If you think one of the benefits of a plaintiff’s practice is that you don’t have to keep timely and accurate time records, you are badly mistaken if you prosecute class actions. Class action settlements must be presented to a court for approval. Pursuant to recent Court of Appeal decisions in Kullar v Foot Locker Retail, Inc. 168 Cal. App. 4th 116 (2008) and Clark v American Residential Services LLC 175 Cal. App. 4th 785 (2009), courts are increasingly scrutinizing settlements, including accompanying applications for attorneys’ fees and costs. (Despite any agreement by the parties to the contrary, the court has an “independent duty to evaluate the requested amount [in a class settlement agreement] and award only what is reasonable.” Garabedian v. Los Angeles Cellular Telephone Company 118 Cal.App.4th 123, 128. (2004)) If your fee application seeks a percentage of a common fund created for the settlement, courts will often require that the percentage requested be cross-checked with class counsel’s lodestar (hours billed x reasonable hourly rate). If the lodestar is less than the percentage fee requested, the court will determine what, if any, multiplier to award to arrive at an approved fee. See, PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095-96 (2000); Ramos v. Countrywide Home Loans, Inc. 82 Cal. App. 4th 615, 625-26 (2000); Ketchum III v. Moses 24 Cal.4th 1122, 1132-36 (2000).
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On March 25, 2010, in a long awaited decision, the Ninth Circuit held that the time spent putting on and taking off required uniforms and gear does not constitute compensable work for police officers. In Bamonte v. City of Mesa (9th Cir. 08-16206) the claimants, police officers employed by the city of Mesa, Arizona, brought a suit contending that the City violated the Fair Labor Standards Act (FLSA) by failing to compensate police officers for time spent putting on and taking off their uniforms and gear at the beginning and end of their shift, a process known as donning and doffing. The police officers argued that strong relationship between their uniform and gear and the performance of their duties makes the time they spend putting the uniforms on and off compensable. They further argued that, although they have the option of donning and doffing their uniform and gear at home, for many reasons it is preferable for police officers to do so at work.
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For decades, wage and hour attorneys have relied on DOL Opinion Letters as a means for interpreting and applying the FLSA. In the past, requests for opinion letters could be submitted and would receive responses that analyzed the particular facts of any given situation. This practice is now a thing of the past, and wage and hour attorneys can no longer rely on these opinion letters to the degree they once did for the specific situations arising in their cases.
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