).
20
Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19, 27, 31 (2000); see also Wershba, 91 Cal.
App. 4th at 254; Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19, 26-30 (2000); Serrano v.
Priest, 20 Cal. 3d 25, 34 (1977) (“[W]hen a number of persons are entitled in common to a
specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the
creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney’s fees
out of the fund.”)
21
Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000); Vizcaino v. Microsoft Corp., 290 F. 3d
1043, 1048-50 (9th Cir. 2002). In the settlement approval context, the reaction of class members
should also be considered. See Singer v. Becton Dickson & Co., No. 08-cv-821, 2010 WL
2196104, at *9 (S.D. Cal. June 1, 2010); see also Wershba, 91 Cal. App. 4th at 250-51; 7-Eleven
Owners, 85 Cal. App. 4th at 1152-53.
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4
The Ninth Circuit uses a 25% “benchmark,” that can be adjusted upward or downward as
appropriate.22
Numerous courts have held that the accepted range of percentage recoveries from a
common fund is within 20%-50% of the fund.23 Fifty percent (50%) of the fund serves as an
upper limit on percentage recoveries from a common fund.24
Those who criticize the amount of such awards should understand that absent
counsel’s efforts there would be no fund; and even despite counsel’s efforts, in
some cases there is no success and thus no fee, no matter how much time and
effort was expended. The good result should be rewarded, because the poor result
will go uncompensated.
In re First Fidelity Bancorporation Sec. Litigation, 750 F. Supp. 160, 164 (D.N.J. 1990).
2.
Lodestar/Multiplier
Traditionally, the lodestar method is used to determine an award of reasonable fees.25
Courts routinely exercise their discretion to calculate attorneys’ fees by applying the lodestar
22
See, e.g., Six (6) Mexican Workers v. Az. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)
(the “benchmark percentage should adjusted, or replaced by a lodestar calculation, when special
circumstances indicate that the percentage recovery would be either too small or too large in
light of the hours devoted to the case or other relevant factors”).
23
See, e.g., Cicero v. DirectTV, Inc., 2010 WL 2991486, * 7 (C.D. Cal. July 27, 2010) (“Other
case law surveys suggest that 50% is the upper limit, with 30-50% commonly awarded in cases
in which the common fund is relatively small.”); Williams v. Costco Wholesale Corp., 2010 WL
2721452, * 6 (S.D. Cal. July 7, 2010) (“Fifth, the request for attorneys’ fees in the amount of 25
percent of the common fund falls within the typical range of 20 to 50 percent awarded in similar
cases …”); Chesher v. Neyer, 2007 WL 4553908, at *2 (S.D. Ohio Dec. 19, 2007) (noting that in
the Sixth Circuit, “the percentage awarded typically ranges from 20 to 50 percent of the common
fund”); Pavlidis v. New England Patriots Football Club, 675 F.Supp. 707, 710 (D. Mass. 1987)
(“Fees in the 20%-50% range in common fund class actions are not uncommon and have been
held to be reasonable.”); In re Warner Communications Securities Lit., 618 F.Supp. 735
(S.D.N.Y. 1985) (“Traditionally, courts in this Circuit and elsewhere have awarded fees in the
20%-50% range in class actions.”); Williams v. Costco Wholesale Corp., 2010 WL 2721452, * 6
(S.D. Cal. July 7, 2010); Singer v. Becton Dickinson, 2010 WL 2196104, * 8 (June 1, 2010)
(collecting cases in which 40% of a wage and hour common fund were awarded).
24
See, e.g., Camden I Condominium Assn. v. Dunkle, 946 F.2d 768, 774-75 (11th Cir. 1991)
(“To avoid depleting the funds available for distribution to the class, an upper limit of 50% of the
fund may be stated as a general rule, although even larger percentages have been awarded.”);
Rubenstein, Conte and Newberg, Newberg On Class Actions (4th ed. 2002), § 14:6 at 550
(“Usually 50 percent of the fund is the upper limit on a reasonable fee award from a common
fund to assure that fees do not consume a disproportionate part of the recovery obtained for the
class, though somewhat larger percentages are not unprecedented.”).
25
Fischer v. SJB-P.D. Inc., 214 F.2d 1115, 1119 (9th Cir. 2000).
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method where the settlement does not use common-fund principles.26 In addition, the Ninth
Circuit has expressly recognized the propriety of using the lodestar method of calculating a
reasonable fee where the settlement amount or fund is relatively small, a great deal of litigation
has taken place, and the settlement of injunctive relief claims makes it difficult to ascribe a
specific monetary value to the overall benefit that a class settlement confers on the class.27
“The ‘lodestar’ is calculated by multiplying the number of hours the prevailing party
reasonably expended on the litigation by a reasonable hourly rate.”28 There is a “strong
presumption” that the lodestar is the reasonable fee.29 In “rare cases,” the lodestar may be
adjusted upward or downward on the basis of other relevant factors not subsumed in the lodestar
calculation.30 The ultimate goal is to arrive at a fee that compensates Plaintiffs’ attorneys by the
same standards that would apply to comparable private attorneys for litigation of similar
difficulty and importance.31
Where a plaintiff has achieved “excellent results,” a fully compensatory fee should be
awarded and there should be no reduction in the lodestar.32 The Ninth Circuit has held that in
determining whether an “excellent result” has been achieved, the court must consider the totality
of the relief including not only money damages, but also any “significant nonmonetary results
achieved.”33
26
Staton, 327 F.3d at 972; Hanlon, 150 F.3d at 1029.
27
See, e.g., Hanlon, 150 F.3d at 1029 (affirming use of lodestar method to determine fees with
respect to a settlement that was based on a combination of money damages and injunctive relief,
and stating “In employment, civil rights and other injunctive relief class actions, courts often use
a lodestar calculation because there is no way to gauge the net value of the settlement or any
percentage thereof.”); Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311
(9th Cir. 1990) (“[t]he benchmark percentage should be adjusted, or replaced by a lodestar
calculation, when special circumstances indicate that the percentage recovery would be either too
small or too large in light of the hours devoted to the case or other relevant factors.”).
28
Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008).
29
See, e.g., Morales v. City of San Rafael, 96 F.3d 359, 363, fn 8 (9th Cir. 1996).
30
Gates v. Deukmejian, 987 F.2d 1392, 1402 (9th Cir. 1993).
31
Blum v. Stenson, 465 U.S. 886, 893 (1984).
32
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (“Where a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory fee. Normally this will encompass all
hours reasonably expended on the litigation, and indeed in some case of exceptional success an
enhanced award may be justified”).
33
See, e.g., McCown v. City of Fontana, 565 F.3d 1097, 1105 (9th Cir. 2009) (“Such a
nonmonetary victory may constitute ‘excellent results’ for the purpose of calculating attorney’s
fees.”); Morales, 96 F.3d at 365.
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6
Many courts have recognized that the relatively small amounts of individual damages at
issue in wage and hour cases often mean that awards of reasonable attorneys’ fees will exceed
the damages awarded.34
a.
Hourly Rates
Plaintiffs’ counsel are entitled to the hourly rates charged by attorneys of comparable
experience, reputation, and ability for similarly complex federal litigation.35 The applicable rates
for a case generally are the market rates for the geographic area in which the district court sits.36
However, when local counsel is not available, and outside counsel must be brought in, then the
37
home town market rates of the outside counsel may be used. Sworn declarations of
knowledgeable counsel who practice in the applicable market constitute probative evidence
supporting the hourly rates of a fee applicant. Similarly, the fact that a court has previously
upheld the hourly rates of counsel establishes a presumption that those rates are reasonable, and
that they fall within the market range.38
b.
The Number of Hours Claimed
Under federal fee-shifting statutes, Plaintiffs’ attorneys are entitled to be compensated for
“every item of service which, at the time rendered, would have been undertaken by a reasonable
34
See, e.g., Fair Housing of Marin v. Combs, 285 F.3d 899, 908 (9th Cir. 2002) (fee award five
times greater than damages affirmed, based on trial court’s finding that “the number of hours
plaintiff's counsel claimed were not excessive, given the ‘consistently high quality’ of the
plaintiff counsel’s work and the circumstances involved.”); Caudle v. Bristow Optical Co., 224
F.3d 1014, 1029 n.11 (9th Cir. 2000) (abuse of discretion to reduce lodestar merely because
damages are modest).
35
United States v. City & County of San Francisco, 748 F. Supp. 1416, 1431 (N.D.Cal. 1990)
(plaintiffs’ public interest attorneys entitled to rates charged by “corporate attorneys of equal
caliber”), aff’d in relevant part sub nom Davis v. City & County of San Francisco, 976 F.2d at
1545-1547; Jordan v. Multnomah County, 799 F.2d 1262, 1266-1267 (9th Cir. 1987) (in public
interest cases, “‘judges awarding fees must make certain that attorneys are paid the full value that
their efforts would receive on the open market in non-civil-rights cases....’”, quoting Hensley,
461 U.S. at 447).
36
See, e.g., Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008)
(“Generally, when determining a reasonable hourly rate, the relevant community is the forum in
which the district court sits.”); Schwarz v. Secretary of Health & Human Services, 73 F.3d 895,
906 (9th Cir. 1995).
37
See McLain v. Lufkin Industries, Inc., (11th Cir. Aug. 8, 2011) (attached).
38
See, e.g., United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.
1990) (“Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the
community, and rate determinations in other cases, particularly those setting a rate for the
plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”).
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39
and prudent lawyer to advance or protect his client's interest ...” It is important for Class
Counsel to keep detailed contemporaneous time records that show when and how each hour was
spent. These time records are the best evidence of the time this case has required.40 To deny
compensation, “it must appear that the time claimed is obviously and convincingly excessive
under the circumstances.”41
Hours expended on losing motions, claims or stages of a case may still be recovered if
they are not “entirely unrelated” to an ultimately successful outcome in the litigation when
viewed as a whole.42
Time that would have been billed to a client of means intent on vindicating comparable
rights also should be paid.43 Factors supporting the reasonableness of hours expended include
(1) the difficulty and outcome of the case;44 and (2) the nature of the defense.45 Moreover, courts
39
Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir. 1982). “[T]he standard is
whether a reasonable attorney would have believed the work to be reasonably expended in
pursuit of success at the point in time when the work was performed.” Wooldridge v. Marlene
Industries Corp., 898 F.2d 1169, 1177 (6th Cir. 1990). See also Norman v. Housing Auth., 836
F.2d 1292, 1306 (11th Cir. 1988) (“The measure of reasonable hours is determined by the
profession’s judgment of the time that may be conscionably billed and not the least time in which
it might theoretically have been done”).
40
See Perkins v. Mobile Housing Bd., 847 F.2d 735, 738 (11th Cir. 1988) (counsel’s “[s]worn
testimony that, in fact, it took the time claimed is evidence of considerable weight on the issue of
the time required in the usual case”).
41
Id. See also, Gates v. Deukmejian, 987 F.2d at 1397 (“The party opposing the fee application
has a burden of rebuttal that requires submission of evidence to the district court challenging the
accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in
its submitted affidavits.”).
42
See, e.g., Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir. 2003) (“Even though the summary
judgment motion failed, work done to prepare the motion on those theories could have
contributed to the final result achieved. In other words, the district court should not have
excluded all work on the motion on the ground that it was ‘unrelated.’”); Beaty v. BET
Enterprises, Inc., 222 F.3d 607, 612 (9th Cir. 2000) (“limited success” reductions appropriate
only in the “unusual” case where “special circumstances” would render a fully compensatory
award “unjust”); Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991) (“The
rationale is clear: If a plaintiff ultimately wins on a particular claim, she is entitled to all
attorney’s fees reasonably expended in pursuing that claim—even though she may have suffered
some adverse rulings.”).
43
Moore v. Jas. H. Matthews and Co., 682 F.2d at 839.
44
See Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 273 (7th Cir. 1993) (hours
“reasonable in relation to the difficulty, stakes, and outcome of the case”).
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will look at the efficiency of class counsel to determine reasonableness of the hours requested.
As the Ninth Circuit has frequently recognized, “broad-based class litigation often requires the
participation of multiple attorneys.” Davis, 976 F.2d at 1544. The presence of multiple attorneys
in complex litigation is both common and desirable.46 As the court said in Patrick v. Bd. Of
Trustees, 603 F.Supp. 754, 759 (E.D.Tex. 1984), “what is sauce for the goose is sauce for the
gander.” Given the necessity for multiple counsel, a reduction for duplication is “warranted only
if the attorneys are unreasonably doing the same work.”47 Class counsel must have the latitude
to staff and prosecute complex litigation in the manner that best protects their clients’ interests;
they are entitled, if not required, to be careful and thorough.48
In Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106, Chief Judge Kozinski,
writing for the Ninth Circuit, recognized that plaintiffs’ contingent fee lawyers have little to gain
from “churning” a case:
It must be kept in mind that lawyers are not likely to spend unnecessary time on
contingency fee cases in the hope of inflating their fees. The payoff is too
uncertain, as to both the result and the amount of the fee. It would therefore be
the highly atypical civil rights case where plaintiff’s lawyer engages in churning.
534 F.3d at 1112. Given this absence of incentive to spend unnecessary hours, the Ninth Circuit
held that trial courts generally should defer to the winning lawyer’s professional judgment
concerning the number of hours reasonably required to win the case. “By and large, the court
should defer to the winning lawyer’s professional judgment as to how much time he was
required to spend on the case; after all, he won, and might not have, had he been more of a
slacker.” Id. (emphasis added).
45
See, e.g., Frank Music Corp. v. MGM, Inc., 886 F.2d 1545, 1557 (9th Cir. 1989) (“’Although
[defendants] had the right to play hardball in contesting [plaintiffs’] claims, it is also appropriate
that [defendants] bear the cost of their obstructionist strategy.’”); Robinson v. City of Edmond,
160 F.3d 1275, 1284 (10th Cir. 1998) (“The Tenth Circuit has long accepted the proposition that
one of the factors useful in evaluating the reasonableness of the number of attorney hours in a fee
request is ‘the responses necessitated by the maneuvering of the other side’” (citations omitted));
Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998) (increased fee award
to plaintiffs justified because of defendant’s “Stalingrad defense”); Wolf v. Frank, 555 F.2d
1213, 1217 (5th Cir. 1977) (“Obviously, the more stubborn the opposition, the more time would
be required....”)
46
See, e.g., Probe v State Teachers’ Retirement System, 780 F.2d 776, 785 (9th Cir. 1986).
47
Johnson v. University College, 706 F.2d 1205, 1208 (11th Cir. 1983). (emphasis the court’s).
48
See, e.g., Guam Soc. of Obstetricians and Gynecologists v. Ada, 100 F.3d 691, 700 (9th Cir.
1996); Norman v. Housing Authority, 836 F.2d at 1306 (fee not measured by “the least time in
which it might theoretically have been done”).
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9
C.
Conclusion
Class Counsel and Class Representative plaintiffs enforce state and federal statutes
designed to protect workers and reflecting important public policies and should be compensated
for those roles. However, courts require careful documentation and justification for that
requested compensation (with different courts having different requirements) so plaintiffs and
their counsel must be prepared to provide the required information in seeking approval of any
class settlement.
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