The opinion of the court was delivered by: Karla R. Spaulding United States Magistrate Judge
REPORT AND RECOMMENDATION TO THE UNITED STATES DISTRICT COURT
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: JOINT MOTION FOR APPROVAL OF SETTLEMENT (Doc. No. 18)
Plaintiff Angela Ashley and Defendant 4 Your Child, Inc. seek the Court's approval of their settlement of claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq.*fn1
In Lynn's Food Stores, Inc.
United States, 679 F.2d 1350, 1352-55
(11th Cir. 1982), the United States Court of Appeals for the Eleventh
Circuit explained that claims for compensation under the FLSA may only
be settled or compromised when the Department of Labor supervises the
of back wages or when the district court enters a stipulated judgment
"after scrutinizing the settlement for fairness." Id. at 1353. In
Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009),*fn2
the Eleventh Circuit observed that the FLSA "contemplates
that 'the wronged employee should receive his full wages plus the
penalty without incurring any expense for legal fees or costs.'" Id.
at 351 (quoting Maddrix v. Dize, 153 F.2d 274, 275-76 (4th Cir.
1946)). Therefore, in any case in which a plaintiff agrees to accept
less than his full FLSA wages and liquidated damages, he has
compromised his claim within the meaning of Lynn's Food
When a settlement agreement includes an amount to be used to pay attorney's fees and costs, the "FLSA requires judicial review of the reasonableness of counsel's legal fees to assure both that counsel is compensated adequately and that no conflict of interest taints the amount the wronged employee recovers under a settlement agreement." Silva, 307 F. App'x at 351. If the Court finds the payment to the attorney is not reasonable, the Court must consider whether the plaintiff's recovery might have been greater if the parties had reduced the attorney's fee to a reasonable amount.
In her answers to the Court's interrogatories, Ashley averred that she was owed $750.00 in overtime compensation and an equal amount in liquidated damages. Doc. No. 12 at 3. In the settlement agreement, Ashley will receive only $750.00. Doc. No. 18-1. Counsel represents that Ashley agreed to compromise her claim because there is a dispute regarding the number of hours of "off-the-clock" overtime she worked, if any. Doc. No. 18 at 2-3. Therefore, the facts and circumstances underlying the settlement have been adequately disclosed.
Because Ashley has compromised her FLSA claim, the Court must consider whether the payment to Plaintiff's attorney is reasonable, to ensure that the attorney's fees and costs to be paid did not improperly influence the amount Ashley agreed to accept.
Carlos Leach, Esq., counsel for Ashley, attached an unsworn statement regarding his experience, a time sheet, and a cost and expense statement to the motion. He requests fees for his work at the rate of $275.00 per hour and for the work of paralegals Rafael Martinez and Risma Saragil at the rate of $105.00 per hour. The Court notes that Attorney Leach has not cited any case in which he was awarded $275.00 per hour. Because this was a straightforward FLSA case, Attorney Leach's reasonable hourly rate would be no more than $250.00 in the absence of objection. Although Leach did not provide information about the paralegals' experience and reasonable hourly rates, the Court's independent research reveals that this Court has found $105.00 per hour to be reasonable for Martinez's work and $95.00 per hour to be reasonable for Saragil's work. See Rivera v. McDonald's Corp., No. 6:09-cv-807-Orl-22GJK, 2010 WL 148717, at * 4 (M.D. Fla. Jan. 14, 2010). Counsel for Plaintiff incurred $400.00 in taxable costs.
The time sheet reflects work that is clerical in nature and not compensable, including preparing an introduction letter and transmittal letters and coordinating dates for the settlement conference. After deducting such non-compensable time, and applying the reduced hourly rates discussed above, the attorney's fees and costs payment of $2,650.00 under the settlement is reasonable in the absence of objection.
Accordingly, I recommend that the Court find that the settlement is a "fair and reasonable resolution of a bona fide dispute over FLSA provisions." Lynn's Food Stores, 679 F.2d at 1354. The Court need not approve the other provisions of the settlement agreement. I note that the settlement agreement contains a confidentiality provision that is, at least in part, unenforceable due to the public filing of the agreement. Therefore, I ...