Citations
- 192 F. Supp. 2d 1313
Full opinion text
ORDER
WILSON, United States Magistrate Judge.
The plaintiff migrant workers have prevailed in this case on their claims under the Fair Labor Standards Act (“FLSA”). Accordingly, they have filed a motion for an attorneys’ fee (Doc. 335). Having considered the materials submitted, the parties’ oral arguments, and the governing legal standards, I find that the plaintiffs are entitled to $352,225.40 in an attorneys’ fee, and $131,653.59 in expenses.
I.
The facts of this case have been set forth in detail in two documents following the liability and damage trials (Docs. 262, 332). They need not be repeated here. It is enough to say that in this case the plaintiff class members were awarded what now appears to be in excess of $800,000 in actual and statutory damages pursuant to the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. 1801-1872, and certain plaintiffs were awarded approximately $21,000 in unpaid wages and liquidated damages pursuant to the FLSA. The plaintiffs also prosecuted, unsuccessfully, two additional claims under the AWPA: one for retaliation and one for unpaid bonuses.
The plaintiffs have pointed out that the Eleventh Circuit has held that under the FLSA an attorneys’ fee is an integral part of damages and thus judgment could not be entered until the attorneys’ fee was resolved. See Shelton v. Ervin, 830 F.2d 182 (11th Cir.1987). Accordingly, after the Order was entered determining damages, the plaintiffs moved for an award of an attorneys’ fee in the amount of $2,053,610, and expenses in the amount of $154,117 (Doc. 335, p. 27). Both sides have submitted a memorandum and documentation supporting their positions, and oral argument has been presented.
Although the plaintiffs’ main recovery was based upon the AWPA, they cannot receive an attorneys’ fee under that statute because it has no fee-shifting provision. The FLSA, however, has such a provision and that is the basis for the plaintiffs’ claim for an attorneys’ fee. Thus, the FLSA provides that “[t]he court in such 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.” 29 U.S.C. 216(b). The plaintiffs note that under this provision an award of an attorneys’ fee is mandatory. Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir.1985). What is also mandatory, however, is that the fee be reasonable.
II.
A reasonable attorneys’ fee is “properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In this calculation, the court should exclude hours that were not reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This “lodestar” may then be adjusted upward or downward based on other considerations, including the results obtained and the quality of representation. Id.; Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994).
“The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988). With respect to rates, an applicant may meet this burden by producing either direct evidence of rates charged under similar circumstances, or opinion evidence of reasonable rates. Id. at 1299. In addition, the court may use its own expertise and judgment to make an appropriate independent assessment of the value of an attorney’s services. Id. at 1303. With respect to hours, if an applicant’s documentation “is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart, supra, 461 U.S. at 433, 103 S.Ct. 1933.
A. Hourly Rates.
A first step in the computation of the lodestar is determining the reasonable hourly rate. The prevailing market rate for similar services by similarly trained and experienced lawyers in the relevant legal community is the established basis for determining a reasonable hourly rate. Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir.1996). The party seeking fees bears the burden of establishing the market rate and should present the court with “specific and detailed evidence” from which it can determine the reasonableness of the proposed rate. Norman v. Housing Authority of Montgomery, supra, 836 F.2d at 1303.
In this case, the plaintiffs seek compensation for the services of fifteen lawyers and four paralegals (Doc. 336, App. A). This suit was filed by Florida Rural Legal Services and handled for them by Steven G. Hitov and Christine E. Larson. In 1996, due to limitations imposed by Congress on the work of that organization, the case was taken over by the firm of Hunton & Williams as a pro bono matter. Working on the case for that firm were attorneys A. Neal Barkus, Thomas M. Mackall, Jeffrey B. Hardie, Paul Mirengoff, D. Alan Rudlin, Kelly L. Faglioni, Peter Crane Anderson, Susan Wiltsie, Dina Gold, Scot Hinshaw, and Maureen Walsh, and paralegals Ed Kichline and Constance Corry. Hunton & Williams also retained as local counsel, Cathy L. Lucrezi and, briefly, J. Jeffrey Rice. In addition, it hired Laura Germino and Greg Asbed as local paralegals.
The defendants do not challenge the rates for Hitov, Larson, Lucrezi and Rice (Doc 341, p. 13). They also do not dispute the rates for paralegals Germino and As-bed (id.). What they do challenge are all of the rates claimed by Hunton & Williams, except for the rate of paralegal Kichline.
Hunton & Williams is a law firm based in Richmond, Virginia, with offices in at least Washington, D.C. and Charlotte, North Carolina. Barkus, the lead attorney in this case, is employed in the Washington office and requests a fee based upon his current hourly rate of $425. The other ten Hunton & Williams attorneys claim rates ranging from $170 to $335 per hour, while a paralegal (Corry) seeks compensation at the rate of $110 per hour (Doc. 336, App. A).
The defendants object to the rates requested by Hunton & Williams on the ground that they exceed the rates normally charged in this area. As indicated, “[t]he general rule is that the ‘relevant market’ for purposes of determining the reasonable hourly rate for an attorney’s services is ‘the place where the case is filed.’ ” American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 437 (11th Cir.1999). If an applicant seeks to recover at non-local rates, “he must show a lack of attorneys practicing in that place who are willing and able to handle his claims.” Id.
The plaintiffs attempt to come within this exception. Thus, they have submitted an affidavit from Hitov which purports to show that there were no local firms available to take the case. Hitov’s affidavit, however, demonstrates only a limited search for local counsel. Hitov avers that he inquired in January 1995 of several large firms with offices in Florida while at an American Bar Association (“ABA”) meeting; he asked another large Florida firm and a smaller civil rights firm; and he then sought the referral from the ABA that led to Hunton & Williams (Doc. 342, Ex. 3). This limited inquiry fails to persuade me that there were no firms in this area willing and able to take this case. Rather, I agree with the opinion expressed by Peter W. Zinober, an experienced labor and employment lawyer in Tampa, that “there are lawyers and law firms from Tampa south to Fort Myers and Naples who are capable and would be willing to represent plaintiffs in cases similar to this” (Doc. 342, Ex. 6, p. 4). Accordingly, the plaintiffs have failed to make the showing necessary to justify a non-local rate.
Furthermore, there are other considerations which militate against using a non-local rate. In the first place, Hunton & Williams is deemed to have known when it took this pro bono matter that, if an attorney’s fee was awarded in the future, it would most likely be in accordance with the general rule to use local rates. The firm reasonably could not have had any expectation otherwise.
Moreover, the defendants have made a strong showing that this case was close to settlement prior to the time Hitov ended his participation (see Doc. 341, pp. 6-8). While for reasons subsequently explained this showing does not warrant cutting off all attorneys’ time from that point, it does counsel against using a non-local rate. Seemingly, from Hitov’s perspective, with settlement close, this case at that time would not need a large law firm with an army of lawyers and huge financial resources in order to resolve the matter. After all, Hitov and an associate were apparently handling the matter adequately before they were forced off the case by congressional limitations.
The defendants argue further that it was the plaintiffs who prolonged this litigation by their refusal to pursue an early settlement and thus the use of historical billing rates would be appropriate. The defendants agree, however, to use current rates for the sake of simplicity (Doc. 341, p. 13 n. 5). Since the plaintiffs are being given the benefit of the use of current rates, that advantage should not be enhanced by the use of current non-local rates.
For these reasons, the lodestar amount will be computed using current local rates. Not surprisingly, the parties do not agree on those rates.
The plaintiffs have submitted an affidavit from Thomas T. Steele, an experienced local attorney practicing in the area of antitrust, unfair trade practices and related complex business litigation (Doc. 336, Affidavits). His current hourly billing rate is $325, and his rates from 1996 to the present have ranged from $245 to $350 per hour (id.). He expressed the opinion that the proper hourly rate in a complex wage-hour class action by a senior partner in a substantial law firm in this district should be similar to his hourly rates for the years in question. He said further that, for a litigator having twenty or more years experience in complex business cases, an hourly rate of $245 to $275 would be fair and reasonable.
At the hearing, this affidavit was construed by the plaintiffs to mean that Bar-kus should be compensated at the hourly rate of $325. That is a questionable construction of the affidavit. If that is what was intended, however, the opinion will not be accepted, since not only does it relate to a type of practice not involved here, but also it seems to overstate the prevailing rate in this district.
The affidavit of Peter Zinober, on the other hand, appears to be more on point. In that affidavit, Zinober states that he practices in the area of labor and employment law and that his current rate is $275 per hour (Doc. 342, Ex. 6). He set forth a schedule of rates which included a rate of $210 to $260 per hour for a senior partner with more than fifteen years experience. The top of this range seems to slightly understate the prevailing rate in this district for a lawyer of Barkus’s experience. Rather, Barkus should be compensated at the $275 per hour rate currently charged by Zinober. Barkus and Zinober are comparable lawyers and match up the best.
Other considerations come to mind in choosing the rate of $275 per hour. Thus, at the trials and hearings, Barkus seemed to stand out from the other lawyers on the plaintiffs’ side with respect to his presentation. This factor could justify a rate above $275 per hour. On the other hand, Barkus and his colleagues expended thousands of hours litigating this case and obtained a result that was not much better, if it was better at all, than could have been obtained by settlement around the time Hun-ton & Williams took over the case. Since the ability to assess one’s case accurately is part of the legal skill that is being compensated, the failure to pursue the settlement and avoid litigation could warrant a downward adjustment. In the end, it seemed to me that those factors, to the extent they were meaningful, simply can-celled each other out. Consequently, the rate for Barkus should be set at the $275 hourly rate currently used by Zinober.
At the hearing, the plaintiffs presented a schedule showing the ratio between the rate charged by Barkus and the ten other lawyers from Hunton & Williams for whom a fee is sought. The maintenance of this ratio appears to be a reasonable method of establishing the hourly rates of the other Hunton & Williams attorneys. Consequently, the rates of the Hunton & Williams lawyers will be set as follows:
Attorney Ratio to Barkus rate Rate per hour (rounded to the nearest dollar)
Barkus $275
Mackall $182
Hardie .58 $160
Anderson .55 $151
Rudlin .75 $206
Mirengoff .65 $179
Faglioni .55 $151
Wiltsie .71 $195
Gold .49 $135
Hinshaw .4 $110
Walsh .4
The defendants also challenge the rate of $110 per hour for Corry, a paralegal. There are no affidavits from local practitioners addressing the local market rates for paralegals. However, my experience in other matters leads me to conclude that a rate of $110 per hour is way out of line. The rate of $65 per hour sought for the other paralegal from Hunton & Williams is, based upon my experience, within the range of prevailing market rates. Accordingly, Corry, like Kichline, will be compensated at a rate of $65 per hour.
The undisputed rates for the remaining six individuals are as follows (see Doc. 336, App. A):
Attorney Rate
Hitov $235
Larson $225
Lucrezi $175
Rice $195
Paralegals Rate
Germino $ 14
Asbed $ 14
B. Reasonableness of the Number of Hours Expended.
The next step in the lodestar analysis is to determine what hours were reasonably expended on the litigation. In calculating this, the court should exclude excessive, unnecessary and redundant hours, and also time spent litigating discrete and unsuccessful claims. Duckworth v. Whisenant, supra, 97 F.3d at 1397. Further, a court is to exclude hours spent on distinct successful claims for which there is no statutory fee-shifting authority. Northeast Women’s Center v. McMonagle, 889 F.2d 466, 476 (3d Cir.1989), cert. denied 494 U.S. 1068, 110 S.Ct. 1788, 108 L.Ed.2d 790.
“‘Objections and proof from fee opponents’ concerning hours that should be excluded must be specific and ‘reasonably precise.’ ” American Civil Liberties Union of Georgia v. Barnes, supra, 168 F.3d at 428; see also, Norman v. Housing Authority of Montgomery, supra, 836 F.2d at 1301. Thus, generalized statements that the time spent was unreasonable or unnecessary are not particularly helpful and not entitled to much weight. Norman v. Housing Authority of Montgomery, supra, 836 F.2d at 1301. Accordingly, a fee opponent’s failure to explain exactly which hours he views as unnecessary or duplica-tive is generally viewed as fatal. See Gray v. Lockheed Aeronautical Systems Co., 125 F.3d 1387 (11th Cir.1997). Consequently, all hours as to which the defendants have not made an objection will be accepted. As a corollary to this, because the defendants have not disputed the plaintiffs’ computation of the totals and subtotals of the hours, the hours credited will be calculated simply by subtracting from those subtotals the hours that are determined to be ex-cludable.
The defendants have identified several categories of hours that they contend should be excluded. Some of those contentions have merit and some do not.
1. The defendants contend that work concerning AWPA issues should be excluded since that statute does not have a fee-shifting provision. The plaintiffs do not contest that point, but state that they have already excluded such work. However, they have not completely done so; there are still hours listed that are expressly stated to have been expended on AWPA issues. Those hours will be excluded.
The defendants, however, also place into this category hours that do not clearly reflect time spent on AWPA issues. As to those hours, the defendants have not adequately justified their objections. Thus, the defendants’ basic approach is simply to place in the margin of the billing statements a letter reflecting a category of objéetions and then make some general comments about that category in their memorandum. What the defendants have failed to do for the most part is make particularized objections to specific entries. As previously indicated, conclusory objections are not sufficient. See Gray v. Lockheed Aeronautical Systems Co., supra. Defendants do correctly note, however, that work concerning the class, injunctive relief and prejudgment interest relates solely to the AWPA (Doc. 341, p. 14 n. 6). Consequently, objections based upon work for AWPA issues will be sustained where the entries themselves make clear that the work was for that purpose, and objections will be rejected where it is not apparent on the face of the entries that AWPA work was involved.
Under these principles, hours will be excluded for the various individuals in the following amounts:
Barkus (17), Faglioni (34.75), Gold (4.5), Hardie (20.25), Hinshaw (61.25), Kichline (3.75), Mackall (35.25), Rudlin (3.25), Walsh (12.75), Wiltsie (9.75), Germino (.5), Larson (17.25), Lucrezi (.2) and Rice (•2).
2. The defendants seek to exclude, under code “B,” time spent on “Baseless Arguments and Unreasonable Motions” (Doc. 341, p. 15). In support of this contention, the defendants have set forth brief descriptions of seven matters (Doc. 342, Ex. 10). However, time is not excluded simply because a motion is denied or a task proves unsuccessful. Hensley v. Eckerhart, supra, 461 U.S. at 440, 103 S.Ct. 1933; Uniroyal Goodrich Tire Co. v. Mutual Trading Corp., 63 F.3d 516, 526 (7th Cir.1995); Blum v. Witco Chemical Corp., 829 F.2d 367, 378 (3d Cir.1987). The defendants’ short commentary fails to demonstrate that the seven matters go beyond failed motions and unsuccessful work and reach the level of frivolousness. Consequently, this category of objections will be rejected.
3. The defendants challenge, under code “D,” hours which were purportedly the result of “Duplicative Activity or Attendance” (Doc. 341, pp. 15-16). In support of this contention, the defendants have submitted a statement that is even more cryptic than the one provided in connection with the previous category (Doc. 342, Ex. 10). That will not suffice. It is not necessarily objectionable for a party to have more than one lawyer appear at a proceeding. See Norman v. Housing Authority of Montgomery, supra, 836 F.2d at 1302. Barkus explained in his affidavit the need for the number of lawyers that worked on this case (Doc. 338, pp. 6-7). He also stated that he reviewed the time sheets of each of the individuals who worked on the case and excluded time spent on tasks that would not be billed to a client. He gave examples of time he excluded for work performed by several people, including much of the trial time of Anderson, who is a subject of this objection (id., pp. 7-8). He stated that the time for which a fee was sought was not only reasonable, but necessary.
In light of Barkus’s affidavit, the defendants had to provide some basis for concluding that the work challenged was du-plicative. Nothing in the defendants’ brief comments indicates to me that this was so. Accordingly, this category of objections will also be rejected.
4.The defendants object, under code “E,” to “Excessive Charges Not Reasonably Incurred” (Doc. 341, p. 16). Here, the defendants have not provided reasons for concluding that each of the specific entries marked “E” contain excessive hours. Furthermore, they have made no attempt to indicate what a reasonable lesser number of hours would be, but simply seek to have all hours stricken. This does not furnish me with sufficient information to discount excessive hours. Accordingly, these objections will be denied.
5. The defendants object, under code “G,” to “Grouped Task Descriptions Making It Impossible to Determine the Relationship of the Task” to the FLSA claim (Doc. 341, p. 16). This objection will be sustained to the extent that an objection under a different category has been accepted and the plaintiffs have failed to specify the time spent on the different tasks included within the entry. For example, as previously noted, work recorded by Mackall and by Lucrezi in a single entry was all excluded where some of the work related to AWPA issues and some did not, but no breakdown of the time spent on those tasks was given.
Moreover, even when the “G” notation is not provided, but there is an objection of an insufficient description, the same principle will be applied to exclude all work in an entry where some of the work likely relates to the FLSA and some relates to the AWPA. For example, work described as preparing proposed conclusions of law will be entirely excluded even though some of the work might well have related to the FLSA.
6. The defendants have sought to exclude under code “I” hours for which there were “Insufficiently Described Entries Making It Impossible to Determine A Relationship to” the FLSA claim (Doc. 341, p. 16). This is the largest category of objections relating to specific time entries. In considering this category, I accept the plaintiffs’ proposition that the facts supporting the FLSA claim and the AWPA claim tend to be the same. Consequently, tasks relating to discovery and pretrial motions will generally be considered as applying to the case as a whole and thus compensable. This principle will also apply to the preparation and handling of exhibits and the creation of a computer database. Accordingly, as to those matters, I will not view the absence of a particularized description as warranting the exclusion of the hours.
On the other hand, the legal issues are discrete and can typically be identified easily as related to the FLSA or the AWPA. Importantly, from the outset, plaintiffs’ counsel most likely knew (and certainly should have known) that the only basis for recovery of an attorneys’ fee could be the FLSA, and that work done on the AWPA was not similarly compensable. Especially in these circumstances, a fee applicant “should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” Hensley v. Eckerhart, supra, 461 U.S. at 437, 108 S.Ct. 1933. Accordingly, an entry that, for example, merely states “conducted legal research” is patently insufficient since the subject of the research could be readily identified. The failure to specify the subject of legal work will therefore result in the exclusion of the hours under consideration.
In addition, any objection to an entry referring to a conference, a telephone call, or the like will be sustained if the entry does not identify the subject of the communication. While it is not expected that discussions or other messages should be particularized in detail, it is easy enough to add a couple of words regarding the subject matter of the communication in order to show that it is compensable under the FLSA- — if it is. Consequently, where such a specification is missing, the objection of insufficient entry will be sustained.
Further, the defendants have objected with a notation of “I” to some work related to an attorneys’ fee. Those objections have not been accepted since the entries made clear that the claim was for an attorneys’ fee under the FLSA. Of course, time spent on a fee application is compensable. Johnson v. Mississippi, 606 F.2d 635, 638-39 (5th Cir.1979).
The defendants’ objections regarding insufficiency of the time entries result in the exclusion of hours for the following attorneys and paralegals in the amounts indicated:
Anderson (104), Barkus (243.75), Corry (27.5), Faglioni (25.5), Gold (.25), Hardie (239.25), Hinshaw (13.5), Kiehline (96.5), Mackall (550), Mirengoff (108.5), Rudlin (21), Walsh (15.75), Wiltsie (9), Germino (41.25), Asbed (8.5), Larson (.5), Lucrezi (.45) and Rice (8.3).
7. The defendants object, under Code “M,” to time expended on “Marketing and Public Relations” activity (Doc. 341, p. 17). The plaintiffs have provided no justification for fee-shifting of time spent on this type of activity. Accordingly, the following individuals will have hours excluded for time expended on marketing or public relations activity in the amount noted:
Barkus (11.5), Faglioni (9.5), Mackall (.5), Rudlin (2.5), Germino (5.2), Asbed (1) and Larson (.25).
8. The defendants, under Code “N,” object to “Activity to Get New Plaintiffs” to opt in to the FLSA claim (Doc. 341, pp. 17-18). Time spent soliciting additional plaintiffs is not compensable. American Civil Liberties Union of Georgia v. Barnes, supra, 168 F.3d at 435-36. On that basis, the following time will be excluded:
Barkus (4.75), Faglioni (.25), Mackall (1.5), Rudlin (2.25), Germino (13.25) and Asbed (4.25).
9. The defendants object, under Code “T,” to “Travel Time Not Productively Spent on [the] Case and Charged Unreasonably at the Full Hourly Rate” (Doc. 341, p. 18). Specifically, the defendants object to hours spent traveling between a Hunton & Williams’ office and Florida, and between Hunton & Williams’ offices. The defendants assert that local counsel would not have expended this time. That, however, is not sufficient reason to deny compensation for travel time. Rather, it must appear that it was unreasonable not to hire local counsel. Johnson v. University College of University of Alabama in Birmingham, 706 F.2d 1205, 1208 (11th Cir.1983). While, as indicated in the discussion regarding rates, I think that there were local counsel who would have been available to handle this case, I also think that, under the circumstances, it was reasonable for the plaintiffs to retain Hunton & Williams (on a pro bono basis) to represent them. The defendants, after all, considered it reasonable to hire out-of-state counsel. Accordingly, the objections to time spent traveling to, and from, Hunton & Williams’ offices will not be sustained.
The defendants request, alternatively, that the travel time be compensated at fifty percent of the applicable rate. This, however, is simply another way of saying that the attorneys should be compensated only for one-half of the time spent traveling. The defendants have not provided a persuasive reason why the other half of the time expended should be disregarded. Moreover, the normal rates of the Hunton & Williams attorneys were reduced substantially to conform to local rates. This rate decrease cuts significantly the compensation for travel time. A further reduction does not seem warranted.
10. The defendants object, under Code “U,” to time spent on immigration issues, internal staffing matters, research on mitigation of damages (which pertains only to the retaliation claim in Count III), and work on the bonus claim in Count IV (Doc. 341, p. 18). To the extent the time entries do not reflect work litigating matters that encompass the FLSA claim (and the time has not already been deducted), the objections will be sustained. However, when the time entry fails to indicate that it falls within this objection, and the defendants do not explain why it does, the objection will be rejected. With respect to this category, the following hours will be excluded:
Anderson (3), Barkus (3.75), Faglioni (3.75), Kichline (10), Mackall (3.5) and Rudlin (1.75).
11. A summary of the computation of hours to this point is as follows:
Attorney Hours Claimed Hours Excluded Hours Allowed
Barkus 1,739.50 280.75 1,458.75
Mackall 2,160.00 590.75 1,569.25
Hardie 767.25 259.50 507.75
Anderson 426.25 107.00 319.25
Rudlin 257.50 30.75 226.75
Mirengoff 151.50 108.50 43.00
Faglioni 157.00 73.75 83.25
Wiltsie 89.75 18.75 71.00
Gold 109.25 4.75 104.50
Hinshaw 126.75 74.75 52.00
Walsh 60.00 28.50 31.50
Lucrezi 30.30 .65 29.65
Rice 14.00 8.50 5.50
Hitov 280.70 (not disputed see Doe. 342, Ex. 14) 280.70
Larson 47.50 18.00 29.50
Paralegals Hours Claimed Hours Excluded Hours Allowed
Kiehline 719.50 110.25 609.25
Corry 269.00 27.50 241.50
Germino 680.50 60.20 620.30
Asbed 312.41 13.75 298.66
III.
The defendants assert additional grounds for excluding certain hours in the lodestar computation. None of those grounds justifies a further decrease in the hours that are allowed.
A. The defendants argue that all work performed after March 4, 1997, should be excluded because an offer of judgment on the FLSA claim was made that day pursuant to Rule 68, F.R.Civ.P., and the plaintiffs’ subsequent recovery under the FLSA was less than the amount in the offer (Doc. 341, pp. 19-22). However, even the authority cited by the defendants holds “that Rule 68 does not bar any award of attorney fees in an FLSA case for services rendered after a Rule 68 offer is made and a plaintiff recovers less than the amount offered in settlement.” Haworth v. Nevada, 56 F.3d 1048, 1052 (9th Cir.1995); see also Dalal v. Alliant Techsystems, Inc., 182 F.3d 757, 760 (10th Cir.1999); Fegley v. Higgins, 19 F.3d 1126, 1135 (6th Cir.1994). Consequently, the defendants have provided no basis for excluding all work performed after March 4, 1997.
The appropriate approach, as set forth in Haworth, is to consider a Rule 68 offer in determining the reasonableness of an attorney’s fee. Thus, “[w]hen a plaintiff rejects a Rule 68 offer, the reasonableness of an attorney fee award under the FLSA will depend, at least in part, on the district court’s consideration of the results the plaintiff obtained by going to trial eom-pared to the Rule 1052. offer.”’ 56 F.3d at
Application of that principle is clouded by the circumstances of this case. The offer stated that all FLSA claimants had to accept in order for it to be effective (Doc. 342, Ex. 11). See Lang v. Gates, 36 F.3d 73, 75 (9th Cir.1994), cert. denied, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (Rule 68 offer conditioned upon acceptance by multiple plaintiffs held valid). Moreover, the offer did not cover the AWPA claims. These circumstances suggest that the offer may simply have been a tactical maneuver to eliminate the claim with the fee-shifting provision, and not an effort to settle the entire case.
Further, plaintiffs’ counsel represented at the hearing that the offer was only good for ten days and that, in that short period, the attorneys could not contact all of the FLSA plaintiffs, who are migrant workers. Such a circumstance, if established, would also militate against giving weight to the failure to accept a Rule 68 offer in determining the reasonableness of an attorneys’ fee.
It is therefore difficult in this case to factor into the calculation of a reasonable attorneys’ fee the plaintiffs’ failure to accept the Rule 68 offer. There appears no need to wrestle with this issue because the defendants’ argument that the ease should have been settled at an earlier date presents a clearer situation and is more persuasive.
B. The defendants argue that all time expended after October 1, 1996, should be excluded because of the failure of plaintiffs’ counsel to agree to a settlement of the case that in all likelihood would have been more beneficial than the results finally obtained (Doc. 341, pp. 22-24). In this respect the defendants seek to show that settlement discussions with attorney Hitov had reached a point where settlement appeared likely, but that, when the Hunton & Williams attorneys replaced Hitov, they unreasonably raised the plaintiffs’ settlement demands.
Like the Rule 68 situation, these circumstances provide no basis for simply excluding all hours worked after October 1, 1996. They do, however, present a factor that should be considered when calculating a reasonable attorneys’ fee. Accordingly, they will be taken into account in deciding whether the lodestar amount should be adjusted.
C. The defendants argue that no hours should be credited to Hunton & Williams attorneys before June 17, 1996, because they had stated in a pleading that they were not active counsel prior to that date (Doc. 341, p. 25). This circumstance is not sufficient by itself to deny compensation for work actually performed. The defendants had an opportunity to object to time expended before June 17, 1996, and those objections should be the basis for the exclusion of any time expended by Hunton & Williams lawyers prior to June 17, 1996.
TV.
The lodestar amount is therefore computed as follows:
Attorney Hours Rate Compensation
Barkus ©