21-948-cv Holick v. Cellular Sales 1 2 3 4 UNITED STATES COURT OF APPEALS 5 FOR THE SECOND CIRCUIT 6 ____________________ 7 8 August Term, 2021 9 10 (Argued: April 25, 2022 Decided: September 7, 2022) 11 12 Docket No. 21-948-cv 13 ____________________ 14 15 JAN P. HOLICK, JR., on behalf of themselves and all others similarly situated, 16 STEVEN MOFFITT, on behalf of themselves and all others similarly situated, 17 JUSTIN MOFFITT, on behalf of themselves and all others similarly situated, 18 GURWINDER SINGH, on behalf of themselves and all others similarly situated, 19 JASON MACK, on behalf of themselves and all others similarly situated, 20 TIMOTHY M. PRATT, on behalf of themselves and all others similarly situated, 21 WILLIAM BURRELL, 22 23 Plaintiffs-Appellees, 24 25 v. 26 27 CELLULAR SALES OF NEW YORK, LLC, CELLULAR SALES 28 OF KNOXVILLE, INC., 29 30 Defendants-Appellants. 31 32 ____________________ 33 34 Before: POOLER, WESLEY, and CARNEY, Circuit Judges.
2 Cellular Sales of New York, LLC and Cellular Sales of Knoxville, Inc. 3 (collectively “Cellular”) appeal from the March 15, 2021 order of the United 4 States District Court for the Northern District of New York (Stewart, M.J.) 5 granting attorney’s fees to plaintiffs. Cellular argues that (1) the district court 6 abused its discretion in finding that Plaintiffs’ successful minimum wage and 7 overtime claims were sufficiently intertwined with their unsuccessful unfair 8 wage deduction, unpaid compensable work, and untimely commissions claims 9 under the Fair Labor Standards Act and New York Labor Law; and (2) regardless 10 of whether the claims were intertwined, that the district court abused its 11 discretion in reducing the attorney’s fees award by only 40 percent given 12 Plaintiffs’ relative lack of success. We disagree, and affirm for the reasons set 13 forth below. 14 Affirmed. 15 ____________________
16 C. LARRY CARBO, III, Chamberlain, Hrdlicka, White, 17 Williams & Aughtry, P.C. (Julie R. Offerman, on the 18 brief), Houston, TX, for Appellants. 19 20 RONALD G. DUNN, Gleason, Dunn, Walsh & O’Shea, 21 Albany, NY, for Appellees.
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2 POOLER, Circuit Judge: 3 Cellular Sales of New York, LLC and Cellular Sales of Knoxville, Inc. 4 (collectively “Cellular”) appeal from the March 15, 2021 order of the United 5 States District Court for the Northern District of New York (Stewart, M.J.) 6 granting attorney’s fees of $576,870.30 to name plaintiffs Jan Holick, Steven 7 Moffitt, Justin Moffitt, Gurwinder Singh, Jason Mack, William Burrell, and 8 Timothy Pratt (“Plaintiffs”). The parties reached a settlement on the merits 9 claims, leaving only the issue of the attorney’s fee award to be settled on appeal. 10 See Holick v. Cellular Sales of N.Y., LLC, No. 1:12-CV-584 (DJS), 2021 WL 964206 11 (N.D.N.Y. Mar. 15, 2021) (“Holick III”). 12 Cellular argues that (1) the district court abused its discretion in finding 13 that Plaintiffs’ successful minimum wage and overtime claims were sufficiently 14 intertwined with their unsuccessful unfair wage deduction, unpaid compensable 15 work, and untimely commissions claims under the Fair Labor Standards Act 16 (“FLSA”) and New York Labor Law; and (2) regardless of whether the claims 17 were intertwined, that the district court abused its discretion in reducing the
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1 attorney’s fees award by only 40 percent given Plaintiffs’ relative lack of success. 2 We disagree, and affirm for the reasons set forth below. 3 BACKGROUND 4 Plaintiffs were owners of companies that sold cellular service plans and 5 devices to customers through contracts with Cellular , an authorized Verizon 6 Wireless dealer that operates retail stores in upstate New York. Holick v. Cellular 7 Sales of N.Y., LLC, No. 1:12-CV-584 (DJS), 2019 WL 1877176, at *1 (N.D.N.Y. April 8 26, 2019) (“Holick I”). 9 The specifics of the compensation model between Plaintiffs and Cellular 10 are complex and not relevant to this appeal, but in broad strokes Cellular paid 11 Plaintiffs commissions for every cellular service plan they sold. However, if a 12 customer canceled their cell service plan within 180 days of purchasing it, then 13 Cellular would deduct the sale from its following check to the Plaintiffs. Id. at *1- 14 2; J. App’x at 336 ¶¶ 22-23. Plaintiffs were not paid an hourly wage or a salary. 15 Holick I, 2019 WL 1877176, at *2. 16 Plaintiffs brought a class action complaint against Cellular for unfair wage 17 deductions, unpaid compensable work, untimely commissions, unjust 18 enrichment, and failure to pay minimum wage and overtime under the FLSA
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1 and New York Labor Law. “Essentially, Plaintiffs claim that Defendants 2 misclassified them as independent contractors instead of employees as defined 3 by the FLSA and [New York Labor Law], thus depriving them of employee 4 benefits required by law.” Id. at *2 (internal quotation marks omitted). Plaintiffs 5 sought more than $4 million in class damages, and roughly $700,000 in damages 6 for the name Plaintiffs. Holick III, 2021 WL 964206, at *4. 7 In April 2019, the district court denied Plaintiffs’ motion for class 8 certification, finding that:
9 Plaintiffs have failed to demonstrate that they are 10 similarly situated to the degree necessary to maintain 11 an FLSA collective action, or to certify a Rule 23 class 12 action. The Court finds that Plaintiffs’ disparate and 13 highly individualized experiences with the Defendants 14 are not conducive to the production of representative 15 evidence required to proceed collectively. Plaintiffs’ 16 inability to present common proof demonstrating the 17 nature of their employment relationship with 18 Defendants frustrates the possibility of collective 19 resolution and militates against considerations of 20 fairness and procedure. 21 22 Holick I, 2019 WL 1877176, at *1. Plaintiffs appealed the district court’s decision.
23 Plaintiffs then moved for partial summary judgment and Cellular cross- 24 moved for summary judgment. The district court denied Plaintiffs’ motion in
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1 full, and granted Cellular’s motion as to Plaintiffs’ claims for wage deductions, 2 untimely commissions, and unpaid compensable work. Holick v. Cellular Sales of 3 N.Y., LLC, No. 1:12-CV-584 (DJS), 2019 WL 3253941, at *1 (N.D.N.Y. July 19, 2019) 4 (“Holick II”). It found questions of material fact as to whether the Plaintiffs were 5 employees or independent contractors under the FLSA and New York Labor 6 Law, as well as on the minimum wage and overtime claims. Id. 7 The case proceeded to a bench trial. The district court determined that the 8 Plaintiffs were employees of Cellular and granted them judgment of $11,121 for 9 unpaid minimum wages and overtime, plus liquidated damages and 10 prejudgment interest. Holick III, 2021 WL 964206, at *1. Cellular appealed from 11 the district court’s decision. 12 While the merits appeals were pending, the district court proceeded to the 13 issue of fees and costs, to which Plaintiffs were entitled as the prevailing party. 14 Plaintiffs sought $961,450 in attorney’s fees and costs of $46,065. Id. at *2. 15 The district court noted that “the degree of success obtained by the plaintiff” was 16 “the most critical factor” in determining reasonable attorney’s fees. Id. at *2-3 17 (internal quotation marks omitted). Cellular argued that the fee needed to be 18 drastically reduced, in relevant part, because Plaintiffs were unsuccessful on
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1 their unlawful wage deduction, untimely commission and compensable work 2 claims. Id. at *4. The district court disagreed, finding that the unsuccessful claims 3 were inextricably intertwined with the successful claims:
4 Plaintiffs’ claims were all based upon the terms of the 5 contracts between Plaintiffs and Defendants, the 6 circumstances under which commissions were earned, 7 and the formula by which Plaintiffs were paid. These 8 claims would largely require similar discovery and 9 proof and would be difficult to sever in the billing 10 records. These claims are, generally, sufficiently 11 intertwined with Plaintiffs’ claims that were ultimately 12 successful – their overtime claims and minimum wage 13 claims – that a further reduction is not needed to 14 account for the dismissed claims. 15 16 Id. The district court agreed with Cellular that the unjust enrichment claim
17 voluntarily dismissed by Plaintiffs was not intertwined, and deducted the time 18 billed for that claim. Id. at *5. The district court granted Plaintiffs $576,870.30 in 19 attorney’s fees to Plaintiffs—a roughly 40 percent deduction from the amount 20 Plaintiffs initially sought. Id. This appeal followed. 21 Shortly before oral argument took place in this appeal, the parties, with the 22 help of the Second Circuit mediation program, reached an agreement to settle the 23 pending merits appeals. The parties stipulated to conditional certification of 24 collective actions, and provided for payments to 41 opt-in plaintiffs. Cellular
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1 agreed to pay the Plaintiffs and opt-in plaintiffs a maximum of $89,710.61. 2 [Settlement Agreement Pg. 4 ¶ 1.10] The parties were unable to settle their 3 dispute as to the attorney’s fee award. 4 DISCUSSION 5 We review a district court’s decision to grant attorney’s fees for abuse of 6 discretion. Gortat v. Capala Bros., Inc., 795 F.3d 292, 295 (2d Cir. 2015). 7 “We afford a district court considerable discretion in determining what 8 constitutes reasonable attorney’s fees in a given case, mindful of the court’s 9 ‘superior understanding of the litigation and the desirability of avoiding frequent 10 appellate review of what essentially are factual matters.’” Barfield v. N.Y.C. Health 11 & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 12 U.S. 424, 437 (1983)). 13 I. Intertwining 14 “In addition to providing for liquidated damages, the FLSA directs courts 15 to award prevailing plaintiffs reasonable attorney’s fees and costs.” Barfield, 537 16 F.3d at 151; see also 29 U.S.C. § 216(b) (“The court in such action shall, in addition 17 to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable 18 attorney’s fee to be paid by the defendant, and costs of the action.”). What
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1 constitutes “reasonable attorney’s fees” is the subject of much litigation, as it 2 involves far more than determining whether the rate charged and hours billed 3 are fair and appropriate. 4 “The most useful starting point for determining the amount of a 5 reasonable fee is the number of hours reasonably expended on the litigation 6 multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. A court 7 determines whether the hours claimed by the prevailing side were “reasonably 8 expended,” and adjusts the award accordingly. Id. District courts are then 9 charged with factoring in “other considerations that may lead the district court to 10 adjust the fee upward or downward, including the important factor of the results 11 obtained.” Id. at 434 (internal quotation marks omitted). 12 “Where a plaintiff has obtained excellent results, his attorney should 13 recover a fully compensatory fee.” Id. at 435. Conversely, “where the plaintiff 14 achieved only limited success, the district court should award only that amount 15 of fees that is reasonable in relation to the results obtained.” Id. at 440. Courts 16 look to “[b]oth ‘the quantity and quality of relief obtained,’ as compared to what 17 the plaintiff sought to achieve as evidenced in her complaint,” Barfield, 537 F.3d 18 at 152 (quoting Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997)). “Indeed, this
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1 comparison promotes the court’s central responsibility to make the assessment of 2 what is a reasonable fee under the circumstances of the case.” Id. (internal 3 quotation marks omitted). 4 When a plaintiff succeeds on some claims but not others, courts must also 5 consider whether the claims brought are “based on different facts and legal 6 theories,” or if the claims “involve a common core of facts or [are] based on 7 related legal theories.” Hensley, 461 U.S. at 434-35. Where the work on successful 8 claims is unrelated to work on the unsuccessful claims, the “work on an 9 unsuccessful claim cannot be deemed to have been expended in pursuit of the 10 ultimate result achieved.” Id. at 435 (internal quotation marks omitted). But 11 where there is a common core of facts, or related legal theories, “[m]uch of 12 counsel’s time will be devoted generally to the litigation as a whole, making it 13 difficult to divide the hours expended on a claim-by-claim basis.” Id. In such 14 cases, the successful and unsuccessful claims are intertwined, such that “the 15 district court should focus on the significance of the overall relief obtained by the 16 plaintiff in relation to the hours reasonably expended on the litigation.” Id. Thus, 17 “[a]ttorney’s fees may be awarded for unsuccessful claims as well as successful 18 ones [] where they are inextricably intertwined and involve a common core of
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1 facts or are based on related legal theories.” Quaratino v. Tiffany & Co., 166 F.3d 2 422, 425 (2d Cir. 1999) (internal quotation marks omitted). 3 Here, Cellular challenges the district court’s finding that the successful and 4 unsuccessful claims were intertwined. The district court found:
5 Plaintiffs’ claims were all based upon the terms of the 6 contracts between Plaintiffs and Defendants, the 7 circumstances under which commissions were earned, 8 and the formula by which Plaintiffs were paid. These 9 claims would largely require similar discovery and 10 proof and would be difficult to sever in the billing 11 records. These claims are, generally, sufficiently 12 intertwined with Plaintiffs’ claims that were ultimately 13 successful – their overtime claims and minimum wage 14 claims – that a further reduction is not needed to 15 account for the dismissed claims. 16 17 Holick III, 2021 WL 964206, at *4. 18 19 Cellular argues that the successful claims and unsuccessful claims were
20 not intertwined because the only common legal issue is whether plaintiffs were 21 employees or independent contractors; and the elements for each of the claims 22 do not overlap. For the minimum wage and overtime claims, Cellular argues 23 that the elements involve an employment relationship, FLSA coverage, and what 24 hours the plaintiffs worked for which they did not receive minimum wage or 25 overtime pay.
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1 After the district court determined the Plaintiffs were employees, Cellular 2 argues, no common legal issue remained between this successful claim and the 3 unsuccessful claims. Cellular argues that the parties’ contracts and agreements, 4 including when commissions became earned, is irrelevant to the analysis of the 5 minimum wage and overtime claims. Cellular argues that only unsuccessful 6 claims required examining the terms of the parties’ contracts, including the 7 commissions schedule and formula, circumstances and timing in which the 8 commissions were earned, and the parties’ course of dealings. 9 However, Hensley requires the district court to consider whether the legal 10 theories are related, not whether they raise identical legal issues. 461 U.S. at 435. 11 It also requires asking whether the claims arise from a “common core of facts.” 12 Id. Here, there is clearly a common legal issue undergirding each of the claims: 13 whether Plaintiffs are employees or independent contractors, and all of the legal 14 theories involve wage and hour claims brought under the FLSA and New York 15 Labor Law. Plaintiffs’ claims all arise from a common set of facts: the conditions 16 of employment between Plaintiffs and Cellular . Although Cellular attempts to 17 parse differences between the specific elements required for each individual
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1 claim, each requires looking to the facts that set out Plaintiff’s employment 2 relationship with Cellular . 3 Cellular also argues that the district court failed to properly interpret our 4 summary order in Sanchez v. Oceanside First Class Roofing, Inc., 818 Fed. App’x 106 5 (2d Cir. 2020). It argues that Sanchez stands for the proposition that claims are 6 “not intertwined simply because both claims required the plaintiffs to prove they 7 were employees.” Appellant’s Br. 29. However, Sanchez—a nonprecedential 8 summary order—is readily distinguishable. There, the plaintiffs sued for 9 damages related to unpaid overtime and the failure to provide wage notices. The 10 district court found for the defendant on the overtime claims but found for 11 plaintiff on the wage notice claims. Sanchez, 818 F. App’x at 107. Nonetheless, the 12 district court found “that the overtime claims and wage-notice claims were 13 inextricably intertwined, such that fees could be awarded for all of the attorneys’ 14 work (despite Plaintiffs’ marked lack of success on the bulk of their claims).” 15 Id. We disagreed, finding that the claims rested on entirely different legal 16 theories and required different evidentiary showings, as “the overtime claims 17 required proof as to what hours Plaintiffs worked, while the notice claims 18 required only a showing that notice was not given (which Oceanside admitted it
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1 failed to do).” Id. at 108. We also found the fee award inappropriately high 2 because at trial, “the district court found [Plaintiffs’] testimony regarding their 3 work schedule not credible.” Id. at 107. No such credibility issues are implicated 4 here, and as the district court aptly noted, the successful and unsuccessful claims 5 here all required a parsing of the contracts between Plaintiffs and Cellular, an 6 examination of how commissions were earned, and the formula that determined 7 Plaintiffs’ pay. Holick III, 2021 WL 964206, at *4. 8 Indeed, district courts in this Circuit regularly find claims similar to the 9 ones asserted here to be intertwined. In Bond v. Welpak Corporation, plaintiffs 10 brought three FLSA claims: failure to pay overtime, failure to pay wages in a 11 timely manner, and failure to provide wage notices. No. 15-cv-2403, 2017 WL 12 4325819, at *1 (E.D.N.Y. Sept. 26, 2017). Plaintiffs only succeeded on the overtime 13 pay claim. See id. at *2. The district court found the successful and unsuccessful 14 claims intertwined, as “Plaintiffs’ wage notice and frequency of pay claims, [] are 15 not readily severable from their overtime claims because each involved a 16 common core of facts.” Id. at *6. Similarly, in Cabrera v. Schafer, the plaintiff 17 brought claims under the FLSA and New York Labor Law for failure to pay 18 overtime wages, failure to pay spread-of-hours wages, and failure to provide
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1 proper wage notices. No. 12-cv-6323, 2017 WL 9512409, at *1 (E.D.N.Y. Feb. 17, 2 2017), report and recommendation adopted, 2017 WL 1162183 (E.D.N.Y. Mar. 27, 3 2017). The jury found for defendants on the failure to pay overtime and failure to 4 provide wage notices claims, but awarded plaintiff roughly $750 in damages for 5 the spread-of-hours claim. The district court found the claims intertwined, as “all 6 of Plaintiff’s claims arise from his employment at Defendant’s business.” Id. at *9. 7 All of plaintiff’s claims involved allegations arising under related wage and hour 8 statutory provisions, the district court found, and therefore logically involve the 9 same nucleus of operative facts:
10 Further, the discovery conducted would have logically 11 merged given the relatedness of Plaintiff’s claims when 12 viewed against the factual backdrop of this case. 13 Therefore, to view each discrete claim as a completely 14 separate and stand-alone claim would be altogether 15 artificial and would not give meaning to the underlying 16 circumstances upon which such claims arose. Indeed, 17 this is not a case where Plaintiff brought wholly 18 independent causes of action based upon unrelated 19 statutes requiring altogether independent elements of 20 proof that could be logically severed. Rather, the 21 statutes involved and the factual predicates required for 22 a prima facie case are so intertwined that attempting to 23 separate them would border on being a futility. To the 24 extent Defendants argue otherwise, they ignore the 25 realities underlying the instant claims and the Court 26 declines to adopt their tenuous position.
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2 Id. And as discussed above, the Supreme Court in Hensley noted that unrelated 3 claims were likely to be uncommon, and that most civil rights claims will involve 4 a common core of facts, or be grounded in related legal theories, or both. See 5 Hensley, 461 U.S. at 435. Here, Plaintiffs brought wage-and-hour statutory claims 6 that clearly arise from a common nucleus of operative fact regarding their time 7 working for Cellular. Given the common facts involved, the district court’s 8 finding that the discovery involved in litigating the unpaid overtime wage claims 9 is inseparable from the discovery involved in the unfair wage deductions, 10 unpaid compensable work, or untimely commissions claims is well supported. 11 II. Fee award 12 Cellular next argues in the alternative that even if the claims are 13 intertwined, a 40 percent reduction in fees is insufficient given that Plaintiffs won 14 but a fraction of what they originally sought. Based on the record here, we 15 cannot say that the district court abused its discretion by declining to reduce the 16 fee award further to account for Plaintiffs’ lack of success on several of their 17 individual claims. 18 “Both the quantity and quality of relief obtained, as compared to what the
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1 plaintiff sought to achieve as evidenced in her complaint, are key factors in 2 determining the degree of success achieved.” Barfield, 537 F.3d at 152 (internal 3 quotations omitted). In analyzing a prevailing party’s degree of success, a court 4 looks to the party’s “primary aim” in the litigation and the extent to which the 5 party achieved that goal. Id. “[T]his comparison promotes the court’s central 6 responsibility to make the assessment of what is a reasonable fee under the 7 circumstances of the case.” Id. (internal quotations omitted). 8 As Cellular points out, the unsuccessful claims held the potential for a far 9 greater damages award than the successful minimum wage and overtime claims 10 provided. And at the time the fee award was determined, Plaintiffs failed to 11 achieve their primary objective: pursuing their claims as a collective or class 12 action. Given this, Cellular argues the district court committed legal error by not 13 reducing the fee award significantly more, suggesting that an appropriate 14 amount would be $50,000. 15 Attorney’s fee awards are reviewed under a deferential abuse of discretion 16 standard. “When a district court is vested with discretion as to a certain matter, it 17 is not required by law to make a particular decision.” Zervos v. Verizon N.Y., Inc., 18 252 F.3d 163, 169 (2d Cir. 2001). “Rather, the district court is empowered to make
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1 a decision—of its choosing—that falls within a range of permissible decisions.” 2 Id. Our review “afford[s] a district court considerable discretion in determining 3 what constitutes reasonable attorney’s fees in a given case, mindful of the court’s 4 ‘superior understanding of the litigation and the desirability of avoiding frequent 5 appellate review of what essentially are factual matters.’” Barfield, 537 F.3d at 151 6 (quoting Hensley, 461 U.S. at 437). 7 Guided by the standard of review, we affirm. The Barfield panel’s 8 affirmation of a 50 percent reduction in fees where a collective action was sought 9 but not achieved lends support to Cellular’s argument, but Barfield does not 10 create a bright-line rule mandating a 50 percent reduction every time plaintiffs 11 seek but fail to achieve a collective action. Rather, the Barfield panel’s affirmance 12 simply stands for the proposition that under the facts of that case, a 50 percent 13 reduction was “within [the] range of permissible decisions.” Zervos, 252 F.3d at 14 169. Here, the district court was well aware of Plaintiffs’ lack of success—it noted 15 that Plaintiffs were not able to achieve a class action or class certification, and 16 that Plaintiffs received just a fraction of the damages sought. Holick III, 2021 WL 17 962406, at *4. It observed that Plaintiffs’ estimate that roughly 18 percent of the 18 fee sought was “devoted exclusively” to pursuing class and collective
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1 certification was likely low, because “it is not clear” that estimate “fully 2 encompassed all requested fees related to the broader collective and class action 3 components of the case.” Id. Taking the lack of success and other factors into 4 consideration, the district court then reduced the requested fee by 40 percent. A 5 fuller explanation of exactly how it arrived at a 40 percent reduction would have 6 benefited both the parties and this Court, but it cannot be said that the district 7 court exceeded the bounds of its discretion in reaching its conclusion. 8 While a reasonable fee award in an FLSA case necessarily reflects 9 plaintiffs’ level of success, “[f]ee awards in wage and hour cases should 10 encourage members of the bar to provide legal services to those whose wage 11 claims might otherwise be too small to justify the retention of able, legal 12 counsel.” Fisher v. SD Protection, Inc., 948 F.3d 593, 603 (2d Cir. 2020) (internal 13 quotation marks omitted). We have observed that “FLSA cases often involve 14 ordinary, everyday workers who are paid hourly wages and favorable outcomes 15 frequently result in limited recoveries.” Id. at 603-04. “The purpose of the FLSA 16 attorney fees provision is to inure effective access to the judicial process by 17 providing attorney fees for prevailing plaintiffs with wage and hour grievances. 18 Courts should not place an undue emphasis on the amount of the plaintiff’s
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1 recovery because an award of attorney fees . . . encourages the vindication of 2 congressionally identified policies and rights.” Cabrera, 2017 WL 9512409, at *4 3 (alterations and citation omitted). 4 Finally, we note that shortly before oral argument in this case the parties 5 entered into a settlement agreement resolving the merits appeals, which resulted 6 in 41 opt-in plaintiffs being eligible for awards. The name and opt-in plaintiffs 7 are to share in up to $89,710,61—an increase from the district court’s award of 8 $11,121. At oral argument, the panel asked whether this development required a 9 remand to the district court, suggesting that the improved result might bolster 10 the district court’s original decision—or even lead to a greater fee award. 11 Plaintiffs’ counsel urged against remand, stating he was satisfied with the fee 12 award as it stood. 13 When the facts implicating a decision shift, it is customary to remand for 14 the district court to consider the new landscape. Plaintiffs’ reluctance to return to 15 district court is understandable given that this case began in April 2012. Both 16 sides litigated the issues fiercely, resulting in motions to dismiss, to certify, to 17 decertify and for summary judgment, followed by a bench trial. Three appeals 18 were taken, and the two related to the merits were only settled during the
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1 appellate process. Moreover, with Cellular proposing a drastically reduced fee 2 award of $50,000, a remand seems likely to generate further motion practice and 3 a second appeal. Plaintiffs are willing to forgo a possibly higher fee in exchange 4 for peace. For these reasons, we decline to remand. 5 CONCLUSION 6 For the reasons given above, we affirm.