United States District Court, E.D. Virginia, Newport News Division
TAMMY McNEIL, on behalf of herself and all others similarly situated, Plaintiffs,
FANEUIL, INC., Defendant.
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE
action is before the Court on Plaintiffs' Motion and
Memorandum for the Award of Attorney's Fees, Expenses,
and Costs ("Motion"). Doc. 178. Plaintiffs filed
the Motion on May 26, 2017. Id. Defendant responded
in opposition on May 31, 2017. Doc. 190.
8, 2017, the Court ordered that this case be referred to a
United States Magistrate Judge for a report of proposed
findings and recommendations as to the appropriate award of
attorney's fees. Doc. 192. The Magistrate Judge ordered
additional briefing. Doc. 193, and subsequently held a
hearing on the Motion on July 24, 2017, Doc. 201. On November
8, 2017, the Magistrate Judge issued a Report and
Recommendation ("R&R") regarding the Motion.
Doc. 208. The R&R recommends that the Court GRANT the
Motion IN PART, allowing Plaintiffs total attorney's fees
and costs in the amount of $696, 064. See Doc. 208 at 26.
November 22, 2017, both Parties filed Objections to the
R&R. See Docs. 210, 211. The Court held a hearing on the
Parties' objections on March 14, 2018. For the reasons
stated herein and on the record, the Court OVERRULES
Plaintiffs' and Defendant's objections, and
ADOPTS the findings and recommendations of
the R&R in their entirety.
a collective action brought pursuant to the Fair Labor
Standards Act ("FLSA"), 29 U.S.C, §§ 201
et seq. The named Plaintiff, Tammy McNeil
("McNeil") filed an Amended Complaint on November
18, 2015, individually and on behalf of other similarly
situated employees (collectively, "Plaintiffs"),
against Defendant Faneuil, Inc. ("Defendant"). Doc.
24 ("Compl."), Defendant is a Delaware corporation
with its principal office in Hampton, VA, and "employs
thousands of individuals nationwide who work handling
telephone calls on behalf of [its] clients." Compl.
alleged that Defendant's call center employees were not
compensated for time worked at the beginning and end of their
shifts and meal breaks, in violation of the FLSA.
Id. ¶¶ 2, 30, 40, 51-55. This was
allegedly due to several time-keeping policies, such as a
policy that rounded employees' time to the nearest
quarter hour. Id. ¶ 15. Call center workers
were prohibited from clocking in more than five minutes prior
to the scheduled start of their shift and were also punished
for clocking in late. Id. ¶¶ 16-17.
Plaintiffs alleged that these policies disproportionately
favored Defendant at the expense of its employees and
resulted in wage compensation for less than the actual time
worked. Id. ¶ 17.
the Court's conditional certification of a nationwide
class, over one thousand (1, 000) individuals opted into this
case. Doc. 195 at 2, 4. Plaintiffs are represented by
attorneys from four (4) law firms: Christian L. Connell,
P.C., Yezbak Law Offices, Barrett Johnston Martin &
Garrison, LLC, and Mays & Kerr LLC.
filed their initial Complaint on July 31, 2015, Doc. 1, and
moved for conditional class certification on October 14,
2015, Doc. 14. Defendant moved to dismiss the Complaint on
November 6, 2015, Doc. 20, and Plaintiffs filed an Amended
Complaint on November 18, 2015. Doc. 24. Defendant moved to
dismiss the Amended Complaint on December 14, 2015. Doc. 36.
On March 1, 2016, the Court held a hearing on the Motion for
Conditional Class Certification and the Motion to Dismiss.
Doc. 54. The Court denied the Motion to Dismiss and granted
Plaintiffs' request for conditional certification, only
as to employees in Virginia. Docs. 55, 56. After additional
discovery on the certification issue, Plaintiffs again moved
for conditional certification of a nationwide class, Doc. 85,
which the Court granted, Doc. 105.
Parties filed a variety of discovery motions between August
of 2016 and April of 2017, and Plaintiffs filed a Motion for
Partial Summary Judgment on April 7, 2017. Doc. 158. Before
the summary judgment motion was fully briefed, the Parties
notified the Court that they had reached a settlement and
wished to schedule a settlement approval hearing. Doc. 165.
At the settlement approval hearing on May 10, 2017, the Court
found that the case had not settled and ordered the Parties
to engage in a settlement conference with Magistrate Judge
Miller, Docs. 171, 173.
26, 2017, Plaintiffs filed the instant Motion for
attorney's fees, expenses, and costs. Doc. 178. At the
settlement conference with Judge Miller on June 6, 2017, the
Parties "reached an agreement on all of the matters set
for trial, except that they reserved the issue of determining
reasonable attorneys' fees to this Court." Doc. 192
at 1. Specifically, the Parties agreed that Defendant will
pay $285, 000 "in full settlement of [Plaintiffs']
claims for wages, liquidated damages, and service payments to
class members, " and that Plaintiffs constitute a
prevailing party under the FLSA. Doc. 194, Ex. 1 at 1.
8, 2017, the case was referred to the Magistrate Judge for a
R&R regarding the Parties' Joint Motion for
Settlement Approval, Doc. 194, and the instant Motion, Doc.
178. Doc. 192. The Magistrate Judge held a hearing on both
Motions on July 24, 2017. On September 25, 2017, the
Magistrate Judge issued a R&R recommending that the
settlement be approved, Doc. 207, which the Court adopted,
Doc. 212. On November 8, 2017, the Magistrate Judge issued a
R&R regarding the instant Motion. Doc. 208. Both Parties
filed Objections to the R&R on November 22, 2017. Docs.
210, 211. Both Parties filed Responses to each other's
Objections on December 6, 2017. Docs. 213, 214.
Review of Magistrate Judge's Recommendation
objections to a Magistrate Judge's report and
recommendation are timely filed, the District Judge
"shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made." 28 U.S.C. §
636(b)(1)(C). The District Judge "may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." Id. The District
Judge "may also receive further evidence or recommit the
matter to the magistrate judge with instructions."
Fees and Costs Under the FLSA
FLSA action, a court "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 the costs
of the action." 29 U.S.C. § 216(b). "The
payment of attorney's fees to employees prevailing in
FLSA cases is mandatory." Burnley v. Short, 730
F.2d 136, 141 (4th Cir. 1984). Plaintiffs are considered to
have prevailed for the purpose of awarding attorneys'
fees "if they succeed on any significant issue in