A recent Legal Intelligencer story, “$1.2M in Attorney Fees for Wage-and-Hour Suit Against TD Bank,” reports that class counsel who settled a wage-and-hour suit brought by tellers at TD Bank for $6 million have been awarded $1.2 million in attorney fees.  U.S. District Judge L. Felipe Restrepo of the Eastern District of Pennsylvania appointed Justin Swidler and Richard Swartz of Swartz Swidler in Cherry Hill, NJ, as class counsel earlier this year and granted their request for attorney fees.

The settlement agreement notes lawyers’ intent to seek fees equaling 20 percent of the total $6 million, according to Restrepo’s opinion.  “In the event that the aggregate of all participating class member payments plus attorneys’ fees and costs totaled more than the maximum settlement amount of $6 million, the payments would be pro-rated so that the total payment would equal the difference between $6 million and the attorneys’ fees and costs,” Restrepo said.

Of the roughly 23,000 potential class members, the claims administrator only received about 9,000 valid claims, according to Restrepo’s opinion.  There were 130 requests for exclusion and no objections.  The $6 million settlement fund covers all payments to the class, taxes, class representative service payments and attorney fees.  Restepo followed the prevailing practice in the Third Circuit for assessing attorney fees in common fund cases—the percentage of the recovery method.

“In the Third Circuit, ‘the percentage of recovery method is generally favored in cases involving a common fund’ because it ‘allow[s] courts to award fees from the fund in a manner that rewards counsel for success and penalizes it for failure,’” Restrepo said, quoting the U.S. Court of Appeals for the Third Circuit’s 1998 opinion in In re Prudential Insurance America Sales Practice Litigation.

It is typically used in wage-and-hour cases, the judge said, and courts in the circuit have awarded between 19 and 45 percent of the common fund for attorney fees.  Here, class counsel asked for fees that would be 20 percent of the fund, which “are at the low end of this range and are consistent with fee awards approved in this circuit and in the country for similar wage-and-hour cases,” Restrepo said.

Swidler and Swartz have significant experience handing this type of case, the judge said, noting that they have been class counsel in more than 60 class or collective actions since 2010.  Most of them have been wage-and-hour cases.  Class counsel worked efficiently for the plaintiffs, Restrepo said, explaining in a footnote that their time sheets showed 720 hours billed for the matter.

“This case was filed over two years ago, but it has involved only a limited amount of motion practice by class counsel.  The parties reached a settlement here before any dispositive motions were filed.  Discovery was exchanged between parties, but this discovery was targeted,” Restrepo said.  He also noted the class counsel took the case on a contingent fee basis and agreed to waive their costs if there were to be no recovery for the class, which put them at risk of nonpayment.

After applying the lodestar cross-check with an hourly rate of $450, which would result in a multiplier of just above three, Restrepo was satisfied that all seven of the factors to be considered in weighing the requested attorney fees favored what class counsel had asked for.

“The lodestar cross-check results in a multiplier of slightly above three, which is within the range of one to four that is frequently awarded in common fund cases in the Third Circuit,” Restrepo said, citing to Prudential.  “Even if any prospective time is removed from this calculation, the requested award still falls within this range.  As a result, the court finds that the lodestar cross-check confirms the reasonableness of the attorneys’ fee award here.”