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Hui L. Chen, Guo Z. Wu, Tak S. Cheng, Bi v. Tyt East Corp.

May 8, 2013

HUI L. CHEN, GUO Z. WU, TAK S. CHENG, BI
X. YANG, MEI F. HE, ZIU Y. GUO, JIAN Z. LUO, HUI LIN, LONG FANG, ZIAO H. ZHENG ZHONG LI, JUN ZHANG, MING HO, XIU H.
JIANG, XIAO Z. ZHANG, SKY WONG, WU C.
CAO, SHOU F. LAM, OY K. KWAN, ZHEN Z. WU, SHAO J. NG, AND YAN X. LIN, PLAINTIFFS,
v.
TYT EAST CORP., JIN HUA RESTAURANT, INC., AND MICHAEL LAM DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

ELECTRONICALLY FILED DOC #: _________________

OPINION & ORDER

Plaintiffs, former waiters, waitresses, bussers, and dim sum sellers at Jin Hua Restaurant, Inc. ("Jin Hua") brought this action pursuant to the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"), alleging that Defendants failed to pay them minimum and overtime wages. The Court granted Plaintiffs' motion for summary judgment and denied Defendants' cross-motion for summary judgment on March 21, 2012 The parties settled their dispute regarding the damages owed to Plaintiffs, agreeing to an aggregate amount of $157,825.88, excluding attorneys' fees and costs, on September 21, 2012, and judgment was entered on December 13, 2012. On December 12, 2012, Plaintiffs moved for an award of attorneys' fees and costs, seeking a total of $452,570.00 in fees and $34,651.10 in costs. After minor modification, the Court grants Plaintiffs' motion.

BACKGROUND

For the five month period from July 21, 2010, through December 22. 2010, Plaintiffs were represented solely by Kenneth Kimerling ("Kimerling"), Legal Director of the Asian American Legal Defense and Education Fund ("AALDEF"). During this period, Kimerling met with Plaintiffs, drafted and filed the complaint, appeared in court, and made initial discovery requests and disclosures. (Kimerling Decl. ¶ 4.) On December 23, 2010, Kimerling enlisted the services of lawyers from the law firm of Davis Polk and Wardwell LLP ("Davis Polk"). (Rowland Decl. ¶ 5.) The Davis Polk team consisted of two partners, Guy Miller Struve ("Struve") and Frances E. Bivens ("Bivens"); one counsel, Lawrence E. Jacobs ("Jacobs"); five associates, Matthew B. Rowland ("Rowland"), Bernard Chen Zhu ("Zhu"), Joshua T. Foust ("Foust"), Benedict J. Schweigert ("Schweigert") and Alan J. Tabak ("Tabak"); and two summer associates, Mekdes Fanta ("Fanta") and Jun Xiang ("Xiang"). (Id. at ¶ 8.) From December 23, 2010 onward, Kimerling supervised the attorneys from Davis Polk (Kimerling Decl. ¶ 4), who conducted fact discovery, performed legal research, drafted and filed numerous documents with the Court, and prepared for a trial on the issue of damages. (Rowland Decl. ¶ 7.)

Plaintiffs request payment for 101.55 hours of work performed by Kimerling (Kimerling Decl. Ex. 1), at a rate of $400 per hour (id. at ¶ 7), and 1,547.8 hours of work performed by Davis Polk*fn1 at rates*fn2 ranging from $450 for partners to $175 for summer associates (Rowland Decl. Ex. 1), as shown below. In addition, AALDEF seeks costs in the amount of $470 (Kimerling Decl. ¶ 11), and Davis Polk seeks $34,181.10. (Rowland Decl. Ex. 3.)

Attorney Experience, Hours Billed Requested Billing Rate Requested Fee as of 2010 Kimerling 41 years 101.55 $400 $40,620.00 Struve 44 years 0.8 $450 $360.00 Bivens 18 years 11.2 $450 $5,040.00 Jacobs 25 years 1.8 $350 $630.00 Rowland 5 years 481.5 $275 $132,412.50 Zhu 3 years 2.5 $275 $687.50 Foust 2 years 364.6 $275 $100,265.00 Schweigert 1 year 303 $275 $83,325.00 Tabak 0 years 223.1 $275 $61,352.50 Fanta 0 years 104.7 $175 $18,322.50 Xiang 0 years 54.6 $175 $9,555.00

Total: 1,649.35 $452,570.00

DISCUSSION

Both the FLSA and NYLL allow for the prevailing party in wage and hour cases to recover costs and "reasonable" attorneys' fees. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). "[T]he attorneys' fees need not be proportional to the damages plaintiffs recover, because the award of attorneys' fees in such cases encourages the vindication of Congresionally identified policies and rights." Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509, 511 (S.D.N.Y. 2011) (collecting cases). The "presumptively reasonable fee award" is calculated by "determining the reasonable hourly rate for each attorney and the reasonable number of hours expended, and multiplying the two figures together." Porzig v. Dresdner, Kleinwort, Benson N. Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007).

Courts must also consider other factors: "(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 relationship with the client; . . . (12) awards in similar cases;" and that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany & Albany County Bd. of Elections, 522 F.3d 182, 186 n.3, 190 (2d Cir. 2008).

Defendants concede that the requested rates for Kimerling, Jacobs, and Rowland are reasonable, but object to the rates requested for Struve, Bivens, Zhu, Foust, Schweigert, Tabak, Fanta and Xiang. Further, they object to the number of hours billed to this matter as "excessive, redundant and unreasonable" (Def. ...


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