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Jonathan S. Almodova, et al v. City and County of Honolulu

August 8, 2012


The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


Plaintiffs Jonathan S. Almodova, Randall Arakaki, Wallace Change, Chad Giesseman, J. Craig Petersen, Jason Pistor, Lisa Reed, Ronald L. Smith, and Robert Thomas, et al., (collectively, "Plaintiffs") filed the Motion for Approval of Attorney's Fees and Costs ("Fee Motion") on June 11, 2012. [Dkt. no. 62.] Defendant City & County of Honolulu ("Defendant") filed a statement of position on June 26, 2012. [Dkt. no. 65.] Plaintiffs and Defendant (collectively, "the Parties") filed a Joint Motion for Approval of Settlement ("Joint Settlement Motion") on July 23, 2012. [Dkt. no. 68.] These matters came before this Court for hearing on August 6, 2012. Appearing on behalf of Plaintiffs was Vladimir Devens, Esq., and appearing on behalf of Defendant was Darin Leong, Esq. After careful consideration of the Fee Motion and Joint Settlement Motion, supporting and opposing memoranda, and the arguments of counsel, the Fee Motion and the Joint Settlement Motion are HEREBY GRANTED for the reasons set forth below.


On June 28, 2010, Plaintiffs filed a complaint against Defendant alleging violations of the Fair Labor Standards Act ("FLSA"). A number of plaintiffs have settled their claims against Defendant with 143 plaintiffs remaining ("Remaining Plaintiffs"). On April 10, 2012, the Parties reached a settlement that would resolve the claims of all Remaining Plaintiffs in the instant case.

I. Almodova I

In the preceding action, Almodova, et al. v. City & County of Honolulu, CV 07-00378 DAE-LEK, the plaintiffs alleged that Defendant violated the FLSA by: improperly calculating the plaintiffs' regular rate of pay, which is used to calculate overtime pay; failing to compensate them for pre-shift and post-shift periods of work and for working through unpaid meal periods; failing to comply with the FLSA's compensatory time off provisions; failing to compensate them in a timely manner for overtime work; and improperly classifying certain plaintiffs as exempt from the FLSA. 2010 WL 1372298, at *1 (D. Hawai`i Mar. 31, 2010) ("Almodova I").

Defendant made individual offers of settlement to 422 of the 463 plaintiffs, with different amounts offered to groups of plaintiffs based upon their department and ranking or status. Id. at *1 & n.2. Each individual plaintiff independently chose whether or not to accept his or her offer, with 280 of the 463 plaintiffs accepting. Certain groups did not receive settlement offers, specifically battalion chiefs in the fire department and employees of in departments other than the police department or the fire department. Id. at *1. The magistrate judge found the settlements to be fair and reasonable and recommended approval of the settlements. Id. at *6. Further, using the lodestar analysis as a guide, the magistrate judge found that the attorneys' fees that Defendant agreed to pay and the attorneys' fees which were to be deducted from the settlement amounts were reasonable, and the magistrate judge recommended approval of the attorneys' fees attributable to the settling plaintiffs in Almodova I. Id. at *12-13.

The district judge issued the Order Adopting Magistrate's Findings and Recommendation on April 20, 2010. [CV 07-00378 DAE-LEK (dkt. no. 198).] After approval of the settlements, the district judge approved the parties' stipulation to dismiss the action without prejudice and to allow the remaining plaintiffs, who either did not receive settlement offers or rejected the settlement offers they received, to refile their FLSA claims in a new action under the statute of limitations applicable to CV 07-00378. [Id., Stip. & Order to Dismiss the Action Without Prejudice & Preserve the Statute of Limitations, filed 6/21/10 (dkt. no. 199).] The Stipulation and Order also stated:

9. For the purpose of attorney's fees and costs, Almodova I and Almodova II shall be treated as a continuous action. The fee agreements signed in Almodova I shall remain in full force and effect for Almodova II. Attorney's fees and costs generated during Almodova I shall be recoverable in Almodova II to the extent they would have been recoverable if the action had continued under Almodova I, whether pursuant to a fee agreement or a statutory or other legal entitlement[.] [Id. at 4.]

II. Almodova II

The remaining 183 plaintiffs reasserted their claims in

the instant action, Almodova v. City & County of Honolulu, CV 10-00355 LEK-RLP. The complaint in the instant case alleges violations identical to the violations of the FLSA claims alleged in CV 07-00378. 2011 WL 4828708, at *2 (D. Hawai`i Sept. 30, 2011) ("Almodova II"). On August 31, 2010, after engaging in numerous settlement conferences, Defendant issued individual Offers of Judgment to the 183 plaintiffs. Plaintiffs' counsel communicated the offers to each plaintiff individually, and forty-one accepted. Id. The parties filed a Joint Motion for Approval of Offers of Judgment on August 4, 2011, which the Court granted on September 30, 2011. Id. at *1.

In the instant case, Plaintiffs filed the Fee Motion on June 11, 2012, and Defendant filed a statement of position to the Fee Motion on June 26, 2012 stating that Defendant does not oppose the Fee Motion, provided that this Court approves the underlying settlement agreement. [Dkt. no. 65.] The Parties filed the Joint Settlement Motion on July 23, 2012.


In the instant case, the Parties have entered into a Settlement Agreement that would resolve the claims of all Remaining Plaintiffs in Almodova II.*fn1 The settlement requires Defendant to pay a sum certain as damages, and it calls for the Remaining Plaintiffs to attribute part of the settlement proceeds to satisfy their attorneys' fee obligations. [Mem. in Supp. of Fee Motion at 2.] The Settlement has the following general provisions:

* Defendant will pay to each Plaintiff a gross amount (as reflected in the Settlement), less applicable payroll deductions. Defendant will pay to Plaintiffs' counsel an amount for attorneys' fees and costs that is equal to 33.33% of the gross amount. * Defendant will pay each Plaintiff directly by check. Defendant will pay Plaintiffs' counsel with a separate check. These payments will be made after the Court approves the settlement.

* Defendant has acknowledged its obligations to compensate employees for all hours of work that it suffers or permits them to perform. [Mem. in Supp of Joint Settlement Motion at 8; Motion to File Exhibits Pertaining to Settlement under Seal, filed 7/24/12 (dkt. no. 71-1), Exh. 1 ("Settlement Agreement") at 1-2, 4.]


The FLSA provides:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . The court in [an FLSA] action 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 costs of the action. . . .

29 U.S.C. § 216(b).

As in Almodova I and Almodova II, the Court will review the settlement and Plaintiffs' attorneys' fees and costs, "according to the fairness standard set forth in the seminal case, Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982)." See Almodova II, 2011 WL 4828708, at *3. "Lynn's Food requires the district court to 'scrutiniz[e] the settlement for fairness[,]' and determine that the proposed settlement 'is a fair and reasonable resulution [sic] of a bona fide dispute over FLSA provisions.'" Id. (alterations in Almodova II) (quoting 679 F.2d at 1353, 1355).

The Settlement Agreement between the Parties provides that a portion of the settlement amount be allocated for an award of Plaintiffs' attorneys' fees and costs. This Court has previously looked to the following factors in evaluating a proposed class action settlement for overall fairness: the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.

Id. (some citations omitted) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)).

Class actions and FLSA actions are inherently different, and therefore not all of the factors apply. The majority of the factors, however, do apply and will be useful in determining the fairness of the settlement in this case. See id. In the instant case, the Parties reassert similar arguments as in Almodova I and Almodova II and contend that each of the factors weigh in favor of finding the settlement to be fair and reasonable. [Mem. in Supp. of Joint Settlement Motion at 9-16.] The Remaining Plaintiffs claims are the same as the claims this Court addressed in Almodova II, therefore the Court relies on the analysis previously set forth in Almodova II.

I. Strength of Plaintiffs' Case

This Court has reviewed the strengths and weaknesses of the claims in this case in Almodova II and found that this factor weighed in favor of approving the settlement.

Plaintiffs assert that some of their claims, such as the regular rate and uncompensated work claims, are well grounded in the law, but they acknowledge that the factual elements of the uncompensated work claims may be difficult to prove. Further, a recent Ninth Circuit case found the donning and doffing of uniforms and equipment, one of the larger uncompensated work claims in CV 07-00378 and in the instant case, to be a non-compensable activity under the FLSA when police officers have the option of donning and doffing at home. The Ninth Circuit has also held that an employer is not required to provide compensatory time off on the specific days that the employee requests if the employer allows the time off within a reasonable period thereafter.

Defendant has raised various defenses, including the higher overtime threshold for police officers and fire fighters, credits for overtime payments that Defendant made, and the alleged exemption from the FLSA for police sergeants, police lieutenants, fire captains, fire battalion chiefs, and police dispatch supervisors. Plaintiffs also note that, even prior to CV 07-00378, there was a similar lawsuit against Defendant in 2006. It prompted Defendant to institute certain policies to control overtime work, and these policies could make it more difficult for Plaintiffs to prove their case.

In light of the strengths and potential weaknesses in Plaintiffs' case, the Court finds that the first factor weighs in ...

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