Schiefer, et al. v. Bain Capital, LP (Lawyers Weekly No. 09-036-17)

Civ. No. 2015-3599 BLS 2
on behalf of themselves and all others similarly situated,
On August 21, 2017, Ashley Schiefer, one of four plaintiffs in this putative class action suit alleging failure to pay overtime wages, accepted a Rule 68 Offer of Judgment made by defendant Bain Capital LP (Bain). In addition to an $ 80,000 payment to Schiefer, the Offer of Judgment provided for “reasonable costs and attorney’s fees” together with interest “as awarded by the Court.” Schiefer now asks that this Court award her attorney’s fees and costs in the amount of $ 125,488.13. 1 The defendant asks that I reduce the award to $ 26,225.50. After careful review of the materials submitted in support of the application, this Court allows fees and costs in the amount requested by plaintiff.
The Amended Complaint asserts both common law claims and statutory ones. Bain first argues that it should not have to pay any attorney’s fees since, after the Offer of Judgment was extended, Schiefer took the position that she was waiving her statutory claim because of a
1 The application originally requested $ 122,788.13. Counsel filed a $ 2,700 supplement to that request for work performed in connection with the hearing on the application.
statute of limitations problem, proceeding instead on a common law theory of breach of contract. Certainly, had Schiefer prevailed on her common law claim after trial, she would not have been entitled to recover her litigation expenses. But the Offer expressly included an award of fees, and attached no conditions to that except that the fees be reasonable. In a supplemental pleading filed after the hearing on this Motion, Bain appears to suggest that it was misled about the basis of Schiefer’s claims. But Bain had to have known about the statute of limitations problem. Moreover, Schiefer’s answers to interrogatories about the damages she was seeking describe damages that are of the type that would be recoverable on a common law claim, not on the statutory claim. In short, there was no unfair surprise.
This Court also is not persuaded that counsel had some obligation to segregate out what work was spent on Schiefer’s common law claim and what work was attributable to her statutory claim. As plaintiff spells out in her Reply Memorandum, Scheifer’s breach of contract claim was based on the same core of facts as her statutory claim and indeed required that she prove she was “eligible” for overtime – an inquiry that implicated G.L.c. 151 §1A. These two sets of claims are sufficiently connected to excuse counsel from the near impossible task of segregating his hours based on the type of claim asserted. Indeed, had there been no Offer of Judgment and had Schiefer prevailed both on her common law and statutory claims after trial (thus entitling her to request attorney’s fees on the statutory claim), this Court would not have required counsel to allocate his time among the different claims, given the substantial overlap among them. See Killeen v. Westban Hotel Venture, LP, 69 Mass.App.Ct. 784, 792 (2007), citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). There is no reason to proceed any differently where the award is pursuant to the terms of an Offer of Judgment.
Bain argues more generally that plaintiff’s counsel’s approach in taking the total amount of fees attributable to all four plaintiffs and then allocating one-quarter of that amount to Schiefer is fundamentally flawed. This Court disagrees. From its inception, this case has been prosecuted as a class action, with plaintiff’s counsel representing all four plaintiffs, including Schiefer, collectively in pursuit of a class wide remedy. Counsel’s approach in calculating fees is consistent with the fact that this a collective action. Moreover, the named plaintiffs necessarily had to have substantially similar claims in order for there to be a chance at class certification. Such similarity in claims among these named plaintiffs did in fact exist, with each of them complaining about a failure to pay overtime wages. Discovery and legal research conducted on behalf of any one of them assists the others. Thus, although Schiefer did not join the case as a plaintiff until after the lawsuit commenced, work performed on behalf of the other three plaintiffs benefitted her as well. Bain contends that at least the work related to class certification issues should be excluded from any award since the Offer of Judgment was made before any motion was filed or class certified. It was clearly work that was necessary to the case, however, with Schiefer as a named plaintiff being one of the representatives for the putative class. Counsel is no less entitled to be compensated for that work simply because Bain made the Offer of Judgment before the class certification issue could be decided.
Bain makes more specific objections to certain parts of the fee request, arguing that plaintiff’s counsel spent excessive number of hours on certain matters. Plaintiff’s counsel responds that the large number of hours required for certain tasks was in part due to the way that Bain conducted the litigation. For example, Bain has been slow to comply with plaintiffs’ discovery requests, requiring multiple Rule 9C conferences and the service of a Motion to Compel. Indeed, it only recently began its first round of document production even though the
case was filed in 2015. During this same time period, Bain served 250 document requests and 75 interrogatories on plaintiffs; responding to these requests took time. Bain served subpoenas on plaintiff’s McPherson’s post-Bain employers, necessitating a motion to quash and a motion for protective order from plaintiffs. Success on those motions was important to all named plaintiffs including Scheifer. Even this fee application has been vigorously opposed, with Bain supplementing its opposition after the hearing. Certainly, Bain is entitled to be zealously represented, but then such representation requires more of plaintiffs’ counsel, who must be prepared to respond just as vigorously.
This Court reviews an application for an award of attorney’s fees by using the “lodestar” approach, which requires calculating the number of hours reasonably expended to litigate the claims and multiplying that number by an hourly rate that is reasonable under the circumstances. Fontaine v. Ebtec Corp., 4156 Mass. 309, 325-326 (1993). The Fee Application here contemplates an hourly rate of $ 450; both plaintiff’s counsel are experienced and based on what this Court has seen, have done a commendable job on this matter. The records presented in support of the Application are quite complete and include detailed descriptions of the work performed. Ultimately, the question of what amount of fees is reasonable is addressed to the sound discretion of this Court. In the exercise of that discretion, the Application for Attorney’s Fees is APPROVED in the amount of $ 125,488.13.
Janet L. Sanders
Justice of the Superior Court
Dated; October 24, 2017

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