Summary
awarding $400 hourly rate to Troy
Summary of this case from Jian Wu v. Sushi Nomado of Manhattan, Inc.Opinion
18-CV-7342 (JGK) (BCM)
08-04-2023
DIEGO DE LA CRUZ ROSAS, et al., Plaintiffs, v. JUST SALAD 60 THIRD LLC, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. JOHN G. KOELTL
BARBARA MOSES, United States Magistrate Judge.
Before the Court for report and recommendation is the motion of the eight prevailing plaintiffs in this action - Diego De La Cruz Rosas, Adelaido Galeana, Jose Pereda Abarca, Rodolfo Zempalteca Montes, Enrique Dositeo Encalada Abad, Luis Jofree Lema Mayancela, Jose Reinaldo Yuquilema Mullo, and Felipe Ramirez - for an award of attorney's fees and costs following the settlement of their claims under the Fair Labor Standards Act (FSLA) and the New York Labor Law (NYLL). (Dkt. 200.) For the reasons that follow, I recommend that the motion be granted, and that Troy Law, PLLC (Troy Law), which represented plaintiffs throughout this action, be awarded $38,263.28 in fees and $600 in costs, for a total award of $38,863.28.
I. BACKGROUND
A. Prior Actions
The instant action is the third putative class and collective action that Troy Law has pursued in this District on behalf of delivery workers at various "Just Salad" restaurants in New York City, alleging FLSA and NYLL claims for (among other things) unpaid minimum, overtime, and spread-of-hours wages, failure to provide wage notices and statements, illegal tip retention, and unpaid uniform costs. The first such case was Rea v. Just Salad 600 Third LLC, 15-CV-10183-JGK-BCM (S.D.N.Y.) (hereafter Rea), filed on January 6, 2016. In Rea, a total of nine plaintiffs (some of whom opted in after the original complaint was filed) sued 22 limited liability companies (LLCs), operating 22 separate Just Salad locations, as well as the chain's founder and co-owner, Nicholas Kenner, and two passive investors, Laura Pensiero and Rob Crespi. See First Amend. Compl. (Dkt. 12 in Rea) ¶¶ 1-7. The Rea plaintiffs filed an untimely motion for collective certification, which the Court denied on July 12, 2016, for that reason. (See Dkt. 38 in Rea.) Thereafter, in late 2016 and early 2017, each plaintiff accepted an offer of judgment, inclusive of attorneys' fees and costs. The resulting judgments totaled $115,700. (See Dkts. 49-50, 82-88 in Rea.)
Meanwhile, on September 10, 2016, Troy Law filed a similar complaint in Camara. v. Just Salad 600 Third LLC, 16-CV-7078-JGK-BCM (S.D.N.Y.) (hereafter Camara), in which a total of eight plaintiffs (some of whom opted in after the original complaint was filed) sued 23 LLCs (including all of the LLCs sued in Rea), operating 23 separate Just Salad locations, as well as Kenner, Pensiero, and Crespi. See Compl. (Dkt. 1 in Camara) ¶¶ 11-52. The Camara plaintiffs moved for collective certification on March 31, 2017 (Dkt. 21 in Camara), but lost that motion on March 29, 2018, when the Hon. John G. Koeltl, United States District Judge, held that they failed to meet "even the 'modest' threshold at the first stage of collective action analysis to demonstrate that they may be similarly situated because they 'were victims of a common policy or plan that violated the law.'" Camara v. Kenner, 2018 WL 1596195, at *15 (S.D.N.Y. Mar. 29, 2018) (citation omitted). Judge Koeltl found "no evidence that the plaintiffs' allegations ar[o]se from a common policy or plan," noting that the "only uniform policy that the plaintiffs alleged applied to all Just Salad delivery persons was the employee handbook," and that plaintiffs "do not explain how that handbook caused their tips to be illegally retained, caused them to be paid less than the minimum wage, or caused them to be denied overtime compensation." Id.
In the same opinion, Judge Koeltl granted, in part, defendants' motion for summary judgment, dismissing all of plaintiffs' claims against Kenner and the two passive investors, because "no reasonable jury could find," based on the evidence adduced, that they exercised the degree of "functional control" required to render them plaintiffs' "employers" under either federal or state law. Camara, 2018 WL 1596195, at *7. Additionally, the Court dismissed all claims against 17 of the defendant LLCs, because those LLCs operated locations where none of the plaintiffs actually worked. Judge Koeltl held that plaintiffs "failed to identify sufficient evidence that all of the Just Salad franchisee stores are a single employer under either the single integrated enterprise test or the economic realities test." Id. at *9. Lastly, the Court dismissed entirely the claims of three plaintiffs, on statute of limitations grounds, and dismissed some but not all claims asserted by the remaining five plaintiffs. Id. at *16.
Following the summary judgment decision, the remaining parties consented to my jurisdiction for all further proceedings (see Dkt. 110 in Camara), and I referred the case to the Court-annexed mediation program, where a settlement was reached. On October 16, 2018, I approved the parties' settlement agreement, under which the six remaining defendants paid a total of $84,000 to the five remaining plaintiffs, inclusive of legal fees and costs. (See Dkt. 128 in Camara.)
B. This Action
In this action, filed on August 14, 2018, a total of 16 plaintiffs (some of whom opted in after the original complaint was filed) sued Just Salad LLC (described as the "parent company of the other Corporate Defendants"), 24 other Just Salad LLCs (including all of the LLCs sued in Camara), operating 24 separate Just Salad locations, and Kenner. See Compl. (Dkt. 1) ¶¶ 4, 2449, 51-55. Plaintiffs sued on behalf of a putative class consisting of "at least one thousand" members. Id. ¶ 442. Two of the plaintiffs herein - Bernaldo Tlaczani Carranza and Reymundo Molina Medel - were previously plaintiffs in Camara, where their FLSA claims were dismissed with prejudice as time-barred. See Camara, 2018 WL 1596195, at *5, *16.
On September 28, 2018, defendants requested that this action - originally assigned to a different district judge - be deemed "related" to Rea and Camara, and reassigned to Judge Koeltl. (Dkt. 22.) Plaintiffs opposed the request (Dkt. 28), but on October 10, 2018, the case was accepted as related, reassigned to Judge Koeltl, and redesignated to me.
Meanwhile, on October 9, 2018, defendants filed a motion to dismiss the complaint. (Dkt. 25.) After missing both their original and their extended response deadlines, plaintiffs filed opposition papers on November 12, 2018, which the Court accepted. (See Dkts. 33, 35, 38-40.) On April 12, 2019, Judge Koeltl denied the motion. Tecocoatzi-Ortiz v. Just Salad LLC, 2019 WL 158163 (S.D.N.Y. Apr. 12, 2019).
On August 22, 2019, plaintiffs moved for conditional certification of an FLSA collective. (Dkt. 57.) On January 10, 2020, Judge Koeltl denied the motion, ruling from the bench that plaintiffs failed to make "even [the] modest showing necessary for a collective action." See 1/10/20 H'rg. Tr. (Dkt. 77) at 22:25-23:1. Judge Koeltl explained that plaintiffs "failed to allege a common policy or plan of the defendants that violated any aspect of the FLSA, including nonpayment of minimum wages, nonpayment of overtime wages, unlawful kickbacks, and unlawful tip retention." Id. at 24:22-25. Moreover, although the named plaintiffs sued "24 Just Salad locations," they admitted that "they worked for only 14 locations," and defendants asserted that they "worked at only 11 stores." Id. at 25:1-4. As to the locations where one or more plaintiffs actually worked, it was "undisputed that each Just Salad store was run by a different manager who determined the unique working hours for each employee at each store." Id. at 25:6-8. Not surprisingly, therefore, "The named plaintiffs were paid varying rates per hour at various times," and only two "stated that they worked any overtime." Id. at 25:9-13. Judge Koeltl further observed that the centerpiece of plaintiffs' tip-stealing allegations (that "defendants implemented a policy to charge a delivery fee and kept the fee, which should have gone to the delivery persons") was contradicted by the parties' exhibits, which showed that "the fees were implemented by third-party companies," that they were "prominently displayed as not covering gratuities for delivery personnel," and that "the same language . . . informed the consumer that the delivery fee was not a gratuity for the delivery persons." Id. at 26:3-12. "Thus, the plaintiffs have not alleged any common policy or plan of unlawful tip retention by the defendants." Id. at 26:12-14.
Lastly, although at the collective certification stage "plaintiffs only need to demonstrate that similarly situated plaintiffs do in fact exist," an "evidentiary burden" that "may be satisfied by credible witness affidavits," Judge Koeltl found "serious questions about the credibility of the named plaintiffs' affidavits," due to "discrepancies between the affidavits and documents submitted to the Court." 1/10/20 H'rg. Tr. at 26:18-27:5. For instance, although eight plaintiffs attested that they never received "notice that a tip credit was taken toward the minimum wage," "at least seven of them signed a separate tip credit notice." Id. at 27:6-13. Similarly, although eight plaintiffs stated in their affidavits that "they were not provided with time of hire notices and paystubs," at least six of them "were in possession of their paystubs and produced them to the defendants in discovery." Id. at 26:14-18. Thus, Judge Koeltl declined to "rely on those affidavits to support notice to potential members of the collective without discovery towards the veracity of those affidavits." Id. at 26:21-23.
On July 1, 2021, after discovery, defendants moved for summary judgment. (Dkt. 130.) Plaintiffs filed their opposition papers on August 6, 2021. (Dkts. 140-41.) Two days later, they filed a "cross-motion" for class certification (Dkt. 142), seeking to certify a class of "[a]ll deliverymen and food preparers who were employed or are currently employed by Defendants during the six years immediately preceding the initiation of this action[.]" (Dkt. 144 at 1.)
Judge Koeltl granted the motion for summary judgment, in part, and denied the motion for class certification. See Tecocoatzi-Ortiz v. Just Salad LLC, 2022 WL 596831 (S.D.N.Y. Feb. 25, 2022). As in Camara, Judge Koeltl dismissed all of plaintiffs' claims against Kenner, pointing to a lack of "evidence in the record that Kenner ever gave any direction to any of the plaintiffs or ever interacted with any of the plaintiffs," id. at *5; all of plaintiffs' claims against Just Salad LLC, since there was no evidence in the record that "sheds light on the legal relationship, if any, between Just Salad LLC and the other defendants," id. at *2; and all of their claims against the ten LLCs operating individual Just Salad locations where plaintiffs did not work, because plaintiffs once again "fail[ed] to explain how the stores where the plaintiffs did not work had any control or supervision over them." Id. at *6. Additionally, the Court dismissed all of the FLSA claims asserted by eight plaintiffs, either on the merits or (in the case of one plaintiff) for failure to prosecute, and declined to exercise supplemental jurisdiction over their remaining NYLL claims, thus halving the number of plaintiffs. Id. at *3 n.6, *12-*14. Finally, Judge Koeltl dismissed some of the remaining plaintiffs' FLSA minimum wage and tip credit claims, "all claims "based on the allegation that the defendants illegally retained the plaintiffs' tips," most of the remaining plaintiffs' tip credit notice claims, and some of their "non-tipped side work claims." Id. at *6-*7, *10, *12.
Among the plaintiffs who did not survive summary judgment were Medel and Carranza, whose FLSA claims were dismissed - again - as time-barred, and Rodolfo Tecocoatzi-Ortiz, the first-listed plaintiff in the Complaint. See Tecocoatzi-Ortiz, 2022 WL 596831 at *6, *14. Thereafter, the case was recaptioned.
As for plaintiffs' class certification motion, Judge Koeltl first held that it was untimely, and prejudiced defendants, because it was filed "more than three years after [plaintiffs] filed this action, four months after fact discovery closed (and after the defendants had the opportunity to take class discovery), and after the deadline for filing dispositive motions." Tecocoatzi-Ortiz, 2022 WL 596831 at *17. Plaintiffs "offered no adequate explanation for having waited this long to move for class certification," despite the fact that they relied "on their own declarations as the central pieces of evidence in support of their cross motion, which they could have drafted at any time" and which were "similar to the ones that the plaintiffs filed with their motion for conditional collective certification" nearly two years earlier. Id. Turning to the merits, the Court concluded that plaintiffs "plainly failed to demonstrate several necessary conditions for class certification, including commonality, typicality, predominance, and superiority." Id. at *18. Plaintiffs' claims originated not "from any common policy or plan," but rose and fell "based on the particular working conditions experienced by each plaintiff." Id. For instance, Judge Koeltl found that "some plaintiffs signed appropriate tip notices at the proper times while others did not," some "were paid below $7.25 per hour excluding tips while others were not," some "worked overtime while others did not," and some had "evidence that they worked more than 20% of their time on non-tipped work while others do not." Id.
On May 9, 2022 - with trial set to begin nine days later - I conducted a settlement conference. The parties did not resolve all of their claims at the conference, but four days later, on May 13, 2023, they informed the Court that they had "entered into a binding settlement of $120,000 as to the Plaintiffs' damages," with the issue of attorneys' fees "reserved for further settlement discussions or briefing[.]" (Dkt. 189.) On August 9, 2022, in accordance with the parties' settlement agreement (Dkt. 198-1), Judge Koeltl approved the settlement and directed that the case be dismissed, except that "[t]he amount of fees and costs allegedly due Plaintiff's counsel in this lawsuit will be determined by separate application to the Court [or] by agreement between the parties." (Dkts. 199, 204.)
C. The Fee Motion
On September 7, 2022, plaintiffs filed their motion for attorney's fees, supported by a declaration signed by John Troy (Troy Decl.) (Dkt. 201) and a memorandum of law (Pl. Mem.) (Dkt. 202). Plaintiffs seek $269,392.33 in fees for approximately 618 hours of work by four attorneys and a managing clerk, at rates ranging from $650 to $200 per hour, plus $1,844.06 in costs. Troy Decl. ¶¶ 63-65. Pointing to the damages calculation they prepared for settlement purposes, plaintiffs assert that their $120,000 settlement provided them with 101.88% of their unpaid wages, recoverable under the NYLL, and 44.35% of their "unpaid wages, liquidated damages, and wage notice damages," recoverable under the NYLL, making them "prevailing parties entitled to recover attorneys' fees and costs under the FLSA and NYLL." Pl. Mem. at 1-2. The rest of the moving brief is devoted primarily to a discussion of the hourly rates for plaintiffs' counsel. Id. at 3-4.
On October 10, 2022, defendants filed their opposition papers, including a memorandum of law (Def. Mem.) (Dkt. 210) and the declaration of Michael A. Miranda (Miranda Decl.) (Dkt. 209). Defendants argue that Troy Law achieved minimal success, in that the firm failed to certify either a collective or a class, obtained nothing for half of its clients, and - even as to the plaintiffs who survived summary judgment - saw many of their claims dismissed. Def. Mem. at 8-10, 12. Moreover, according to defendants, the dismissed claims were "entirely independent of the remaining claims," such that no compensation should be awarded for work attributed to the unsuccessful claims. Id. at 12-13. Defendants also attack the reliability of Troy Law's time records, challenge the reasonableness of the hours the firm recorded on this case, and object to the rates it seeks for those hours. Id. at 15-24. Defendants emphasize that "this is the third nearly identical case brought by [Troy Law], allowing [the firm] to reuse sections of complaints and motions from the previous cases" and enjoy other time savings based upon "the familiarity and redundancy" of this litigation. Id. at 7.
Defendants point out that, during the discovery period, Troy Law calculated that the eight plaintiffs who ultimately survived summary judgment were entitled to $865,464 in damages. Def. Mem. at 12; see also Miranda Decl. Ex. C (damages calculation). The $120,000 settlement represents only approximately 14% of that figure.
In reply, plaintiffs argue that their motions for collective and class certification were "made in good faith and had a chance of success" when made, and thus that Troy Law's fee award should not be reduced simply because the motions were unsuccessful. Pl. Reply Mem. (Dkt. 211) at 2-3. Plaintiffs generally deny that they "overlitigated the case," id. at 4, pointing out that they won the initial motion to dismiss and that the eight plaintiffs whose claims were dismissed at summary judgment "retained NYLL claims that were dismissed from this case only because the Court declined to retain supplemental jurisdiction over them after granting summary judgment on their FLSA claims." Id. at 5. Additionally, plaintiffs argue that the fee award sought is reasonable because it is only "2.24 times the settlement amount," which is not unusual in a hard fought civil rights case. Id. at 4.
II. DISCUSSION
A. Legal Standards
Plaintiffs who prevail on claims under the FLSA and the NYLL are entitled to recover their reasonable attorneys' fees and costs. See 29 U.S.C. § 216(b); N.Y. Lab. Law §§ 198(1-a), 663(1).
Although the parties here disagree as to the degree of success obtained by Troy Law, it undisputed that the eight plaintiffs who ultimately settled their claims for $120,000 are "prevailing parties" for purposes of the fee-shifting statutes. See Andrews v. City of New York, 118 F.Supp.3d 630, 634-35 (S.D.N.Y. 2015) ("Where plaintiffs obtain a favorable settlement in an action brought pursuant to the FLSA, they constitute prevailing parties and are entitled to attorney's fees.").
"In calculating attorney's fees, the district court must first determine the 'lodestar, [which is] the product of a reasonable hourly rate and the reasonable number of hours required by the case.'" Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)). After this calculation is performed, "a district court may, in extraordinary circumstances, adjust the presumptively reasonable fee," that is, the lodestar, but only "when it 'does not adequately take into account a factor that may properly be considered in determining a reasonable fee.'" Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019) (quoting Millea, 658 F.3d at 167). "[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983
1. Hourly Rates
A reasonable hourly rate is the "rate a paying client would be willing to pay," bearing in mind that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. OfAlbany, 522 F.3d 182, 190 (2d Cir. 2008). The rate awarded must be "in line with . . . prevailing [rates] in the community for similar services by lawyers of reasonably comparable skill, expertise and reputation." McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (alterations in original) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
In determining a reasonable hourly rate, the Second Circuit instructs courts to consider the factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974):
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationships with the client; and (12) [fee] awards in similar cases.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19). Of these, "'the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees in a given case 'is the degree of success obtained' by the plaintiff." Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)). Determining the degree of success obtained "is not limited to inquiring whether a plaintiff prevailed on individual claims," id., and requires assessing "the quantity and quality of relief obtained." Carroll v. Blinken, 105 F.3d 79, 81 (2d. Cir. 1997). In assessing the degree of success - as well as the other Johnson factors - district courts are accorded "wide latitude." Gortat v. Capala Bros., Inc., 621 Fed.Appx. 19, 23 (2d Cir. 2015) (citation omitted); accord Barfield, 537 F.3d at 151 ("We afford a district court considerable discretion in determining what constitutes reasonable attorney's fees in a given case.").
2. Compensable Hours
"In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant, or otherwise unnecessary hours[.]" Chen v. Shanghai Cafe Deluxe, Inc., 2023 WL 2401376, at *16 (S.D.N.Y. Mar. 8, 2023) (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)). The court may also reduce hours "where the attorney's proffered time records are vague or otherwise inadequate to enable the court to determine the reasonableness of the work performed or the time expended." Wen v. Hair Party 24 Hours Inc., 2021 WL 3375615, at *14 (S.D.N.Y. May 17, 2021) (citing Hensley, 461 U.S. at 433), report and recommendation adopted, 2021 WL 2767152 (S.D.N.Y. July 2, 2021). However, courts "need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection." Hines v. City of Albany, 613 Fed.Appx. 52, 54 (2d Cir. 2015) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)) (quotation marks omitted). Thus, "in dealing with items that are 'excessive, redundant, or otherwise unnecessary, . . . the [district] court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.'" Id. at 5455 (quoting Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998)); accord Green v. City of New York, 403 Fed.Appx. 626, 630 (2d Cir. 2010).
Only prevailing plaintiffs are entitled to recover their fees. Thus, where "an attorney represents multiple parties and not all prevail," the court "should exercise discretion to reduce the fee to reflect a reasonable amount of time spent on the prevailing party's case." Decastro v. City of New York, 2017 WL 4386372, at *7 (S.D.N.Y. Sept. 30, 2017) (quoting Norwood v. Salvatore, 2016 WL 1060299, at *6 (N.D.N.Y. Mar. 15, 2016)). The reduction need not be pro rata, particularly where "some work done on behalf of the non-prevailing Plaintiffs was required for the prevailing Plaintiffs to win[.]" Williams v. Epic Security Corp., 368 F.Supp.3d 651, 661-62 (S.D.N.Y. 2019); see also, e.g., Adorno v. Port Auth. Of New York & New Jersey, 685 F.Supp.2d 507, 518 (S.D.N.Y. 2010) (Chin, J.) (applying a 60% reduction where two out of seven plaintiffs prevailed, because "some of the additional time would have been required even if this had only been a two-plaintiff case"), reconsidered in part on other grounds, 2010 WL 727480 (S.D.N.Y. Mar. 2, 2010); Makinen v. City of New York, 2019 WL 970945, at *3 (S.D.N.Y. Feb. 28, 2019) (applying a 30% reduction where two of the three plaintiffs prevailed at trial but lost on appeal).
Reductions are also in order where a prevailing plaintiff "has failed to prevail on a claim that is distinct in all respects from his successful claims." Pardovani v. Crown BuildingMaint. Co., 2023 WL 3597615, at *2 (S.D.N.Y. May 23, 2023). In such a case, "the hours spent on the unsuccessful claims should be excluded in considering the amount of a reasonable fee." Id. If the failed claims were "based on different facts and legal theories" than the failed claims, "no fee may be awarded for services on the unsuccessful claim[s]." Hensley, 461 U.S. at 434-35. But where both the failed claims and the successful claims "involve a common core of facts or will be based on related theories," making it "difficult to divide the hours expended on a claim-by-claim basis," the district court "should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. at 435; see also Quaratino, 166 F.3d at 425 (attorneys' fees may be awarded for unsuccessful claims "where they are 'inextricably intertwined'" with successful claims and "involve a common core of facts or are based on related legal theories") (quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996)).
Finally, while success is not generally calculated on a motion-by-motion basis, "the denial of a class or collective action certification motion justifies a reduction in fees, given the impact that such certification may have on the quantity and quality of the available relief." Jianmin Jin v. Shanghai Original, Inc., 2020 WL 4783399, at *7 (E.D.N.Y. Aug. 18, 2020) (quoting Callari v. Blackman Plumbing Supply, Inc., 2020 WL 2771008, at *15 (E.D.N.Y. May 4, 2020), report and recommendation adopted, 2020 WL 2769266 (E.D.N.Y. May 28, 2020)); see also Barfield, 537 F.3d at 152 (affirming a 50% reduction in the fees sought by the plaintiff in an FLSA case in light of plaintiff's failure to secure collective certification); Siegel v. Bloomberg L.P., 2016 WL 1211849, at *10 (S.D.N.Y. Mar. 22, 2016) (reducing fees of lead counsel by 45% where plaintiffs "were successful in moving for conditional certification of the collective action" but failed to certify a Rule 23 class, thus limiting the action to those who affirmatively opted in and "significantly reducing Plaintiffs' possible recovery as compared to what might have been recovered if class certification had been granted.").
B. Reasonableness of Hourly Rates Sought
Plaintiffs seek fees for work performed by five Troy Law attorneys and paraprofessionals: managing attorney John Troy (at $650 per hour); managing associate Aaron Schweitzer (at $400 per hour); associates Eric Yige Chen and Tiffany Troy (both at $250 per hour), and managing clerk Preethi Kilaru (at $200 per hour). See Troy Decl. at ECF p. 30 (chart).
After consideration of all of the Johnson factors, I conclude that these rates are unreasonably high. "A treatise worth of case law has emerged about the rates and hours that Troy Law has requested." Garcia v. Francis Gen. Construction Inc., 2022 WL 2698434, at *7 (S.D.N.Y. July 12, 2022). In Garcia, and in virtually every other case considering fee applications prepared by Troy Law, "courts have balked" at the firm's requested rates. Id. (collecting cases and awarding $300 per hour for John Troy, $150 per hour for Schweitzer and for Tiffany Troy, and $70 per hour for Kilaru); see also Yuan v. & Hair Lounge Inc., 2023 WL 4534872, at *5-*7 (S.D.N.Y. June 28, 2023) (Moses, J.) (recommending $400 per hour for John Troy, $250 per hour for Schweitzer, $150 per hour for Chen and Tiffany Troy, and $75 per hour for Kilaru), report and recommendation adopted, 2023 WL 4535085 (S.D.N.Y. July 13, 2023); Lu Wan v. YWL USA Inc., 2021 WL 1905036, at *6 (S.D.N.Y. May 12, 2021) (observing that "courts that have thoroughly scrutinized Troy Law's requests for fees have awarded lower rates," and awarding $325 per hour for John Troy, $175 per hour for Schweitzer, and $75 per hour for Kilaru and Tiffany Troy); Wang v. XBB, Inc., 2023 WL 2614143, at *5, *8 (E.D.N.Y. Mar. 23, 2023) (noting that "Troy Law has been reprimanded numerous times for its billing practices," and awarding fees at the rate of $400 per hour for John Troy, $200 per hour for Schweitzer, $75 for Kilaru, and $0 for Tiffany Troy, because "interpreting services are distinct from legal services and are not awarded as a component of attorney's fees") (quoting Szczepanek v. Dabek, 2011 WL 846193, at *8 (E.D.N.Y. Mar. 7, 2011)).
Generally speaking, "[c]ourts in this District have determined that a fee ranging from $250 to $450 is appropriate for experienced litigators in wage-and-hour cases." Shanghai Cafe Deluxe, 2023 WL 2401376, at *15 (citation and internal quotation marks omitted); see also Gao v. Umi Sushi, 2023 WL 2118203, at *12 (S.D.N.Y. Jan. 31, 2023) ("[A] reasonable rate for senior attorneys handling wage-and-hour cases, in this market, typically ranges from $300 and $400 per hour.") (quoting Lu Wan, 2021 WL 1905036, at *5). "For partners or heads of small law firms practicing in this area, the Court has usually approved hourly rates in the $300 to $450 range." De La Cruz v. Trejo Liquors, Inc., 2019 WL 9573763, at *18 (S.D.N.Y. Sept. 10, 2019) (citation omitted), report and recommendation adopted, 2020 WL 4432298 (S.D.N.Y. July 30, 2020). For junior associates, $100 to $200 per hour is the norm in this Circuit. Hong v. Mito Asian Fusion, Inc., 2023 WL 3092722, at *4 (E.D.N.Y. Apr. 26, 2023) (collecting cases); see also Wang, 2023 WL 2614143, at *5 ("Junior associates generally command $100 to $150.") (cleaned up).
1. John Troy
John Troy received an LLM degree from Dickinson School of Law in 1985, was admitted to the New York bar in 1989, and is the principal of Troy Law. Troy Decl. ¶ 12. According to his declaration, Troy is the attorney of record in at least 206 wage and hour cases in the Southern District of New York, 176 in the Eastern District of New York, 40 in other federal courts, and 12 in arbitration. Id. ¶¶ 15-18.
Notwithstanding his lengthy case list, John Troy points to no case in which he was paid $650 per hour by a client or awarded $650 per hour by a court. Instead, he attests that a New York state court once issued an oral order awarding him $600 per hour, Troy Decl. ¶ 25, and notes that he was granted $550 per hour in three recent cases in this District. Id. In two of those cases, the defendants defaulted and the fee application was unopposed. See Xu v. Kealoha Sushi Inc., 2021 U.S. Dist. LEXIS 161396, *15 (S.D.N.Y. Aug. 24, 2021); Hu v. 226 Wild Ginger Inc., 2020 WL 6324090, at *8 (S.D.N.Y. Oct. 7, 2020), report and recommendation adopted, 2020 WL 6324088 (S.D.N.Y. Oct. 27, 2020). Moreover, in Kealoha Sushi, the magistrate judge's recommendation was never adopted by the district judge. In the third case, the district judge awarded John Troy $550 for half of his hours and $300 for the other half, during which he performed "associate - and even paralegal-level work." Weng v. Kung Fu Little Steamed Buns Ramen, Inc., 2021 WL 2043399, at *2 (S.D.N.Y. May 21, 2021).
While the recommendation was pending, the plaintiff accepted an offer of judgment pursuant to Fed.R.Civ.P. 68 that was inclusive of attorneys' fees in an undisclosed amount. See Judgment (Dkt. 102), Xu v. Kealoha Sushi Inc., No. 19-CV-11885-PAE-SBA (S.D.N.Y. Dec. 15, 2021).
In other recent cases, John Troy has been awarded fees in the range of $300 to $400 per hour. See, e.g., Yuan, 2023 WL 4534872, at *5 (recommending that John Troy's rate be set at $400 per hour); Sanango v. Ruby Nails Tarrytown, 2023 WL 2707329, at *6 (S.D.N.Y. Mar. 30, 2023) (setting John Troy's rate at $300 per hour, due in part to Troy Law's failure to comply with the court's individual practices and failure to timely prosecute the case); Wang, 2023 WL 2614143, at *4 (rejecting John Troy's bid for $650 per hour and awarding $400 because "neither Troy's reputation generally, nor his firm's performance in this particular case, warrants [the] high hourly rates" requested); Shanghai Cafe Deluxe, 2023 WL 2401376, at *15-16 (awarding $300 per hour to John Troy due to the "consistently poor quality of his work") (citation omitted); Gao, 2023 WL 2118203, at *12 (rejecting the $600 per hour rate requested for John Troy and recommending $375); Garcia, 2022 WL 2698434, at *7 (awarding $300 per hour for John Troy's time where "Troy Law repeatedly submitted memoranda and affidavits with discrepancies and errors" and his timesheets included "tasks that a paralegal or junior attorney could perform"); Lu Wan, 2021 WL 1905036, at *6 (awarding John Troy $325 per hour).
Plaintiffs offer no reason why John Troy should be awarded an above-market rate in this case, much less a higher rate than he has ever been granted in any other case. His time records reflect that he drafted the complaint (which largely tracked the complaints in Rea and Camara), prepared the motions for collective and class certification (both of which were denied), met with clients and arranged their participation in the case, reviewed filings, and performed discovery-related work, such as drafting and responding to interrogatories and document requests. See Troy Decl. Ex. 1 (Troy Law time records) at ECF pp. 1-20. I therefore recommend that his rate be fixed at $400 per hour for all time that he reasonably expended - and used to perform legal work - on behalf of the prevailing plaintiffs.
As discussed in more detail below, John Troy seeks fees at $650 per hour not only for his legal work but also for a variety of paraprofessional and administrative tasks.
2. Aaron Schweitzer
Attorney Schweitzer graduated from Fordham University School of Law in 2016, was admitted to the New Jersey bar in 2017 and the New York bar the following year, and serves as the managing associate at Troy Law. Troy Decl. ¶¶ 27-29. According to Troy's declaration, Schweitzer is an attorney in at least 99 cases in the Southern District of New York, 83 in the Eastern District, and 21 in other federal courts. Id. ¶¶ 36-39. In August 2022, when the parties settled this case, Schweitzer had approximately five years of legal experience. Id. ¶ 29. Troy asserts that Schweitzer charges $400 per hour (the same rate he seeks here) in "non-contingent fee structure matters," id. ¶ 34, but no further information or corroborating documentation is provided.
The only case in which Schweitzer was awarded $400 per hour is a New York state proceeding in which the award was made in an oral order. Troy Decl. ¶ 40. Otherwise, the Troy declaration relies on federal cases in which Schweitzer was awarded an hourly rate of $350, id., including Kealoha Sushi, in which, as discussed above, the district judge never approved that rate. See also Weng, 2021 WL 2043399, at *2 ($350 per hour, after trial); Wild Ginger, 2020 WL 6324090, at *8 ($350 per hour, post-default); Zhang, 2019 WL 6318341, at *4 ($350 per hour, post-default).
In other recent cases, Schweitzer has been awarded significantly lower rates. See, e.g., Yuan, 2023 WL 4534872, at *6 ($250 per hour, after trying case before jury and obtaining favorable result of one of the two plaintiffs); Hong, 2023 WL 3092722, at *5 ($200 per hour, after settlement); Sanango, 2023 WL 2707329, at *6 ($150 per hour, after default); Shanghai Cafe Deluxe, 2023 WL 2401376, at *16 ($150 per hour, after default); Gao, 2023 WL 2118203, at *13 ($250 per hour, after default, "in light of his less than five years of experience as a lawyer"); Garcia, 2022 WL 2698434, at *7 ($150 per hour, after default); Lu Wan, 2021 WL 1905036, at *6 ($175 per hour, after plaintiffs accepted a Rule 68 offer of judgment).
Plaintiffs offer no justification for the exceptionally high hourly rate sought for Schweitzer in this case - a rate usually awarded only to partner-level attorneys with considerably more experience and better professional reputations. See, e.g., Gao, 2023 WL 2118203, at *12 ($300 to $400 per hour for "experienced wage-and-hour attorneys"); Lee v. Mani & Pedi Inc., 2022 WL 3645118, at *4-5 (S.D.N.Y. Aug. 24, 2022) (awarding $350 per hour to a senior associate with "over twenty years of experience in civil litigation and employment law," who acted as lead trial counsel, and $300 per hour to a senior associate with "nine years of experience in litigation and employment law").
See Yuan, 2023 WL 4534872, at *6 n.5 (collecting recent cases in which attorney Schweitzer has been threatened with or incurred sanctions for litigation misconduct).
Troy Law's billing records show that Schweitzer began working on this case in August 2018, when he had approximately one year of experience in wage and hour litigation. Troy Decl. Ex. 1, at ECF p. 3. Thereafter, Schweitzer prepared plaintiffs' papers in opposition to defendants' motion to dismiss, argued in opposition to the motion, prepared plaintiffs' papers in opposition to defendants' summary judgment motion, and participated in the settlement conference. Given Schweitzer's relative inexperience, his reputational issues, and his limited role in this action, I recommend that his rate be set at $250 for all of the time that he reasonably expended - and used to perform legal work - on behalf of the prevailing plaintiffs.
3. Eric Yige Chen
Attorney Chen was admitted to practice in New York on December 31, 2020. Troy Decl. ¶ 44. Apart from one billing entry that precedes his admission to practice, all of his work on this matter took place within his first year of practice (through July 2021), and most of it involved drafting affidavits and discovery responses, although he also prepared for and defended the depositions of several plaintiffs. See id. Ex. 1, at ECF pp. 10-16. In Zang v. Daxi Sichuan, Inc., 2023 WL 2305934, at *4 (E.D.N.Y. Mar. 1, 2023), Chen was awarded $100 per hour for work performed at roughly the same time as the work he performed in this case, and in Yuan, he was awarded $150 per hour. 2023 WL 4534872, at *7. Given Chen's junior status, I again recommend a rate of $150 per hour.
4. Preethi Kilaru
Preethi Kilaru, Troy Law's managing clerk, performed a range of clerical and paraprofessional services in this case, for which plaintiffs seek fees at the uniform rate of $200 per hour. See, e.g., Troy Decl. Ex. 1, at ECF pp. 4, 6, 8 (seeking $200 per hour for preparing courtesy copies, scanning documents, scheduling proceedings, applying redactions, and drafting damages calculation charts). Kilaru was awarded her requested rate in two cases, see Weng, 2021 WL 204339, at *2; Wild Ginger, 2020 WL 6324090, at *8, but is typically awarded fees of less than $100 per hour. See, e.g, Yuan, 2023 WL 4534872, at *7 ($75 per hour); Hong, 2023 WL 3092722, at *5 ($75 per hour); Sanango, 2023 WL 2707329, at *6 ($70 per hour); Wang, 2023 WL 2614143, at *6 ($75 per hour); Shanghai Cafe Deluxe, 2023 WL 2401376, at *17 ($70 per hour); Garcia, 2022 WL 2698434, at *8 ($70 per hour); Zhang, 2022 WL 2668263, at *17 ($70 per hour). Because Kilaru appears to have performed clerical and paralegal work on this case, an hourly rate of $75 is appropriate.
5. Tiffany Troy
Tiffany Troy graduated from Fordham School of Law and was admitted to the New York bar on June 24, 2021. Troy Decl. ¶¶ 49-50. In addition, since 2019 she has been an "NYS Unified Court System Mandarin Chinese interpreter." Id. ¶ 55. Most of her work in this action preceded her admission to the bar consisted of paralegal or translator services. See Troy Decl. Ex. 1, at ECF pp. 1-15 (reflecting that Tiffany Troy drafted damages calculation charts, scanned documents, organized responses to document requests, scheduled depositions, and translated "Spanish-English").
It is not clear what qualifications Tiffany Troy possesses to translate to and from Spanish, as opposed to Mandarin Chinese.
Insofar as can be determined from the public record, Tiffany Troy has never been awarded $250 per hour for her services as an attorney. To the extent she performed legal services in this case, there is no reason why her hourly rate should be higher than the rate fixed for the other junior associate who worked on the same matter. For her non-legal work - including the tasks that she performed before her admission to the bar and the translator work that she performed postadmission - she should be paid a reasonable paraprofessional rate. In Hong, the court set Tiffany Troy's hourly rate at $75 for the work she performed prior to admission and $150 for legal work "completed after Ms. Troy was admitted to practice." 2023 WL 3092722, at *6. I recommend doing the same here.
C. Reasonableness of Hours Expended
As noted above, plaintiffs seek a fee award reflecting almost 618 hours of work performed on this case by Troy Law personnel between June 2018 and September 2022. See Troy Decl. at ECF p. 30 (chart); id. Ex. 1, at ECF pp. 1-20. Significant reductions are required.
First, Troy Law's records reveal multiple instances of attorneys performing paralegal and/or clerical work - such as scanning documents, creating binders, posting documents to ECF, searching publicly-available property records, and creating text messaging groups with clients -at the same hourly rates that they seek for writing briefs and defending depositions. See Troy Decl. Ex. 1, at ECF pp. 1-5. Additionally, Tiffany Troy billed a total of 6.3 hours for Spanish-English translation work on March 6, 2021 - before she was admitted to the bar - at her full (requested) attorney rate of $250 per hour. Id. at ECF p. 12. Although it is often "reasonable to pay for a translator or paralegal . . . to communicate with the client effectively," "'[t]ranslation . . . is not legal work,' and thus, is not compensable as attorney time." Lee, 2022 WL 3645118, at *7 (collecting cases) (citation omitted).
Second, the firm's records reflect unnecessary and duplicative work, particularly given the time savings that were available to the firm in light of the overlap between this action and the previous two. See Ortiz v. Chop't Creative Salad Co. LLC, 89 F.Supp.3d 573, 593 (S.D.N.Y. 2015) (finding that "the number of attorneys and the number of hours expended drafting, editing and revising the complaint was excessive, duplicative and unnecessary," particularly given counsel's ability to "utilize sections from the previous complaints to draft the instant complaint"). For example, John Troy recorded 8.5 hours to draft and review the complaint, despite its similarity to the previous two. Troy Decl. Ex. 1, at ECF p. 2. He also recorded 6.5 hours to file 13 FLSA consent-to-sue forms, identical (save for the signatures) to those used in the previous two actions. Id. As the court noted in Ortiz, 89 F.Supp.3d at 593-94, excessive time billed for "consent forms contain[ing] standardized text the plaintiffs' counsel used in other wage and hours class action litigations, previously, in this court," is an indicator or "unjustified and unnecessary duplication of work."
The consent forms of plaintiffs Carranza and Medel (who were previously plaintiffs in Camara) are undated, and appear to be identical to those filed in Camara. Compare Dkts. 15-16 with Dkts. 14, 34 in Camara. As to these forms, therefore, it appears that Troy Law did not even obtain fresh signatures.
Third, Troy Law's timesheets are replete with eyebrow-raising entries that - if not outright "fraud," as defendants charge, see Def. Mem. at 16 - cannot have been the product of honest and conscientious timekeeping. For example, as noted above, John Troy recorded exactly 0.5 hours of work to "file" each of the 13 FLSA consent-to-sue forms that were posted to the docket on August 14, 2022. See Troy Decl. Ex. 1, at ECF p. 2. That same day, he recorded one hour to "file" the complaint (which he had previously drafted), and another 0.5 hours to "file" a request for the issuance of a summons. See id. Thus, John Troy billed a total of eight hours of work for tasks that a competent paralegal could likely accomplish inside of an hour. There is nothing "reasonable" about a senior attorney, who seeks $650 per hour for his time, spending an entire day uploading 15 documents to the Court's electronic docket. Moreover, this particular form of bill-padding appears to be standard operating procedure for John Troy. See, e.g., Chen, 2023 WL 2401376, at *16 (noting that "John Troy, the firm's named partner, billed time for filing the complaint, filing a consent form for the plaintiff to become a party, and filing a request for issuance of a summons," even though "those clerical tasks could have been performed by a junior attorney or a paralegal"); Gao, 2023 WL 2118203, at *13 (identifying, as part of the "substantial evidence of overbilling" by John Troy, that he recorded "4.5 hours to file with the Court the complaint and related documents").
Additionally, as defendants point out, Troy Law suspiciously "billed the exact same amount of time for each day plaintiffs were deposed," Miranda Decl. ¶ 117, recording exactly seven hours each on March 8, 9, 15, 16, and 18, 2021, to defend the depositions of various plaintiffs. Troy Decl. Ex. 1, at ECF pp. 12-13. Similarly, attorney Chen recorded exactly seven hours on March 8, 2021, to "watch" the deposition of plaintiff Carranza. Id. at ECF p. 12.Thereafter, on March 24, 2022, Chen billed exactly seven hours to defend the deposition of two other plaintiffs, and on March 25, 2023, he billed exactly seven hours to defend the deposition of plaintiff Felipe Ramirez Ocegueda. Id. at ECF pp. 13-14. Defendants, however, have helpfully supplied the transcript from the Ramirez Ocegueda deposition, which shows that it lasted just three hours and 18 minutes. Miranda Decl. ¶ 123 & Ex. O, at ECF pp. 3-4.
It is of course entirely inappropriate to seek $1,750 in fees for watching a deposition being defended by another attorney. Even if Chen were actually performing legal work, the hours recorded would be questionable, given that Carranza was just one of two plaintiffs whose depositions John Troy defended that day. See Troy Decl. Ex. 1, at ECF p. 12.
Other courts have also noted inaccurate - and sometimes wildly inflated - billing entries by Troy Law in FLSA cases. See, e.g., Hong, 2023 WL 3092722, at *8 (observing that "some of Plaintiff's billing records appear to include inflated entries," such as a mediation session that John Troy apparently overbilled by two hours); Wang, 2023 WL 2614143, at *8 (warning that in light of the firm's "blatant attempts to improperly inflate its attorneys' fees request," the court "came close to sanctioning Troy Law," and directing the firm "to clean up its billing and fee request practices"); Gao, 2023 WL 2118203, at *14 (expressing "reservations" about awarding any attorneys' fees at all to Troy Law, "[g]iven the errors and unreasonable entries in the billing record," and ultimately awarding reduced fees, in part "[b]ecause the Defendants did not contest Plaintiffs' submission"). As a result of Troy Law's dubious billing practices, these and other courts have substantially reduced the firm's compensable hours when awarding fees. See, e.g., Gao, 2023 WL 2118203, at *14 (reducing John Troy's hours by 50% "[g]iven the errors and unreasonable entries in the billing record"); Lu Wan, 2021WL 1905036, at *7 (reducing attorney hours by 40% - after also reducing hours to eliminate clerical work - due to "excessive or otherwise unnecessary hours").
Troy Law similarly - with suspicious uniformity - billed 1.4 hours each time a lawyer or paraprofessional drafted a "damages calculation chart" for a plaintiff, see Troy Decl. Ex. 1, at ECF pp. 1, 3, 5, 8, and exactly one hour, before each deposition preparation session or deposition in March 2021, for "Deposition Set Up" by Tiffany Troy. Id. at ECF pp. 12-13. It is simply not credible that each time an attorney or paraprofessional calculated damages for a plaintiff in this case - regardless of how long the plaintiff worked at a Just Salad location or what claims that plaintiff brought - the task required exactly 1.4 hours to complete. See, e.g., Miranda Decl. Ex. N, at ECF p. 2 (showing that plaintiff Baten's damages chart, which allegedly took 1.4 hours to create, consisted of one line). Similarly, the Court cannot credit that each deposition or deposition prep session in March 2021 required exactly one hour of vaguely-described "set up," by an employee not yet graduated from law school, at a cost of $250.
On July 8, 2018, Tiffany Troy (who had not yet graduated from law school) billed 1.4 hours each to draft damages calculation charts for plaintiffs Abad, Zempoalteca Montes, Rosario, De la Cruz Rosas and Baten. Troy Decl. Ex. 1, at ECF p. 1. On July 15, 2018, she billed 1.4 hours each to draft charts for plaintiffs Sanchez and Mayancela, and on July 28, 2018, she billed 1.4 hours each to draft charts for plaintiffs Abarca and Ramos Flores. Id. at ECF p. 1. On August 19, 2018, Aaron Schweitzer billed 1.4 hours to draft a damages calculation chart for plaintiff Mullo; on August 24, 2018, he billed 1.4 hours to draft the damages calculation chart for plaintiff Mayancela (which Tiffany Troy had already billed time to draft); and on August 25, 2018, he billed 1.4 hours to draft the damages calculation chart for plaintiff Tecocoatzi-Ortiz. Id. at ECF p. 3. On December 27, 2018, Tiffany Troy billed 1.4 hours each to draft charts for plaintiffs Fernandez and Ramirez. Id. at ECF p. 5. And on September 30, 2019, Preethi Kilaru billed 1.4 hours to draft the chart for plaintiff Abad (which Tiffany Troy had already billed time to draft), while Aaron Schweitzer billed 1.4 hours to draft the chart for plaintiff Carranza (whose chart had, in all likelihood, been previously prepared in the Camara case). Id. at ECF p. 8.
Lastly, the degree of success that Troy Law achieved on behalf of its clients, which is "'the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees," Barfield, 537 F.3d at 152, warrants a substantial reduction in the hours for which counsel should be compensated. The firm failed to certify either a collective or a class action, failed to obtain any recovery at all for half of its clients, and saw many of its remaining clients' claims dismissed on summary judgment, yet asks this Court for a fee award covering every hour that its lawyers and paraprofessionals spent (or say they spent) on the case. There is no basis in the law for such a brazen request.
Here, as in Barfield, an across-the-board reduction is warranted in light of Troy Law's failure to certify either a collective or a class action. Certification appears to have been the "primary aim" of the litigation, 537 F.3d at 152, as it would have permitted many more workers to recover - "at least one thousand," according to plaintiffs, see Compl. ¶ 442 - and would have validated the basic theory behind all of the firm's Just Salad cases, which was that defendants constituted a single, integrated "enterprise" that "systematically, willfully and intentionally committed widespread violations of the FLSA and the NYLL," id. ¶ 3 by, among other things, retaining the "delivery fee" charged on website and credit card orders and "engaging in a pattern and practice of failing to pay its employees . . . minimum wage and overtime compensation for all hours worked over forty (40) each workweek." Id. ¶¶ 3, 7, 56, 64, 67-69; see also id. ¶ 444 ("All the Class members were subject to the same corporate practices of Defendants, as alleged herein, of failing to pay at least the minimum wage for each hour worked and overtime compensation at one and a half times the minimum wage for each hour worked.").
Barfield involved a failed collection certification motion. Following Barfield, however, "courts in the Second Circuit have routinely reduced attorneys' fees not only for unsuccessful collective action motions but also for unsuccessful class certification motions." Callari, 2020 WL 2771008, at *15; see also Siegel, 2016 WL 1211849, at *10 (reducing compensable hours due to unsuccessful class certification motion); Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 13 (S.D.N.Y. June 12, 2015) (same).
In denying plaintiffs' collective certification motion, however, the Court found that they "failed to allege a common policy or plan of the defendants that violated any aspect of the FLSA." 1/10/20 H'rg. Tr. at 24:22-25. And in denying the class certification motion, made after full discovery, the Court found that plaintiffs' claims "do not arise from any common policy or plan," but rather "rise and fall based on the particular working conditions experienced by each plaintiff." Tecocoatzi-Ortiz, 2022 WL 596831, at *19. Thus, plaintiffs were unable to proceed on a collective or class basis; unable to obtain declaratory or injunctive relief, see Compl. at 83; unable to pursue the Just Salad locations where no plaintiffs worked; and unable to obtain any recovery from Just Salad LLC, the alleged (but unproven) "parent company" of the individual store franchises, see id. ¶¶ 25, 51, 64(a), or from Kenner, its alleged CEO, see id. ¶ 52. As Judge Koeltl explained, the evidentiary record compiled by Troy Law was "devoid of any evidence suggesting that all the Just Salad stores are part of the same corporate structure or under common ownership and management," 2022 WL 596831, at *6, and equally devoid of "any evidence regarding Kenner's role in any just Salad Store." Id. at *5.
Since the failure of the collective and class motions significantly reduced the value of the case as a whole, "an across-the-board reduction of fees is more appropriate rather than deducting the hours attributable to the unsuccessful . . . certification motion[s] only." Callari, 2020 WL 2771008, at *15; see also Adorno, 685 F.Supp.2d at 518 (observing that "while two of the seven plaintiffs each prevailed on one of several claims, plaintiffs' sweeping attempt to prove that the Port Authority engaged in a broad pattern and practice of discrimination and retaliation against its Hispanic police officers failed" and reducing "the presumptively reasonable fee by 60% to account for plaintiffs' lack of success"). Moreover, this case constituted Troy Law's third attempt to pursue Just Salad on a collective or class basis, at considerable cost to defendants. I am therefore mindful that "not reducing the fee award in these circumstances" would pose the risk of "encouraging plaintiffs' lawyers to file collective action-based claims even where there is little basis for doing so." Barfield, 537 F.3d at 152.
A further reduction is warranted in light of Troy Law's failure to obtain any recovery for eight of its 16 individual clients, who consequently were not "prevailing parties," and the fact that it achieved only limited relief for the remaining eight. See Decastro, 2017 WL 4386372, at *7 (reducing compensable hours to "reflect a reasonable amount of time spent on the prevailing [parties'] case"); Jin, 2020 WL 4783399, at *8 (reducing Troy Law's compensable hours by 70% where, among other things, only one of the two named plaintiffs prevailed on his claims, "against three of the ten identified defendants"). Although "some work done on behalf of the non-prevailing Plaintiffs" may have been "required for the prevailing Plaintiffs to win," Williams, 368 F.Supp.3d at 661-62 (such as litigating defendants' motion to dismiss), the cost of other work (such as defending the depositions of the non-prevailing plaintiffs and attempting to salvage their claims at summary judgment) cannot possibly be compensable in an award to the "prevailing plaintiffs." See Tecocoatzi-Ortiz, 2022 WL 596831, at *19 (noting that "a detailed analysis of evidence particular to each plaintiff" was required). The same is true with respect to the claims that failed on an individual basis. See Williams, 368 F.Supp.3d at 660 (reducing counsel's compensable hours to reflect both "the number of prevailing Plaintiffs" and "the fact that even the prevailing Plaintiffs were not successful on all their claims").
In order to account for (i) the egregious overbilling by Troy Law, (ii) its failure to certify any form of collective or class action, (iii) its failure to obtain any recovery at all for half of its clients, and (iv) the loss of multiple individual claims asserted even by the surviving plaintiffs, I recommend that the firm's compensable hours be reduced by 70% overall, and that John Troy's compensable hours be reduced by 80%. Not only was John Troy primarily responsible for the collective certification and class certification motions; his personal timekeeping practices -including, in this case, billing eight hours to upload a handful of documents to ECF, and another seven hours to defend a deposition that lasted three hours and 18 minutes - bring his namesake firm into disrepute, and give the Court little confidence that any of Troy Law's time entries are accurate. Further, in their moving papers (signed by John Troy), plaintiffs failed even to acknowledge the multiple grounds on which the firm's recorded hours required reduction, much less volunteer even a pro forma trim. In their reply brief (also signed by John Troy), plaintiffs doubled down, arguing that Troy Law "deserves fees" for all of its work, including work on behalf of the eight plaintiffs whose claims were dismissed in toto, because they had "meritorious" state law claims that were dismissed on discretionary grounds. Pl. Reply Mem. at 5.
I note, in this regard, that it was John Troy who "instructed" and "supervised" the other lawyers and paraprofessionals at the firm regarding their "contemporaneous time records." Troy Decl. ¶ 9.
Unsurprisingly, Troy Law makes no showing that it refiled those dismissed state law claims in state court, or made any other effort to obtain recoveries for the affected clients.
The recommended reductions, coupled with reduced hourly rates discussed in Part II(B) above, result in a recommended fee award of $38,263.28 to Troy Law, as set forth below:
| Individual | Requested Rate | Reasonable Rate | Recorded Hours | Reduction | Reasonable Hours | Adjusted Fees |
| John Troy | $ 650 | $ 400 | 225.81 | 80% | 45.162 | $18,064.80 |
| Aaron Schweitzer | $ 400 | $ 250 | 169.53 | 70% | 50.859 | $12,714.75 |
| Eric Yige Chen | $ 250 | $ 150 | 95.76 | 70% | 28.728 | $ 4,309.20 |
| Preethi Kilaru | $ 200 | $ 75 | 28.42 | 70% | 8.526 | $ 639.45 |
| Tiffany Troy - Admitted Rate | $ 250 | $ 150 | 14.24 | 70% | 4.272 | $ 640.80 |
| Tiffany Troy - Pre-Admission Rate | $ 250 | $ 75 | 84.19 | 70% | 25.257 | $ 1,894.28 |
| TOTAL | $38,263.28 |
D. Costs
Under both the FLSA and the NYLL, a prevailing plaintiff may recover his reasonable costs. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). "An award of costs 'normally include[s] those reasonable out-of-pocket expenses incurred by the attorney,'" but "[t]he fee applicant must submit adequate documentation supporting the requested . . . costs." Fisher v. S.D. Protection, Inc., 948 F.3d 593, 600 (2d Cir. 2020) (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)). "Court fees reflected on the Court's docket are sufficiently substantiated, as are costs for which a claimant provides extrinsic proof, such as invoices or receipts." Guo v. Tommy's Sushi, Inc., 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016).
Here, Troy Law seeks $1,844.06 in costs. Troy Decl. ¶ 64. The types of expenses listed by the firm - filing fees, postage, interpreter, printing - are unremarkable. See id. Ex. 1, at ECF p. 20. However, Troy Law has not submitted any invoices, receipts, or other "extrinsic proof" to document the expenditures. Moreover, Troy Law is well aware of the need for such evidence, having been denied expenses in the past on this ground. See, e.g., Shanghai Cafe Deluxe, 2023 WL 2401376, at *17 (declining to award costs to Troy Law, except for the filing fee, due to its failure to "provide[] any documentation to substantiate these costs"); Lin v. Joe Japanese Buffet Rest. Inc., 2022 WL 2718584, at *9 (E.D.N.Y. June 7, 2022) (same), report and recommendation adopted, 2022 WL 2716487 (E.D.N.Y. July 13, 2022); Lu Wan, 2021 WL 1905036, at *9 (awarding costs, even though Troy Law "failed to include any documentation of costs in [its] initial application," because the firm "cured this problem in [its] reply"). Consequently, I recommend that no expense reimbursement award be made in this action except for (i) the $400 fee to file the complaint and (ii) the $200 fee to file attorney Chen's application for admission pro hac vice, which do not require invoices (because they are paid to the Court and reflected on the docket).
III. CONCLUSION
For the reasons set forth above, I respectfully recommend that plaintiffs' fee application be GRANTED and that Troy Law, PLLC be awarded $38,263.28 in fees and $600 in costs, for a total award of $38,863.28.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. John G. Koeltl at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Koeltl. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).