KYEM v. MERAKEY USA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRANCIS KYEM, individually and on behalf CIVIL ACTION

of all others similarly situated,

Plaintiff, NO. 2:19-cv-05577-KSM

v.

MERAKEY USA, et al.,

Defendants.

MEMORANDUM

MARSTON, J. February 11, 2022

Plaintiff Francis Kyem is employed as a Behavioral Specialist Consultant with Defendant

Merakey Children’s Services (a subsidiary of Defendant Merakey USA). (Doc. No. 1.) Plaintiff

alleges that he was an hourly employee and Defendants failed to appropriately compensate him

for all the hours that he worked; specifically, he alleges that time spent on certain “non-billable”

work went uncompensated. He brings this lawsuit, individually and on behalf of others similarly

situated, alleging that Defendants’ policy or practice of not paying employees for non-billable

work violated the Fair Labor Standards Act (“FLSA”) and Pennsylvania wage and hour laws.

The Court preliminarily certified this matter as a collective action on April 30, 2021. (Doc. No.

40.) Presently before the Court are Plaintiffs’ Unopposed Motion for an Order Approving the

Settlement Agreement and Granting a Service Award (Doc. No. 50) and Plaintiffs’ Unopposed

Motion for an Order Awarding Attorneys’ Fees and Reimbursement of Expenses (Doc. No. 51).

For the reasons below, Plaintiffs’ motions are granted.

I. BACKGROUND

A. Factual Background

Because we write primarily for the parties, we provide only limited background. A fuller

recitation of the relevant facts is available in the Court’s Memorandum regarding preliminary

certification of this matter as a collective action, which is available at Kyem v. Merakey USA,

CIVIL ACTION NO. 19-5577-KSM, 2021 WL 1732501 (E.D. Pa. Apr. 30, 2021).

Since 2012, Plaintiff has worked for Defendants as a Behavioral Specialist Consultant

(“BSC”) and, more recently, as a Licensed Behavioral Specialist Consultant (“LBSC”). (Doc.

No. 1 ¶¶ 10–11, 32.) For the duration of his employment, Plaintiff has been compensated on an

hourly basis. (Id. ¶ 33.) Plaintiff rarely spent time at Defendants’ offices; instead, he worked in

the field. (Id. ¶ 44.) His duties included meeting with clients and their family members; meeting

with school personnel; communicating with clients, their families, and school personnel via

telephone or email; preparing or revising behavior modification plans; and creating progress

notes. (Id. ¶¶ 35, 39.) Defendants billed only some of these activities to their clients, and it was

Plaintiff’s understanding that he would be compensated only for time spent on billable activities.

(Id. ¶ 42; see also Doc. No. 24-2 at 9–12.)

Based on this understanding, Plaintiff submitted timesheets documenting only what he

considered to be billable hours, and he was not compensated for the hours he spent on non-

billable work. (Doc. No. 1 ¶¶ 46–48.) Plaintiff alleges that he regularly spends between ten and

fifteen hours per week on non-billable work and that he works a total of 45 to 55 hours per week

(accounting for both billable and non-billable work) (id. ¶¶ 46–47) but was not compensated or

paid overtime for his non-billable hours (id. at ¶ 48).

B. Procedural History

Plaintiff filed this action on November 26, 2019, alleging that Defendants had violated

his and others’ rights under the FLSA and state wage and hour laws by refusing to compensate

them for overtime when the combination of their billable and non-billable work exceeded 40

hours a week. (Id.) Plaintiff moved to conditionally certify the collective on June 9, 2020 (Doc.

No. 34), and the parties engaged in limited discovery related to certification (Doc. No. 16). On

April 30, 2021, the Court conditionally certified the collective with respect to all BSCs and

LBSCs employed by Defendants. (Doc. No. 40.)

On May 5, 2021, the Court approved the proposed Collective Action Notice (the

“Notice”) (Doc. No. 44), and Plaintiffs’ counsel mailed the Notice to the 19 individuals

Defendants identified as being qualified for the collective (Doc. No. 50-1 at 4–5). In addition to

Plaintiff, three other employees timely opted in to the action: Jacqueline Johnson, Cherrie Sage,

and Sharon Palmer (together, with Mr. Kyem, the “Plaintiffs”). (Id. at 5.)

C. The Proposed Settlement

At the close of the opt-in period, the parties began engaging in “extensive, arms-length

negotiations.” (Id. at 5–6.) Defendants dispute their liability but have agreed to settle the claims

in order “[t]o avoid the uncertainty and cost of further litigation of this matter.” (Id. at 6.)

Subject to the Court’s approval, Defendants have agreed to pay $117,500.00 to settle Plaintiffs’

claims (the “Proposed Settlement”).1 (Id.) The funds will be allocated as follows:

• $72,628.37 to Plaintiffs as set forth in the chart below.

1 The Proposed Settlement was memorialized in a settlement agreement (the “Settlement

Agreement”). (Doc. No. 50-2.)

Plaintiff Settlement Payment

Francie Kyem $14,106.10

Jacqueline Johnson $9,087.82

Sharon Palmer $48,876.63

Cherrie Sage $557.82

• $41,871.63 to Plaintiffs’ counsel in attorneys’ fees and costs.

• $3,000.00 to Mr. Kyem as an award for his service as class representative.

(Id. at 6–7.)

Under the Proposed Settlement, each of the Plaintiffs would receive approximately 84%

of the total maximum recovery they could possibly receive if they were successful at litigation.

(Id. at 15.)

II. THE SETTLEMENT

A. Legal Standard

Courts considering whether to approve settlement of an FLSA action follow a three-step

process. See DiFlavis v. Choice Hotels Int’l, Inc., Civil Action No. 18-3914, 2020 WL 6728806,

at *2 (E.D. Pa. Nov. 16, 2020). First, the court considers whether “the settlement concerns a

‘bona fide dispute.’” Id. (quoting Howard v. Phila. Hous. Auth., 197 F. Supp. 3d 773, 777 (E.D.

Pa. 2016)). If it does, the court then considers whether the settlement is “fair and reasonable for

the employees.” Id. And finally, the court considers whether the settlement “furthers the

FLSA’s implementation in the workplace.” Id.

In determining whether there is a “bona fide dispute” between the employees and the

employer, courts consider whether the dispute involves legal or factual issues, “such as FLSA

coverage or computation of back wages.” Lynn’s Food Stores, Inc. v. U.S. Dep’t of Labor, 679

F.2d 1350, 1354 (11th Cir. 1982); see also Bettger v. Crossmark, Inc., Civil Action No. 1:13-

CV-2030, 2015 WL 279754, at *4 (M.D. Pa. Jan. 22, 2015) (“An agreement resolves a bona fide

dispute when there is some doubt as to whether the plaintiff would succeed on the merits at

trial.”). A bona fide dispute exists when “the dispute . . . fall[s] within the contours of the FLSA

and there [is] evidence of the defendant’s intent to reject or actual rejection of th[e] claim when it

is presented.” Kraus v. PA Fit II, LLC, 155 F. Supp. 3d 516, 530 (E.D. Pa. 2016).

In determining whether a settlement is fair and reasonable, courts in the Third Circuit use

the factors identified by the Third Circuit in Girsh v. Jepson to evaluate whether a class action

settlement is fair and reasonable. See DiFlavis, 2020 WL 6728806, at *3; In re Chickie’s &

Pete’s Wage & Hour Litig., Civil Action No. 12-6820, 2014 WL 911718, at *2–3 (E.D. Pa. Mar.

7, 2014). But see Kraus, 155 F. Supp. 3d at 523 n.3 (observing that some of the Girsh factors do

not apply in the context of FLSA settlements and that “though Girsh may suggest the type of

factors to be considered in assessing a private FLSA settlement, courts need not fall into the

alluring trap of mechanically applying Girsh simply because it is the court’s duty to assess

whether the proposed agreement is fair and reasonable.”).

And finally, in determining whether the settlement advances the purposes of the FLSA,

courts consider factors such as whether the settlement agreement is narrowly tailored such that it

resolves only the employees’ wage and hour claims and whether the agreement contains a

confidentiality clause that would frustrate the FLSA’s “informational objective.” In re Chickie’s

& Pete’s, 2014 WL 911718, at *3; DiFlavio, 2020 WL 6728806, at *7–8.

B. Analysis

The Court considers whether the Proposed Settlement satisfies each of the three

requirements for approval in turn below.

1. A Bona Fide Dispute Exists

The Proposed Settlement resolves bona fide factual and legal disputes between the

parties. There is a factual dispute as to how much time Plaintiffs spent on non-billable work for

every 60 minutes of billable work. (Feb. 2, 2022 Hr’g Tr. at 3.) There is another factual

dispute as to whether Plaintiffs were paid on an hourly basis (as they contend) or on a piece rate

basis (as Defendants contend). (Id. at 3.) If Plaintiffs were paid on a piece rate basis, that

“would result in a threefold reduction in the amount of potential overtime recovery.” (Id.) And

there is a legal dispute regarding the applicable statute of limitations. (Id.) Plaintiffs contend

that a three-year statute of limitations applies, but Defendants argue that the FLSA’s standard

two-year statute of limitations applies. (Id.) Finally, the parties dispute whether liquidated

damages are available under the FLSA. (Id.)

Given these areas of disagreement, the Court finds that the Proposed Settlement resolves

bona fide disputes between the parties. See Morales v. Unique Beginning Caterers Ltd. Liab.

Co., No. 1:20-cv-10026, 2021 WL 5864061, at *2 (D.N.J. Dec. 10, 2021) (determining that a

proposed settlement resolved a bona fide dispute where the plaintiff contended that he was paid

on an hourly basis but the defendant contended that he was paid a fixed weekly rate); Sawyer v.

Health Care Sols. at Home, Inc., No. 5:16-cv-5674, 2019 WL 1558668, at *3 (E.D. Pa. Apr. 10,

2019) (concluding that a proposed settlement resolved a bona fide dispute where, among other

points, the parties disagreed as to the applicable statute of limitations).

2. The Proposed Settlement Is Fair and Reasonable

The Court finds that the Proposed Settlement is fair and reasonable. In Girsh v. Jepson,

the Third Circuit set forth nine factors that courts should consider in determining whether a

settlement is fair and reasonable. 521 F.2d at 157. The Girsh factors are:

(1) the complexity, expense and likely duration of the litigation;

(2) the reaction of the class to the settlement; (3) the stage of the

proceedings and the amount of discovery completed; (4) the risks of

establishing liability; (5) the risk of establishing damages; (6) the

risk of maintaining the class action through the trial; (7) the ability

of the defendants to withstand a greater judgment; (8) the range of

reasonableness of the settlement fund in light of the best possible

recovery; and (9) the range of reasonableness of the settlement fund

to a possible recovery in light of all the attendant risks of litigation.

Id. (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974)) (cleaned up).

An analysis of these factors supports a finding that the Proposed Settlement is fair and

reasonable.

Complexity, Expense, and Likely Duration of Litigation. This factor weighs in favor of

granting approval. Although the parties have already engaged in substantial discovery, they

would have to undertake even more discovery were this case to continue forward. (Doc. No. 50-

1 at 9.) For instance, the parties would have to depose various of Defendants’ employees and

each of the Plaintiffs. (Id.) Further, the parties would also likely have to engage in “significant”

motions practice, including Plaintiffs moving to certify this case as a class action under

Pennsylvania state laws and moving to expand the collective to include additional job

classifications and Defendants objecting to the certification of a class action and moving to

decertify the collective. (Id.) Finally, trial would be time- and resource-intensive and would

delay any eventual recovery for Plaintiffs. (Id. at 9–10.) Accordingly, this factor weighs in

favor of approving the Proposed Settlement. See Wood v. Saroj & Manju Invs. Phila. LLC,

CIVIL ACTION NO. 19-2820-KSM, 2021 WL 1945809, at *7 (E.D. Pa. May 14, 2021)

(determining that the first factor weighed in favor of approval where the parties would have to

conduct additional discovery and were likely to engage in extensive motions practice).

Reaction of Plaintiffs. This factor also weighs in favor of approval. Plaintiffs’ counsel

updated Plaintiffs as the settlement negotiations progressed and provided a detailed explanation

of the terms when the parties reached the Proposed Settlement. (Id. at 10.) Plaintiffs are “all . . .

in agreement,” and no one has objected to the Proposed Settlement. (Feb. 2, 2022 Hr’g Tr. at 7.)

This weighs strongly in favor of approving the Proposed Settlement. Cf. In re SmithKline

Beckman Corp. v. Sec. Litig., 751 F. Supp. 525, 530 (E.D. Pa. 1990) (“Both the utter absence of

objections and the nominal number of shareholders who have exercised their right to opt out of

this litigation militate strongly in favor of approval of the settlement.”).

Stage of Proceedings. Although the case is still in relatively early stages, the parties have

exchanged significant discovery and engaged in motions practice in connection with the

preliminary certification. (Id. at 11.) Plaintiffs’ counsel also “undertook extensive research and

preparation for this case, including participation in multiple discussions with Plaintiffs

concerning the terms and conditions of their employment, collection and detailed investigation of

payroll and time records, and review of the relevant statutes and case law.” (Id. at 12.) Given

this extensive preparation, Plaintiffs’ counsel clearly “had an adequate appreciation of the merits

of the case before negotiating” the Proposed Settlement, and this factor weighs in favor of

approval. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004).

Risks of Continued Litigation. As discussed above, see supra Section II.B.1, there are at

least four bona fide legal and factual disputes between the parties: the ratio of billable to non-

billable work, whether Plaintiffs were paid hourly or piece rate, the applicable statute of

limitations, and the availability of liquidated damages. If any one of these disputes were

resolved in Defendants’ favor, Plaintiffs’ maximum potential recovery would be significantly

undercut. (Doc. No. 50-1 at 13.) There is also a risk that Plaintiffs’ maximum potential recovery

would be even further undercut if Defendants succeeded on their argument that they are “not

responsible for the payment of overtime compensation for hours worked but not reported . . . due

to [Plaintiffs’] alleged failure to follow Defendants’ policies and trainings with respect to

tracking and reporting all hours worked.” (Id.) Further, there is a risk that the collective might

be decertified “because of the number and variety of individual questions as to the amount of

time [Plaintiffs] spent performing the allegedly uncompensated activities.” (Id. at 14.) Given

these risks, this factor militates in favor of approval.

Ability of Defendants to Withstand a Greater Judgment. This factor is neutral.

Defendants are non-profit entities that have struggled financially in light of the COVID-19

pandemic and associated school closure orders, but it is possible that they could withstand a

greater judgment without being forced into bankruptcy. (Id.) Regardless, this factor does not

carry much weight in determining whether to approve an otherwise fair and reasonable

settlement. See Lazy Oil Co. v. Wotco Corp., 95 F. Supp. 3d 290, 318 (W.D. Pa. 1997) (“The

Court presumes that Defendants have the financial resources to pay a larger judgment. However,

in light of the risks that Plaintiffs would not be able to achieve any greater recovery at trial, the

Court accords this factor little weight in deciding whether to approve the proposed Settlement.”).

Taking these considerations together, this factor weighs neither in favor of nor against approving

the settlement.

Range of Reasonableness. This factor weighs in favor of approval. Under the Proposed

Settlement, each Plaintiff will receive approximately 84% of the maximum amount they could

possibly hope to receive at trial assuming every legal and factual dispute was resolved in their

favor. (Doc. No. 50-1 at 15.) See Wood, 2021 WL 1945809, at *16 (concluding that a proposed

settlement which provided 76% of the plaintiff’s maximum potential recovery was reasonable).

In sum, eight of the nine Girsh factors weigh in favor of approval, and none of the factors

weigh against approval, so the Court finds that the Proposed Settlement is fair and reasonable.

3. The Settlement Advances the Purposes of the FLSA

The Court must consider whether the Proposed Settlement furthers the purposes of the

FLSA. The Settlement Agreement requires the members of the collective to waive only their

FLSA and state law wage and hour-related claims against Defendants during the class period.

(See Doc. No. 50-2 at 12–13.) Accordingly, the release is appropriately and narrowly tailored.

See DiFlavis, 2020 WL 6728806, at *6 (collecting cases).

Further, the Settlement Agreement does not contain a confidentiality clause.2 (See

generally Doc. No. 50-2.) Here, the Proposed Settlement includes a provision preventing Mr.

Kyem and his counsel from “mak[ing] any public statements whatsoever, or issu[ing] press

release(s) to the media or press, addressing the settlement.” (Doc. No. 50-2 at 13.) This

provision (which is more aptly described as a “non-publicity provision” than as a “confidentiality

provision”) does not run afoul of the FLSA. The Proposed Settlement, like all of the filings in

this matter, is publicly available on the Court’s docket (see Doc. No. 50-2), and this provision

only applies to Mr. Kyem and Plaintiffs’ counsel—it does not restrict the ability of any of the

other Plaintiffs to discuss the facts of the case or the terms of the settlement. (See Feb. 2, 2022

Hr’g Tr. at 13–14 (counsel agreeing that the non-publicity provision applies only to the named

plaintiff and his counsel).)

With so much information about this case already publicly available, this provision does

not upset the purposes of the FLSA. In re Chickie’s & Pete’s, 2014 WL 911718, at *3 (“The

Proposed Agreement’s confidentiality provision does not seek to seal the record or prohibit

Plaintiffs from discussing this matter with anyone, but only prohibits Plaintiffs from disparaging

Defendants or discussing the substance and negotiations of this matter with the press and media.

Such a prohibition does not ‘thwart the informational objective of the [FLSA’s] notice

requirement by silencing the employee who has vindicated a disputed FLSA right.’”).

* * *

2 Courts must more closely scrutinize confidentiality clauses because “confidentiality clauses in

FLSA settlement agreements frustrate the purpose of the Act by restricting information.” Id.; see also In

re Chickie’s & Pete’s, 2014 WL 911718, at *3 (collecting cases).

Because the Proposed Settlement satisfies all three requirements, it will be approved.

III. SERVICE AWARD

We will also approve the $3000 service award. Service payments are a common feature

of collective action settlements. See Sullivan v. DB Inv., Inc., 667 F.3d 273, 333 n.65 (3d Cir.

2011). These payments serve “to compensate named plaintiffs for the services they provided and

the risks they incurred during the course of [the] litigation and to reward the public service of

contributing to the enforcement of mandatory laws.” Id. (cleaned up). “There is substantial

precedent from [the Third] Circuit supporting approval of incentive payments.” See Somogyi v.

Freedom Mortg. Corp., Civil No. 17-6546, (RMB/JS), 2020 WL 6146875, at *9 (D.N.J. Oct. 20,

2020) (collecting cases).

Here, the proposed service award is reasonable. Mr. Kyem has been “actively involved

in this litigation since before it was commenced.” (Doc. No. 50-1 at 17–18.) He provided

documents to Plaintiffs’ counsel, met with Plaintiffs’ counsel on multiple occasions to explain

Defendants’ billing practices, assisted with the motion for conditional certification, provided two

declarations, and helped Plaintiff’s counsel respond to interrogatories. (Id.; see also Feb. 2, 2022

Hr’g Tr. at 8–9.) His assistance in the early stages of the litigation led to Defendants abandoning

the argument that Mr. Kyem and other members of the proposed collective were FLSA-exempt

employees, thereby greatly increasing the collective’s potential for success. (Doc. No. 50-1 at

12–13.) And, significantly, Mr. Kyem is still employed by Defendants, so he faced substantial

personal and professional risk in prosecuting this lawsuit. (Id. at 18.) Finally, the proposed

service award is relatively small. The $3000 payment represents roughly 2.5% of the total

recovery in this matter. Courts have regularly approved similar service awards in FLSA cases.

See Young v. Tri Cnty. Sec. Agency, Inc., Civil Action No. 13-5971, 2014 WL 1806881, at *8

(E.D. Pa. May 7, 2014) (approving an incentive award that was approximately 3.5% of the

class’s total recovery).

For these reasons, the Court approves the proposed payment of $3000 to award

Mr. Kyem for his service as the named plaintiff.

IV. ATTORNEYS’ FEES AND COSTS

A. Legal Standard

In the Third Circuit, courts generally favor using the percentage-of-recovery method to

compensate counsel in cases brought under the FLSA or state wage and hour laws as a collective

action. See Altnor v. Preferred Freezer Servs., Inc., 197 F. Supp. 3d 746, 765 (E.D. Pa. 2016).

This is because the percentage-of-recovery method encourages efficiency and “rewards counsel

for success and penalizes it for failure.” In re Prudential Ins. Co. Am. Sales Practices Litig., 148

F.3d 283, 333 (3d Cir. 1998) (quoting In re Gen. Motors Corp., 55 F.3d at 821). In determining

whether the requested fees are reasonable under the percentage-of-recovery method, the Court

considers seven factors:

(1) the size of the fund created and the number of persons benefitted;

(2) the presence or absence of substantial objections . . . to the

settlement terms and/or the fees requested by counsel; (3) the skill

and efficiency of the attorneys involved; (4) the complexity and

duration of the litigation; (5) the risk of nonpayment; (6) the amount

of time devoted to the case; and (7) awards in similar cases.

Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000).

The Third Circuit has also recommended that courts cross-check an award of attorneys’

fees with the lodestar method, which requires the court to compare the attorneys’ recovery under

the percentage-of-recovery method with the “lodestar.” Id. The lodestar is calculated by

“multiplying the number of hours [the attorney] reasonably worked on a client’s case by a

reasonable hourly billing rate for such services given the geographical area, the nature of the

services provided, and the experience of the lawyer.” Id. “The [lodestar] crosscheck is

performed by dividing the proposed fee award by the lodestar calculation, resulting in a lodestar

multiplier.” In re AT&T Corp., 455 F.3d 160, 164 (3d Cir. 2006). “[W]hen the multiplier is too

great, the court should reconsider its calculation under the percentage-of-recovery method, with

an eye toward reducing the award.” Id. (quoting In re Rite Aid Corp. Sec. Litig., 396 F.3d 294,

306 (3d Cir. 2005)).

B. Analysis

Plaintiffs’ counsel seeks $41,125.00, or 35% of the settlement amount, in attorneys’ fees

and $746.63 in costs. (Doc. No. 51-2 at 18.) The Court finds that all seven Gunter factors weigh

in favor of awarding the requested fees.

First, Plaintiffs’ counsel’s efforts allowed Plaintiffs to recover over $70,000. Generally,

to avoid a windfall to counsel, as the size of a common fund increases, counsel’s percentage of

recovery should decrease. See Fein, 2017 WL 4284116, at *12. The recovery in this case is

relatively small (although it represents a significant recovery for each of the four Plaintiffs), and

courts have awarded attorneys’ fees reflecting the same percentage even where the settlement

fund was much larger. Tompkins v. Farmers Ins. Exch., No. 5:14-cv-3737, 2017 WL 4284114,

at *9 (E.D. Pa. Sept. 27, 2017) (approving a 35% recovery of attorneys’ fees from a settlement

fund of $775,000).

Second, none of the Plaintiffs objected to the Proposed Settlement. (Doc. No. 50-1 at

10.)

Third, Plaintiffs’ counsel are skilled and litigated this matter efficiently and effectively.

Plaintiffs were represented by attorneys Michael Murphy and Michael Groh of the Murphy Law

Group. (Doc. No. 51-2 at 2–4.) Plaintiffs’ counsel “have significant employment law

experience,” including experience with wage and hour class and collective actions litigated in

this judicial district. (Id. at 3.) Indeed, Mr. Groh has litigated and resolved “approximately one

hundred . . . individual and/or collective/class action lawsuits arising under federal and state

wage laws.” (Id.)

Fourth, Plaintiffs’ counsel have litigated this case for over two years and have “engaged

in significant written discovery, motion practice . . . , extended discussions regarding the nature

and constitution of the proposed collective, the exchange of thousands of pages of relevant

documents and information, and prolonged, arms-length settlement negotiations.” (Doc. No. 51-

1 at 13.) This case involved complex factual and legal issues, such as whether Defendants knew

Plaintiffs were performing but not recording the non-billable activities detailed in the complaint,

whether a two- or three-year statute of limitations applied, whether liquidated damages are

applicable under the FLSA, and whether Plaintiffs were FLSA-exempt employees. (Id. at 14.)

Significantly, during the course of this litigation Plaintiffs’ counsel prevailed on their argument

that Plaintiffs were FLSA-exempt employees as Defendants’ counsel conceded this issue. (Id.)

Fifth, Plaintiffs’ counsel accepted this case on a wholly contingent basis, so the risk of

non-payment has been high throughout this litigation. (Id.) In any contingency case, there is a

risk of non-payment, and that risk is even more so in cases such as this one where the defendants

have colorable defenses sounding in fact and law. (See supra Section II.B.2.)

Sixth, Plaintiffs’ counsel dedicated a significant amount of time to litigating this matter:

they have investigated Plaintiffs’ claims, conducted discovery, briefed the collective action

certification motion, and negotiated the settlement. (Doc. No. 50-1 at 19.) Significantly,

Plaintiffs’ counsel got Defendants to agree for the purposes of calculating the settlement that

Plaintiffs expended approximately 18 minutes of non-billable work for every 60 minutes of

billable work.3 (Feb. 2, 2022 Hr’g Tr. at 3–4.)

Finally, the 35% award is similar to what our sister courts have awarded in like cases. In

the Third Circuit, courts using the percentage-of-recovery method to calculate attorneys’ fees

generally approve of fees ranging “from roughly 20–45%.” Marby v. Hildebrandt, Civil Action

No. 14-5525, 2015 WL 5025810, at *4 (E.D. Pa. Aug. 24, 2015) (collecting cases). Other courts

have awarded attorneys’ fees totaling 35% of the total settlement amount in similar wage and

hour cases. See, e.g., Tompkins, 2017 WL 4284114, at *9 (awarding attorneys’ fees in the

amount of 35% of total settlement award); Nwogwugwu v. Spring Meadows at Lansdale, Inc.,

CIVIL ACTION NO. 16-2663, 2017 WL 2215264, at *3 (E.D. Pa. May 18, 2017) (same).

In addition to the Gunter factors all weighing in favor of awarding the requested

attorneys’ fees, a lodestar cross-check also confirms the reasonableness of their request. Mr.

Murphy expended 24.25 hours on this litigation at an hourly rate of $475.00 for $11,518.75 in

total fees. (Id.) Mr. Groh expended 66.33 hours on this litigation at an hourly rate of $295.00

per hour for $19,567.35 in total fees. (Id.) Together, Plaintiffs’ counsel accrued $31,086.10 in

fees based on the lodestar method. (Id.) They are requesting $41,871.63 in fees under the

percentage-of-recovery method, which is approximately 1.35 times more than under the lodestar

method. The lodestar multiplier of 1.35 falls well within the range of reasonableness and

confirms the reasonableness of the requested fees. In re AT&T, 455 F.3d at 172–73 (“[W]e think

a multiplier of 1.28 is well within a reasonable range.”); Anderson v. Liberty Healthcare Corp.,

No. 2:20-cv-03014-RAL, 2021 WL 6752257, at *2 (E.D. Pa. Nov. 22, 2021) (“Moreover, the

3 Although Defendants agreed to this ratio for the limited purpose of calculating the settlement,

they contend the correct calculation is much closer to 6 minutes than 18 minutes. (Feb. 2, 2022 Hr’g Tr.

at 4–5.)

fee's reasonableness is further confirmed by submissions indicating that it results in an

acceptable ‘lodestar multiplier’ of 1.82 when compared to Plaintiffs’ counsel’s reported lodestar

using hourly rates described in the Philadelphia Community Legal Services fee schedule.”).

The Court also finds that Plaintiffs’ request for $746.63 in costs expended by counsel is

reasonable.

V. CONCLUSION

For the reasons above, Plaintiffs’ Unopposed Motion for an Order Approving the

Settlement Agreement and Granting a Service Award (Doc. No. 50) and Plaintiffs’ Unopposed

Motion for an Order Awarding Attorneys’ Fees and Reimbursement of Expenses (Doc. No. 51)

are granted. An appropriate Order follows.