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Yan v. 520 Asian Restaurant Corp.

United States District Court, S.D. New York

March 9, 2015

WEI YAN YAN, Plaintiff,
v.
520 ASIAN RESTAURANT CORP. d/b/a CHEF YU, and TEO SU JIN, Defendants.

MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX, Magistrate Judge.

Following a bench trial, in this action based on violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 ("ELSA"), and New York Labor Law ("NYLL"), the plaintiff obtained a judgment against the defendants. Before the Court is the plaintiff's motion for an award of attorneys' fees and costs. The defendants oppose the motion.

Plaintiffs Contentions

The plaintiff seeks $99, 025, in attorneys' fees and $6, 490.25, in costs. He contends that any duplicative or administrative items have been removed from the billing records. According to the plaintiff, he prevailed against the defendants and received a judgment slightly more favorable than he would have received under the September 2013 settlement proposal. The plaintiff contends he acted in good faith when he did not agree to a strict confidentiality clause and a general release of all claims in the proposed settlement, and the failed settlement discussions should not preclude recovery of his attorneys' fees. According to the plaintiff, his fee application includes compensation for the hours spent preparing the fee application.

In support of his motion, the plaintiff submitted an affirmation by his attorney, D. Maimon Kirschenbaum ("Kirschenbaum"), a partner at Joseph & Kirschenbaum LLP ("JK"), with: (a) Exhibit A, a copy of the time records kept by the firm in connection with this action; (b) Exhibit B, a copy of the expense report kept by the firm in connection with this action; and (c) Exhibit C, a proposed order. Kirschenbaum is the managing partner at JK, which handles, almost exclusively, employee rights matters and he specializes in wage and hour litigation. Since graduating from Fordham University School of Law in 2005, Kirschenbaum's practice has focused on representing food-service workers respecting employment-related claims against the hospitality industry.

Kirschenbaum contends that "Mr. Kadushin" ("Kadushin") graduated from New York University School of Law in 2000. Kadushin worked as a public defender for approximately 9 years before joining JK, in October 2009. The majority of Kadushin's "current docket involves wage and hour lawsuits against the hospitality industry."

Douglas Weiner ("Weiner") graduated from Villanova Law School. Prior to joining JK, Weiner worked for 30 years as a senior trial attorney at the United States Department of Labor, prosecuting wage and hour violations. Weiner also worked for the Epstein Becker law firm from 2008 to 2013, representing employers.

Denise Schulman ("Schulman") graduated from New York University School of Law in 2008, and joined JK in January 2009. Since joining JK, Schulman has practiced exclusively in the area of wage and hour discrimination cases.

Leah Berenholz Seliger ("Seliger") graduated from Georgetown University Law Center in 2002. According to Kirschenbaum, "[Nefore becoming self-employed, " Seliger worked at the City of New York Office of Labor Relations from 2011 to 2012, as well as various law firms.

Kirschenbaum asserts that over the last several years, JK has filed dozens of class and collective actions on behalf of food-service industry employees, and some of JK's cases "have changed the landscape of wage and hour class and collective litigation, such as Shahriar v. Smith & Wollensky Rest. Group, Inc., 659 F.3d 234 (2d Cir. 2011), in which the court held that in FLSA actions pursued on a collective basis under 29 U.S.C. § 216(b), courts may exercise supplemental jurisdiction over state-law claims pursued on a class basis under Fed.R.Civ.P. 23, and Spicer v. Pier Sixty LLC, 269 F.R.D. 321 (S.D.N.Y. 2010), in which the federal court applied retroactively the state court's law that mandatory charges include gratuities. Moreover, Kirschenbaum contends, JK has increased awareness of wage and hour laws in New York City's restaurant industry, and its work has attracted significant media attention.

In his affirmation, Kirschenbaum provides "a chart representing each attorney's hours and the hourly request":

Individual Rate Total Hours Total D. Maimon Kirschenbaum $375 87.7 $32, 887.50 Douglas Weiner $350 159.5 $55, 825.00 Matthew Kadushin $325 12.9 $ 4, 192.50 Leah Seliger $300 10 $ 3, 000.00 Denise Schulman $300 2.8 $ 840.00 Paralegals $100 22.8 $ 2, 280.00 TOTAL: $99, 025.00

Kirschenbaum maintains that JK undertook to prosecute this action on a contingent basis in the face of substantial risk. The plaintiff seeks $6, 490.25, in costs.

Defendants' Contentions

The defendants contend that the hours and rates billed are excessive, and the "plaintiff s attorneys' weighted average billing rate is too high due to the overstaffing of a simple case." With respect to the billing rates, the defendants contend that the "weighted average" hourly rate is $334.88, but "$200 would be far more reasonable." They assert that, "[d]uring the period from intake to September 12, 2013, " Kirschenbaum billed 0.7 hours, Schulman 0.3 hours and paralegals 0.8 hours, which makes sense because, had the plaintiff not "backed out of the settlement he had agreed to, the attorneys would have received $26, 483 for their efforts, a nearly six-fold return on their investment of time."

Concerning the hours worked, the defendants assert that they should be reduced because the plaintiff "was acting in bad faith when he backed out of the settlement he had agreed to in August 2013, intending to obtain a larger recovery with false testimony." The defendants contend that, if the general release terms of the proposed settlement offer of $52, 967 were against public policy, as the plaintiff now claims, he "could simply have ignored them." Rather, the defendants assert, the plaintiff's primary concern was money in general and attorneys' fees in particular, because, had the settlement agreement been signed, the attorneys'"fees would have been no more than $4, 182.50, the firm's total billings through September 12." The defendants contend that it is "no exaggeration to say that the contingent-fee retainer agreement, which plaintiff has not produced, may have been the cause of plaintiff's backing out of the settlement." The defendants maintain that "it is difficult to identify wasted hours where all of an attorney's tasks in a day are lumped together." However, "a few things stand out, " such as: (1) "[s]omething in excess of 2 hours is charged for a motion for reconsideration that was never filed"; and (2) "[a]t least 19.9 hours are charged for a motion in limine to preclude certain evidence mentioned by defendants in the Joint Pretrial Order - not for studying our answer or preparing a reply, just the original motion - as to which plaintiffs attorney never conferred with defense counsel in an attempt to resolve the issue." Moreover, "[i]t is hard to see why Mr. Weiner billed 5.1 hours in connection with the final pretrial conference, while Mr. Kirschenbaum ...


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