United States District Court, D. Maryland
WAYNE ALLEN et al. Plaintiffs
ENABLING TECHNOLOGIES CORP. Defendant
William M. Nickerson Senior United States District Judge
Wayne Allen and Howard Cable filed this action on December
30, 2014, against their former employer, Defendant Enabling
Technologies Inc., alleging violations of the federal Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et
seq., and the Maryland Wage and Hour Law (MWHL), Md.
Code Ann., Lab. & Empl. §§ 3-401 et
seq. On or about September 9, 2016, the parties reached
a settlement of Plaintiffs' claims whereby Defendant
agreed to settle those claims for a total of $129, 611.00,
$69, 902.00 to Plaintiff Allen and $60, 609.00 to Plaintiff
Cable. The parties were unable to reach an agreement as to
attorney's fees but did stipulate in the settlement
agreement that Plaintiffs were the “prevailing
parties” for purposes of entitlement to an award of
attorney's fees under the FLSA and MWHL. Defendant
reserved the right, however, to challenge the reasonableness
of those fees. Before the Court is Plaintiffs' fee
petition, ECF No. 51, which is fully briefed.
parties are in agreement that, under § 216(b) of the
FLSA, the award of attorney's fees and costs to the
prevailing plaintiff is mandatory. 29 U.S.C § 216(b).
Thus, Plaintiffs are entitled to some award of fees.
“The amount of the attorney's fees, however, is
within the sound discretion of the trial court.”
Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).
exercise of that discretion, courts have found that
“[t]he most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). This approach is commonly known as the
“lodestar” method. Grissom v. The Mills
Corp., 549 F.3d 313, 320 (4th Cir. 2008). In deciding
what constitutes a “reasonable” number of hours
and a “reasonable” rate under this method, courts
look to a number of factors, including:
(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation;
(7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the
legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and
client; and (12) attorneys' fees awards in similar cases.
Barber v. Kimbrell's Inc., 577 F.2d 216, 226
n.28 (4th Cir. 1978) (adopting the twelve factors set forth
in Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974)). These factors are frequently referred
to as the Johnson factors.
upon their own calculations using this lodestar method,
Plaintiffs have asked for the award of $179, 619.00 in fees.
Plaintiffs assert that 475.66 hours were reasonably expended
by their attorneys and other professional at billing rates
ranging from $475.00 an hour for lead counsel, Philip Zipin,
to $135.00 for paralegals and a law clerk. These billing
rates are consistent with accepted rates set forth in this
Court's Local Rules. Md. Local Rules, App. B(3).
supporting the reasonableness of the number of hours spent
and the resulting fees under the Johnson factors,
Mr. Zipin particularly highlights the eighth factor, the
“results obtained.” Mr. Zipin posits that the
fact that he was able to obtain “outstanding
results” for his clients is “the obvious and most
salient fact in the Court's determination regarding the
Fee Petition, ” ECF No. 63 at 8, noting that, in his
years of practice representing hundreds of employees in
overtime cases, he could not recall a single instance of a
larger recovery for overtime wages on behalf of only two
individuals. ECF No. 51 at 11. Mr. Zipin also highlights,
appropriately, his extensive experience in employment cases,
specifically overtime cases.
challenging the fee petition, Defendant raises five arguments
as to why the requested fees should be significantly reduced:
1) the time and labor devoted to this matter was unnecessary;
2) the settlement payment was much less than the claimed
amount in controversy; 3) since the amount in controversy was
significant, charging attorney's fees in excess of the
results obtained for Plaintiffs constitutes a violation of
Mr. Zipin's ethical obligations; 4) Mr. Zipin's fees
include over-billing in the form of high hourly rate lawyers
doing basic legal research, redundant charges, and excessive
preparation time; and 5) Mr. Zipin failed to comply with
Appendix B of the Local Rules of the U.S. District Court for
the District of Maryland by failing to submit quarterly
arguing that much of the time spent on this case was
unnecessary, Defendant runs through the two-year history of
this litigation and points to various stages where Defendant
believes the case should have or could have been settled.
Defendant suggests that while Plaintiffs initially offered to
arbitrate this case in November of 2015, that offer proved to
be disingenuous and was inconsistent with Plaintiffs'
insistence that the parties go forward with discovery before
that arbitration. The Court recognizes, however, that
Plaintiffs were not compelled to forgo discovery and submit
to arbitration, and there is no certainty that arbitration
would have resolved Plaintiffs' claims.
asserts that Plaintiffs' motions practice resulted in
unnecessary attorney's fees of more than $54, 000.00
Plaintiffs filed a motion for summary judgment, moved to
strike Defendant's Reply memorandum on the ground that
the Reply exceeded the page limit set out in this Court's
Local Rules, and also opposed Defendant's motion for
leave to amend its answer. Both of Plaintiffs' motions
were denied and Defendant's motion was granted over
Court agrees that this motions practice was of marginal
value. As the Court noted in denying Plaintiffs' summary
judgment motion, there were clear disputes of fact as to
whether Plaintiffs were exempt employees and the resolution
of those disputes would turn on the credibility of witnesses.
See ECF No. 44 at 21-22. Plaintiffs' opposition
to Defendant's motion to amend its answer to assert the
“Computer Employee Exemption Defense” was, as the
Court also noted, putting form over substance. Id.
primary focus, however, of Defendant's argument that the
time and labor devoted to this matter was unnecessary is
Defendant's contention that Mr. Zipin knew, or should
have known, that Plaintiffs grossly inflated the number of
hours that they allegedly worked. The Complaint alleges that
Plaintiffs were paid a salary based on a regular 40 hour work
week but also alleges that, every 4 to 6 weeks, they were
“on call” which involved being available to
troubleshoot from 5 p.m. to 7:30 a.m. on weekdays and 24
hours a day on weekends. ECF No. 1, ¶¶ 9, 10.
Plaintiffs also allege in the Complaint that
“[t]hroughout their employment with Defendant,
Plaintiffs typically and customarily worked approximately
sixty (60) hours per week, on average, ” id.
¶ 11, without specifying if that 60 hour average was for
all weeks or just on-call weeks.
theorizes that Plaintiffs' original allegation only
referred to on-call weeks, but, once they discovered that
Defendant maintained no records of time worked, Plaintiffs
and Plaintiffs' counsel adopted the position that 60
hours per week was the estimate for hours worked for all
weeks. To support that 60 hour average, Plaintiffs asserted
that they worked about 50 hours on “Regular Weeks,
” and 92 hours on “On-call Weeks.”
Defendant posits that Mr. Zipin's deliberate choice to
advocate for this highly inflated estimate of the number of
hours worked made ...