United States District Court, E.D. Virginia, Norfolk Division
MARINA LaFLEUR, and THERESA CROY, individually and on behalf of others similarly situated, Plaintiffs,
DOLLAR TREE STORES, INC., d/b/a DOLLAR TREE, and d/ba/ DEALS, Defendant.
MEMORANDUM OPINION & ORDER
RAYMOND A. JACKSON UNITED STALES DISTRICT JUDGE
matter comes before the Court on a third Joint Motion for
Approval of Settlement brought by Plaintiff's Theresa
Croy, Kimberly Cruz: and Dee Crouch, on behalf of
themselves and the 4, 209 opt-in Plaintiffs in the collective
group they represent ("Plaintiffs"), and Defendant
Dollar Tree Stores, Inc., d/b/a Dollar Tree, and d/b/a Deals
("Dollar Tree"), collectively, the
"Parties." ECF No. 564. Plaintiffs have also filed
a third Unopposed Petition for Approval of Attorneys'
Fees and Expenses. ECF No. 566.
23, 2015, the Court held a settlement fairness hearing, and
for the reasons stated in open court, which are set forth
more fully in a Memorandum Opinion dated July 31. 2015. the
Joint Motion for Approval of Settlement and Plaintiffs
Unopposed Petition for Approval of Attorneys' Fees and
Expenses were both denied. The Court found the record bereft
of data or expert support to establish the settlement fund of
$300, 000 was fair and inadequate documentation to justify
counsel fees of $1, 900, 000. which the Court deemed
excessive. Given that the Parties stated they wished to
continue settlement discussions in light of the Court's
concerns, the Court permitted the Parties to supplement their
filing within ten days of the date of the hearing.
review of the Parties' supplemental filing, the Court
again considered the Joint Motion for Approval of Settlement,
which it again denied in a Memorandum Opinion and Order dated
October 21, 2015. The Court still found the explanation for
the calculations of the settlement fund amount inadequate to
find it fair and reasonable. The Court also found that there
was still inadequate documentation to support $1, 900, 000 in
FACTUAL & PROCEDURAL HISTORY
arc current and former Dollar Tree hourly sales associates.
Dollar 'free is a publicly-traded corporation
headquartered in Chesapeake. Virginia with retail stores in
the continental United States. Pls.' Compl.
¶¶13-17, ECF No. 1. Dollar Tree stores are
corporately-owned and operated with operating policies and
procedures that apply to all stores. Id. at
¶¶ 16. 19.
Marina LaFleur and Theresa Cray brought their claims against
Dollar Tree on behalf of themselves and all current and
former ''Hourly Associates" and "Assistant
Store Managers." Id. at ¶ 1. Plaintiffs
claim that Defendant violated wage laws in 48 states and the
District of Columbia by engaging in practices that required
or permitted employees to work "off-the-clock" and
overtime without compensation. Id. at ¶ 2.
Plaintiffs allege that these "standard and uniform human
resource and employment policies and practices, including
policies and practices governing wages and
compensation.'' applied to all Dollar Tree employees
nationwide and facilitated a company-wide procedure of
allowing employees to perform overtime work without pay.
Id. at ¶ 20. These allegations specifically
claim that putative class members are paid on an hourly basis
and arc required to work off-the-clock (1) when making bank
deposits, (2) during interrupted meal periods, and (3) at
miscellaneous other times performing activities such as
unloading trucks, stocking inventory and aisles, retrieving
carts and boxes, cleaning, and waiting for other employees to
start the next shift. Id. at ¶¶
21, 24-34. As a result of the practice of allowing unpaid
off-the-clock work. Plaintiffs worked outside of their
scheduled work period and Defendant failed to compensate them
for associated overtime. Id. at ¶ 43.
Accordingly, Plaintiffs claim Defendant violated federal and
state laws prohibiting unpaid overtime and payment of wages
below the minimum wage. Id. at. ¶ 44.
LaFleur and Croy Hied their Complaint in this case on
November 28. 2011 before the United States District Court for
the Northern District of Illinois. ECF No. I. The Complaint
articulates the aforementioned allegations and brought causes
of action for alleged violations of the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. §§ 201 et
seq., the Illinois Minimum Wage Law, 820 ILCS 105/1
et seq., the Illinois Wage Payment and Collection
Act, 820 ILCS 115/1 et seq., and similar state wage
and hour laws applicable to putative class members.
Id. On June 18, 2012, United States District Judge
Marvin E. Aspen issued a me mo rand um opinion and order
directing the case to be transferred to the Eastern District
of Virginia. ECF No. 58.
October 2, 2012, this Court conditionally certified the case,
allowing Plaintiffs to send notice to potential opt-in
Plaintiffs. ECF No. 82. This Court also dismissed
non-Illinois state law claims and pendant claims for
Plaintiffs who worked solely as Assistant Store Managers,
including named Plaintiff LaFleur. Id. On November
13, 2012, the Court approved the Parties' proposed joint
discovery plan for Phase I Discovery. ECF No. 109.
Subsequently. Plaintiffs sent notices to approximately
275.000 former and current Dollar free employees, 6, 276 of
which opted-in as Plaintiffs in the lawsuit. Out of 6, 276
opt-in Plaintiffs, 184 opt-in Plaintiffs were later
dismissed, leaving 6, 092 Plaintiffs.
January 11, 2013. the Court denied Defendant's motion for
certification for an interlocutory appeal of its order
granting conditional certification, and granted
Defendant's motion to dismiss the remaining Illinois
state claims. ECF No. 195.
January 3, 2014, the Court granted Plaintiffs leave to amend
their Complaint to add Dee Crouch and Kimberly Cruz as named
Plaintiffs in this action. ECF No. 433. The Court also
dismissed opt-in Plaintiffs whose claims were time-barred
pursuant to the applicable statute of limitations, who filed
bankruptcy claims without acknowledging claims against Dollar
'free, and who failed to respond to Defendant's
written discovery requests. Id. On March 7. 2014,
the Court denied Defendant's Motion to Decertify. ECF No.
446. At the hearing on decertification. Defense counsel
represented to the Court that approximately 4, 000
individuals remained as opt-in Plaintiffs of the
conditionally certified class. On April 4, 2014. Defendant
filed two motions-a Motion for Reconsideration of this
Court's March 7, 2014 Order and a Motion for
Interlocutory Appeal and to Stay Order Denying
Decertification. ECF Nos. 454, 456. On May 20, 2014, this
Court denied both motions. ECF Nos. 465, 466.
March 3, 2015. a hearing was to be held on two
pertaining to Phase II Discovery. That morning, the Court
cancelled the hearing upon written notification from each
Party that a settlement had been reached. Because the Parties
have reached a settlement agreement, the Court has reserved
judgment on these and all pending motions.
19, 2015, the Court held a telephone conference with the
Parties. After giving the Parties guidance on the appropriate
notice to be sent to the opt-in Plaintiffs, the Court
indicated its reservations regarding the decertification
clause and stated that the Parties would have to explain the
reasons for its inclusion in the proposed Settlement
Agreement at the fairness hearing. In response, Defendant
filed a motion for leave to file a memorandum explaining its
position. ECT No, 519. The Court granted the motion. On July
1, 2015, Defendant filed its memorandum. ECF No. 522, After
settlement conferences before a United States Magistrate
Judge, the Court held a fairness hearing on July 23, 2015. As
indicated above, the Court denied the first Joint Motion for
Approval of Settlement and Petition for Approval of
Attorneys' Fees and Expenses on July 31, 2015. ECF No.
525. The Court again denied the second Joint Motion for
Approval of Settlement and Petition for Approval of
Attorneys' Fees and Expenses on October 21, 2015. ECF No.
Approval of Settlement Fund
Labor Standards Act ("FLSA") settlement must be
approved by the Department of Fabor or a federal district
court. Taylor v. Progress Energy, Inc., 415 F.3d
364, 374 (4th Cir. 2005). In determining whether a settlement
is "fair, adequate, and reasonable" there is a
"'strong presumption in favor of finding a
settlement lair' that must be kept in mind in considering
the various factors to be reviewed." Lomascolo v.
Parsons Brinckerhoff. Inc., No. 1:08cv1310, 2009 WL
3094955. at * 10 (E.D. Va. Sep. 28, 2009} (quoting
Camp v. Progressive Corp., No, Civ A 01-2680. Civ.
A. 03-2507, 2004 WL 2149079. at *5 (E.D. Fa. Sept. 23,
2004)). Courts consider a number of factors in evaluating a
FLSA settlement agreement, including:
(1) the extent of discovery that has taken place:
(2) the stage of the proceedings, including the complexity,
expense and likely duration of the litigation;
(3) the absence of fraud or collusion in the settlement;
(4) the experience of counsel who have represented the
(5) the probability of plaintiffs' success on the
merits[;] and [(6)1 the amount of the settlement in relation
to the potential recovery.
Id. at *10 (citing Flinn v. FMC Corp., 528
F.2d 1169, 1173-74 (4th Cir. 1975)); Paid v. Barot,
15 F.Supp.3d 648, 656 (E.D. Va. 2014) (citing In re
Dollar General Stores EISA Litigation, No. 5:09-MD-l
500, 2011 WL 3841652, at *2 (E.D. N.C. Aug. 23,
2011)). B. Approval of Attorney Fees The touchstone of any
award of attorneys' fees and expenses is reasonableness.
SunTrust Mortg., Inc. v. AIG United Guar. Corp., 933
F, Supp. 2d 762, 769 (E.D. Va. 2013) (quoting E.I. DuPont
de Nemours and Co. v. Kolon Indus., Inc., Civil Action
No. 3:09cv058, 2013 WL 458532, at *2 (E.D. Va. Feb. 6.
2013)). The fee applicant bears the burden of demonstrating
the reasonableness of its fee request. Kenney v. A Touch
of Patience Shared Hous,, Inc., 719 F.Supp.2d 516, 525
(E.D. Va. 2011), and of "providing sufficient detail in
[its] records to explain and support [its] requests for fees
and costs." Andrade v. Aerofek, Inc., 852
F.Supp.2d 637, 645 (D. Md. 2012). Indeed, "the party who
seeks payment must keep records in sufficient detail that a
neutral judge can make a fair evaluation of the time
expended, the nature and need for the service, and the
reasonable fees to be allowed." Hensley v.
Eckerharl, 461 U.S. 424. 441 (1983) (Burger, C.J.,
calculate an award of attorney fees the Court must determine
a "lodestar fee." Brodziak v. Runyon, 43
P.3d 194. 196 (4th Cir. 1998); Grissom v. The Miller
Corp.. 549 I'.3d 313, 320-21 (4th Cir. 2008). The
lodestar fee is calculated by multiplying the number of
reasonable hours expended times a reasonable rate.
Id. The United States Court of Appeals for the
Fourth Circuit ("the Fourth Circuit") has held that
the Johnson factors must be applied in determining
the reasonable hours expended and hourly rate. See Daly
v. Hill, 790 F.2d 1071. 1077 (4th Cir. 1986). These
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill requisite lo properly perform the legal
(4) the preclusion of other employment by the attorney due to