Defendants object that there is no representation that plaintiffs are indigent, or could not have paid the $ 110 hourly fee for union members. Defendants ask that plaintiffs show the degree to which the relevant legal market compensates for contingencies. King v. Palmer, 906 F.2d 762 (D.C.Cir. 1991)
Plaintiffs' counsel offers a copy of the Contingency Fee Agreement signed by plaintiffs (Ex. 2 to Declaration in Support of Reply). It provides for recovery of 40% of net award as a fee. This court concludes that the fee was contingent.
7) TIME LIMITATIONS IMPOSED BY CLIENT OR CIRCUMSTANCES
Plaintiffs' counsel claims the time limitations in this case are continuing. He had either to settle or file suit at the earliest possible time to achieve the greatest retroactivity.
Defendants say there was only an initial delay of four months between the time plaintiffs' counsel first contacted them with a demand and the filing of the case, after defendants declined to settle.
The court concludes that the question of delay is speculative. Every case has to have some deed time between the initial contact and filing suit.
8) AMOUNT INVOLVED AND RESULTS
The total amount of the award is in excess of $ 200,000.00
Plaintiffs achieved their "primary goal," which was compensation for on-call hours. See Rivera v. City of Riverside, 679 F.2d 795, 797 (9th Cir. 1982)
Defendants counter that because plaintiffs did not receive liquidated damages that the award was only half what they requested, and less than the attorney's fee requested (with the multiplier).
This court concludes that plaintiffs did achieve their primary goal. Liquidated damages would have been "icing on the cake" and should not be considered to be something the plaintiffs lost. The result achieved was very good.
9) EXPERIENCE, REPUTATION, ABILITY OF ATTORNEY
Plaintiffs' counsel offers his qualifications in his Declaration and defendants do not dispute that he is a well-qualified labor lawyer. The parties concede counsel's qualifications.
10) UNDESIRABILITY OF CASE
Both sides agree that the case is not undesirable in the sense that there would be no adverse public reaction to plaintiffs' counsel's taking the case. However, plaintiffs' counsel says the case is undesirable in that there is a risk of nonpayment under the contingent fee agreement. Both sides concede the case is not undesirable because of the nature of the dispute. This court finds that the case is not undesirable in the sense that it would cause counsel to lose other clients.
11) NATURE AND LENGTH OF PROFESSIONAL RELATIONSHIP
Both sides agree that this is the first and only case counsel has had with these clients.
12) AWARDS IN SIMILAR CASES
Plaintiffs' counsel offers examples of awards in other cases:
Eight plaintiffs awarded $ 100,000 in attorney's fees and $ 18,455 in damages. Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1468 (9th Cir. 1983).
Plaintiffs awarded $ 25,000 in attorney's fees, $ 12,841.27 in damages. Newhouse v. Robert's Ilima Tours, Inc., 708 F.2d 436 (9th Cir. 1983).
Defendants warn that there is not necessarily a relationship between the amount of damages and the award of fees in different cases.
This court concludes that the amount of the fee award is not tied to the amount of damages - this works both ways - it could mean either that the fee award could be the greater or lesser of the two.
$ 200 per hour is a reasonable fee. 1024.8 hours is a reasonable amount of time, given the circumstances of the case. The additional 51.5 hours were necessary to respond to defendants' motion to amend the judgment and the court's request for substantiation of the amount of the fees.
Use of a multiplier is not justified, since the same factors have been taken into account in the hourly fee, number of hours and contingency agreement and the case is not legally complex or risky enough to justify use of a multiplier. The time spent justified the amount of fees. The issues in this case were novel, given there were few relevant FLSA cases in the U.S. Court of Appeals for the Ninth Circuit and the Renfro case in the Tenth Circuit was only decided at the appellate level after this case had come to trial. The parties concede plaintiffs' counsel is qualified. It is possible counsel's firm was precluded from taking any other FLSA cases, since he was the only one in the firm knowledgeable in that area, but there is no evidence that the firm itself lost business as a result of this case. The issue of delay is speculative. Every case has to have some dead time between the initial contact and filing suit. Plaintiffs did achieve their primary goal. Liquidated damages would have been "icing on the cake" and should not be considered to be something the plaintiffs lost. The result achieved was very good. Both sides concede that the case was not undesirable. Plaintiffs and counsel have had an attorney-client relationship only for this case. The amount or the fee award is not tied to the amount of damages - this works both ways - it could moan either that the fee award could be the greater or the lesser of the two.
Plaintiffs' counsel should receive the full hourly fee multiplied by the full number of hours billed, but with no multiplier. Counsel should also receive the fee for the additional 51.5 hours incurred between April 1, 1992 and date of hearing. The total fee award is $ 215,260.00.
Dated: May 1, 1992
F. STEELE LANGFORD
Chief Magistrate Judge
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