Wilder v. The Kroger Co

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRANDON WILDER, et al., individually
and on behalf of all others similarly situated,
Plaintiffs,
v.
THE KROGER CO.,
Defendant.
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Case No. 1:22-cv-681, consolidated with
Case Nos. 1:23-cv-287, 1:24-cv-521
Judge Jeffery P. Hopkins
ORDER
Before the Court is Plaintiffs’ Motion for Approval of Class Action Settlement (Doc.
145) (“Settlement Motion”) and Motion for Attorneys’ Fees and Costs (Doc. 146) (“Fee
Motion”). In these consolidated cases,1 named Plaintiffs (collectively, “Plaintiffs”) bring this
lawsuit on behalf of themselves, and other similarly situated employees, against Defendant
The Kroger Co. (“Defendant” or “Kroger”). Plaintiffs are employees of Kroger who work at
grocery stores in states that implemented a new payroll system called MyTime or MyInfo
(collectively, “MyTime”). Plaintiffs claim that Kroger using the new software program,
MyTime did not compensate them properly in violation of the federal Fair Labor Standards
Act of 1938 (“FLSA”) and a variety of related state laws that deal with wage and hour
standards. Plaintiffs seek certification for settlement of their proposed class, approval of their
settlement with Defendant, and approval of the fee award they negotiated with Defendant as
1 	At the request of the parties, the following actions were consolidated for settlement purposes: Brandon Wilder
v. The Kroger Co., No. 1:22-cv-681, Donald Austin, et al. v. Kroger Limited Partnership I Mid Atlantic Marketing
Area, No. 1:23-cv-287, and Kacey Ebersole v. Dillon Companies, LLC, 1:24-cv-521. See Doc. 135. Unless
otherwise noted, record citations refer to filings in Brandon Wilder v. The Kroger Co., No. 1:22-cv-681.
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part of the settlement—$4,878,376.85, which they represent is 23% of the total value of the
settlement to Class Members. These motions are unopposed.
After holding a fairness hearing, reviewing all of the pleadings, and being fully advised
in the premises, the Court finds that the Motion for Approval of Class Action Settlement
(Doc. 145) is GRANTED, and the Motion for Attorneys’ Fees and Costs (Doc. 146) is
GRANTED IN PART. Attorneys’ fees will be awarded as stated herein.
I. 	BACKGROUND
Kroger is a very large company based in Cincinnati, Ohio that sells groceries and a
variety of other consumer products in stores across the United States with thousands if not
tens of thousands of employees. So when small problems arise in the payroll systems used to
compensate Kroger’s employees, those small problems can become larger, have widespread
effect, and far-reaching impact on innumerable employees across multiple states. That is
exactly what occurred here. In September 2022, Kroger moved to a new timekeeping and
payroll system called MyTime. Doc. 139, PageID 933. Shortly after the transition to MyTime,
there was a glitch in the software, which resulted in a significant number of employees being
underpaid (and some overpaid). See id. This class action lawsuit was brought by the employees
who were underpaid. At the outset of litigation, some of the effected employees sought
repayment of the amounts they had been underpaid, and damages on top of that—to
compensate for the hardship they had suffered from not receiving the proper wages when due.
After litigation began, two things took place that make this case different from the
typical class action—if there is such a thing. First, Kroger hired accounting firm and
consultancy, Deloitte, to identify any underpaid employees. Id. at PageID 933 n.5. That is to
say, Kroger undertook a large and presumably expensive effort to identify the damages to
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Class Members caused by its alleged wrongdoing. Second, it paid the employees affected by
the payroll glitch the amounts they were owed that Deloitte identified in its review. In total,
Kroger paid out $10,547,841.84 to effected employees as part of this initial process. See Doc.
143, ¶ 33. This amount was paid prior to any settlement agreement being reached between
the parties, or any other formal agreement being crafted. See Doc. 149, PageID 1417–20.
While Kroger was under no contractual obligation to make these payments, class counsel
represents that it “could have stopped Kroger from making the payments to Class Members,”
id. at PageID 1419, and that Kroger never would have made the payments if not for this
lawsuit.
The parties eventually arrived at the settlement currently before the Court. Under the
proposed settlement agreement (“Settlement Agreement”), Kroger will pay two sub-classes.
Members of one sub-class will be paid approximately 62% of the amount they were previously
underpaid, and members of the other sub-class will be paid 42% of the amount they were
previously underpaid, for a total of approximately $5,250,000.00 paid to Class Members.
Doc. 143, ¶¶ 33, 49(c).2 (This is in addition to the amounts Kroger previously paid Class
Members to ensure they received the amounts they were already owed). Further, as part of
the settlement, Kroger agreed to pay $4,878,376.85 in fees and costs to class counsel. Id. In
total, Kroger has agreed to pay $10,152,297.77 as a result of the Settlement Agreement under
consideration here, plus the cost of claims administration.3 This amount is referred to in the
Settlement Agreement as the Funds Available for Settlement. Id. ¶ 21.
2 	Excluding Class Members whose notices were undeliverable and those who opted out, and adding those who
opted in, there are 46,394 Class Members who will receive a payment under the settlement. See Doc. 145-1,
¶¶ 10–15. Based on that number, each Class Member will receive, on average, $113.68.
3 	Kroger has also agreed to pay the cost of claims administration. Doc. 143, ¶ 21.
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Plaintiffs now present that settlement to the Court for approval (Doc. 145) and
separately request an award of attorneys’ fees (Doc. 146). On June 24, 2025, the Court held a
fairness hearing regarding this settlement. Following that hearing, Plaintiffs submitted
supplemental briefing in support of their request for attorneys’ fees. Doc. 149.
II. 	LEGAL STANDARD
It is axiomatic that “[t]he benefits of a settlement can be realized only through the final
certification of a settlement class.” Kimber Baldwin Designs, LLC v. Silv Comms., Inc., No. 1:16-
cv-448, 2017 WL 5247538, at *2 (S.D. Ohio Nov. 13, 2017). To be certified, a proposed
settlement class must meet the requirements set out in Rule 23(a)—numerosity, commonality,
typicality, and adequate representation—and fit into one of the categories set out in Rule
23(b). Fed. R. Civ. P. 23. The Court “maintains broad discretion in deciding whether to certify
a class.” Kimber Baldwin, 2017 WL 5247538, at *2.
Additionally, under Federal Rule of Civil Procedure 23, the class action settlement
itself requires court approval. The Court may approve the settlement only after a hearing, and
only if the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In
determining whether these requirements are met, the Court is guided by the seven factors set
out in Int’l Union, UAW, et al. v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007) (the UAW
factors): “(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of
the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of
success on the merits; (5) the opinions of class counsel and class representatives; (6) the
reaction of absent class members; and (7) the public interest.”
As to awarding fees and costs, the Court “may award reasonable attorney’s fees and
nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P.
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23(h). In assessing whether a fee request is reasonable, the Court is guided by the factors set
out in Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974): “1) the value of
the benefit rendered to the [plaintiffs], 2) society’s stake in rewarding attorneys who produce
such benefits in order to maintain an incentive to others, 3) whether the services were
undertaken on a contingent fee basis, 4) the value of the services on an hourly basis, 5) the
complexity of the litigation, and 6) the professional skill and standing of counsel involved on
both sides.” See In re Flint Water Cases, 63 F.4th 486, 495–96 (6th Cir. 2023) (explaining that
courts rely on the Ramey factors in evaluating the reasonableness of requests for attorney’s
fees).
The Court may assess the reasonableness of the requested fee award using the
percentage method or the lodestar method, or some combination of both. When using the
percentage method, the Court evaluates whether the proposed fee is a reasonable percentage
of the common fund. When using the lodestar method, the Court evaluates whether the fee
award is reasonable in light of the hours that class counsel spent on the case and a reasonable
rate for their services. See Rawlings v. Prudential-Bache Prop., Inc., 9 F.3d 513, 516 (6th Cir.
1993). In the Southern District of Ohio, the preferred method for awarding attorney’s fees is
“to award a reasonable percentage of the fund, with reference to the lodestar and the resulting
multiplier.” Kimber Baldwin, 2017 WL 5247538, at *5 (citation omitted).
The Court has an independent obligation to make sure the requirements of Rule 23
are satisfied, even when no class member objects to a proposed settlement. See In re Cinfed Fed.
Credit Union Data Breach Litig., No. 1:23-cv-776, 2025 WL 1637686, at *10 (S.D. Ohio June
10, 2025).
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III. 	ANALYSIS
A. The settlement class is appropriate for Rule 23 certification.
Plaintiffs seek to certify for purposes of settlement a class consisting of two sub-classes.
The first sub-class, Class A, is defined as follows:
Class A: individuals employed by Kroger as non-exempt employees from
September 1, 2022 to May 31, 2023 in Arizona, California, Colorado, Illinois,
Maine, Maryland, Massachusetts, New Jersey, and Virginia who experienced
an instance of underpayment within a given pay period for the hours they
worked (or that they took as PTO) in that pay period . . . or experienced an
over-deduction from their wages relating to benefits . . . as identified [by
Deloitte].
Doc. 143, ¶ 5. The second sub-class, Class B, is defined as:
Class B: all individuals employed by Kroger as non-exempt employees from
September 1, 2022 to May 31, 2023, in every other state where Kroger does
business, excluding Oregon and Washington, who experienced an instance of
underpayment within a given pay period for the hours they worked (or that
they took as PTO) in that pay period . . . or experienced an over-deduction from
their wages relating to benefits . . . as identified [by Deloitte].
Id.
The class, comprised of sub-classes Class A and Class B, satisfies the Rule 23(a)
requirements. As noted, a proposed settlement class must meet all four of the Rule 23(a)
requirements to be certified, the first of which is numerosity. Kimber Baldwin, 2017 WL
5247538, at *2.
i. 	Rule 23(a)
1. 	Numerosity
Numerosity under Rule 23(a)(1) requires that the class be sufficiently numerous such
that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). The proposed class
easily satisfies this requirement. Sub-class A contains 18,964 members, while sub-class B has
28,049 members. Doc. 139, PageID 947. The total class size surpasses by a wide margin the
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size of classes previously approved in this district. See Swigart v. Fifth Third Bank, 288 F.R.D.
177, 183 (S.D. Ohio 2012) (class size of 350 individual plaintiffs “far surpasse[d] the size of
classes this Court has found to surpass the numerosity requirement”).
2. 	Commonality
The Court turns next to the second requirement under Rule 23—commonality. Rule
23(a)(2) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “To
satisfy commonality, Plaintiffs’ ‘claims must depend on a common contention . . . of such a
nature that it is capable of classwide resolution.’” Hicks v. State Farm Fire & Cas. Co., 965 F.3d
452, 458 (6th Cir. 2020). The class satisfies the commonality requirement. Resolution of this
litigation turns on the common question of whether Class Members are entitled to damages
for underpayment of wages during the relevant time period. To the extent differences in state
wage-and-hour laws pose a problem for commonality—because employees may be entitled
to different damages depending on their state’s laws regarding underpayment—this has been
resolved by creating two sub-classes, grouping together Plaintiffs whose states have similar
wage-and-hour laws. Importantly, “[i]ndividual class members need not be identically
situated to meet the commonality requirement.” Swigart, 288 F.R.D. at 183 (citation, internal
quotation marks, and alteration omitted).
3. 	Typicality
The third Rule 23(a) requirement, typicality, is found in Rule 23(a)(3). “The premise
of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go
the claims of the class.” Sprague v. GMC, 133 F.3d 388, 399 (6th Cir. 1998). This premise is
easily satisfied here because the Named Plaintiffs suffered the same injury as Class Members;
they were deprived of correct compensation by the glitch in Kroger’s payment system.
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Plaintiffs Austin, Ebersole, and Wood satisfy typicality as to sub-class A, as they worked for
Kroger in Virgina, Colorado, and California, respectively, and were underpaid because of the
glitch. See Doc. 139, PageID 932. Plaintiff Wilder satisfies typicality as to sub-class B, as he
worked for Kroger in Kentucky and was underpaid because of the glitch. See id.
4. 	Adequacy
The adequacy requirement, discovered in Rule 23(a)(4) “calls for a two-pronged
inquiry: ‘(1) the representatives must have common interests with unnamed members of the
class, and (2) it must appear that the representatives will vigorously prosecute the interests of
the class through qualified counsel.” Swigart, 288 F.R.D. at 185–86 (quoting Senter v. General
Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)). The first portion of the requirement is
satisfied for the reasons stated above. Plaintiffs Austin, Ebersole, Wood, Wilder and other
unnamed Class Members all share a common interest in that they all seek recovery of money
damages for their underpayment by Kroger. The second requirement is satisfied because the
class representatives retained experienced counsel. See Doc. 139-3, Exs. 3, 4. Counsel at the
law firms Austin Alexander, PLLC, and Barkan Meizlish DeRose Cox, LLP all have
significant experience in labor and employment matters. Id.
ii. 	Rule 23(b)
Even if all four Rule 23(a) requirements are satisfied, an action can be maintained as
a class action only if it meets one of the three conditions for class certification set out in Rule
23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Plaintiffs assert that class
certification is appropriate under Rule 23(b)(3), which provides that a matter can proceed as
a class action where the Court “finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
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action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3).
1. 	Predominance
Plaintiffs assert that common issues predominate over differences because all Class
Members were non-exempt hourly Kroger employees underpaid because of the glitch. Doc.
139, PageID 950. The Court agrees. See Senne v. Kansas City Royals Baseball Corp., 934 F.3d
918, 938 (9th Cir. 2019) (“Predominance in employment cases is rarely defeated on the
grounds of differences among employees so long as liability arises from a common practice
or policy of an employer.”) (alteration and citation omitted).
2. 	Superiority
As to superiority, Plaintiffs contend that a class action is superior to other available
methods of resolving the dispute presently before the Court. In support, they note that no
lawsuits have been filed by members of the proposed class apart from the lawsuits presently
before the Court, so “no class members have expressed any interest in individual litigation.”
Doc. 139, PageID 951. The Court agrees that a class action is superior to other available
methods for resolving the instant dispute. Individual proceedings would be impractical and
unwise here because the glitch in Kroger’s payment system caused harm of the same type to
thousands of Kroger employees. Further, as Plaintiffs note, where a settlement has been
reached, it is evident that the class action will not be difficult to manage, which is one of the
factors relevant to the superiority analysis. See Fed. R. Civ. P. 23(b)(3)(D); Amchem Prods.,
Inc., 521 U.S. at 620 (“Confronted with a request for settlement-only class certification, a
district 	court 	need 	not 	inquire 	whether 	the 	case, 	if 	tried, 	would 	present 	intractable
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management problems . . . for the proposal is that there be no trial.”). Here, not one but all
three conditions for class certification set out in Rule 23(b)(3) have been satisfied.
For the foregoing reasons, Plaintiffs’ request for final certification of the settlement
class (Doc. 145) is GRANTED.
B. The settlement is fair, reasonable, and adequate.
The Court turns next to the fairness of the agreed settlement, analyzing the settlement
terms in light of the UAW factors identified above. See Kimber Baldwin, 2017 WL 5247538, at
*4. Each of these factors weigh in favor of approval.
i. 	Risk of fraud or collusion
There is no evidence that this settlement was the product of fraud or collusion. Kroger
was represented by experienced counsel at Vorys, Sater, Seymore and Pease LLP, and the
settlement was reached with the assistance of a well-known labor law mediator, Michael
Russell. Additionally, the settlement terms were reached with the benefit of input from
national audit firm Deloitte, which scrutinized and identified the amounts by which each class
Plaintiff was underpaid. Accordingly, the settlement terms were negotiated by experienced
counsel, with the benefit of detailed, verifiable information regarding the harm suffered by
each Class Member. There is little risk of fraud or collusion.
ii. 	Complexity, expense, and likely duration of litigation
The complexity and likely expense of ongoing litigation, should the settlement be
rejected, also weighs in favor of its acceptance. Even though the damages sustained by class
Plaintiffs are relatively straightforward, trying this matter to a jury would be time-consuming
and expensive. This settlement, by contrast, “confers a tangible and immediate benefit upon
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. . . Class Members.” Kimber Baldwin, 2017 WL 5247538, at *4. The complexity and expense
of litigation counsels in favor of accepting this settlement.
iii. 	Amount of discovery engaged in by the parties
The discovery engaged in by the parties’ counsels strongly in favor of acceptance of
this settlement. Aided by the Deloitte audit, the parties have already determined the amount
by which each Class Member was underpaid. Class counsel then had the opportunity to
review the Deloitte audit and ask questions about it. See Doc. 145, PageID 1294. The record
here “clearly demonstrates that both sides . . . have been afforded an adequate opportunity to
conduct a sufficient discovery to be fully apprised about the legal and factual issues presented
as well as the strengths and weaknesses of their cases.” In re Broadwing, Inc. ERISA Litig., 252
F.R.D. 369, 374–75 (S.D. Ohio 2006). This factor weighs in favor of approving the Settlement
Agreement.
iv. 	Likelihood of success on the merits
Plaintiffs’ likelihood of success on the merits “provides a gauge from which the benefits
of the settlement must be measured.” In re Wasserstrom Holdings, Inc. Data Breach Litig., No.
2:23-cv-2070, 2025 WL 1563548, *7 (S.D. Ohio Apr. 11, 2025).
Here, while the amount of Kroger’s underpayment to each employee is known, the
damages that the class could obtain are uncertain, particularly because state wage-and-hour
laws vary in the relief they offer for employees who were underpaid. Under the terms of the
settlement, members of sub-class A will receive approximately 62% of their unpaid wages as
damages, and members of sub-class B will receive approximately 42%. Doc. 145, PageID
1296.
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Plaintiffs brought claims under the FLSA and state labor laws. The recovery Plaintiffs
could obtain at trial depends on the damages available under those statutes. Accordingly, the
Court will analyze that available recovery as a metric against which to measure the benefit to
Plaintiffs of the settlement.
As to FLSA, liquidated damages are the default. Albert v. Honda Dev. & Mfg. of Am.,
LLC, 792 F. Supp. 3d 855, 866 (S.D. Ohio 2025). The statute provides for liquidated damages
in the amount of the underpayment (i.e., 100% of the underpayment), see 29 U.S.C. § 216(b),
but a court may, in its discretion, limit or deny those damages. Id.
The Court proceeds to sample the recovery available under state wage-and-hour laws,
using the named Plaintiffs’ states as examples. That analysis reveals that recovery available
under state law is similar—typically allowing for the amount of underpayment, and then an
equal amount as liquidated damages—although some states allow for higher recovery.
1. 	Sub-Class A
Sub-class A includes individuals employed by Kroger in its stores in Arizona,
California, Colorado, Illinois, Maine, Maryland, Massachusetts, New Jersey, and Virginia.
Recovery in these states is similar to what is available under FLSA, but in some circumstances
plaintiffs may recover more than the amount of the underpayment.
In Named Plaintiff Kasey Ebersole’s home state of Colorado, for example, an
underpaid employee may be entitled to greater recovery—as much as three times the amount
of the unpaid wages, if certain conditions are met. Colo. Rev. Stat. Ann. § 8-4-109(3)(b) (West
2025). In Named Plaintiff Otis Woods’s home state of California, various types of recovery
are available for wage-and-hour violations, including “liquidated damages in an amount
equal to the wages unlawfully unpaid and interest thereon.” Cal. Lab. Code § 1194.2 (West
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2015). See Troester v. Starbucks Corp., CV 12-07677, 2020 WL 553572, at *3 (C.D. Cal. Jan. 27,
2020). Under the law of Named Plaintiff Donald Austin’s home state of Virginia, an
underpaid employee may recover wages owed, plus an equal amount as liquidated damages,
and prejudgment interest at a rate of eight percent. See Hudson v. Dunn, 1:23-cv-781, 2024 WL
2870845, *7 (E.D. Va. Mar. 15, 2024) (quoting Va. Code Ann. § 40.1-29(G) (West 2022)).
2. 	Sub-Class B
Sub-class B includes individuals employed by Kroger in every other state, except
Oregon and Washington. As a general matter, these states’ wage-and-hour laws are not as
generous to Plaintiffs as sub-class A states, but some of these states do allow recovery of
liquidated damages in the amount of the underpayment. In Named Plaintiff Brandon Wilder’s
home 	state 	of 	Kentucky, 	an 	underpaid 	employee 	may 	recover 	the 	amount 	of 	the
underpayment, plus “an additional equal amount as liquidated damages.” Ky. Rev. Stat.
Ann. § 337.385 (West 2024). But some wage-and-hour statutes of states in this group aren’t
so generous and do not permit that level of recovery. Ohio’s Prompt Pay Act, for example,
only allows for recovery of 6% of the amount of underpayment or $200, whichever is greater.
Ohio Rev. Code Ann. § 4113.15 (West 2019). See Albert, 792 F. Supp. 3d at 866.
Having analyzed the recovery available to Plaintiffs, the Court concludes that the
likelihood of success factor favors approval of the settlement. Here, Plaintiffs will receive
either 62% or 42% of their unpaid wages in additional compensation. Under relevant law,
they could receive higher damages should they prevail at trial, but given the uncertainties of
litigation, they also could receive less. Notably, also, good faith is a defense to liquidated
damages under the FLSA. Id. Here, it is possible that Kroger could successfully assert the
good-faith defense at trial, as there is no allegation that the act that gave rise to the glitch—
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the payroll software conversion—was undertaken with knowledge of a risk that employees
could be underpaid, or an intent to underpay employees. Additionally, Plaintiffs correctly
assert that some of the underpayments identified in the Deloitte audit would not be
recoverable at all under either federal or state wage-and-hour laws. Doc. 149, PageID 1418.
The 	Court 	notes 	briefly 	that 	the 	recovery 	each 	Class 	Member will 	receive—
approximately $113—is small in absolute terms. However, in evaluating likelihood of success
on the merits, the Court must evaluate this recovery not in absolute terms but instead by
comparing it to what Class Members could receive under relevant law. Viewing the settlement
in this light, the Court concludes that the proposed recovery amount equates to a good result
for the class. This factor weighs in favor of approval of the settlement.
v. 	Opinion of class counsel and class representative
Class counsel, experienced wage-and-hour litigators, believe this settlement provides
an “exceptional result” for Class Members. Doc. 145, PageID 1296. See also Doc. 145-2, ¶ 13.
This representation weighs in favor of approving the settlement. See In re Wasserstrom Holdings,
Inc. , 2025 WL 1563548, at *7.
Further, 	class 	representatives 	have 	attested 	that 	they 	believe 	the 	Settlement
Agreement is appropriate by signing it. Accordingly, this factor supports approval of the
settlement.
vi. 	Reaction of absent Class Members
The reaction of absent Class Members also favors approval of the settlement.
According to settlement administrator Rust Consulting, it mailed notice of the settlement to
47,018 Class Members. Doc. 145-1, ¶ 10. A high percentage of the notices were delivered,
with Rust reporting that only 644 were undeliverable. Id. ¶ 11. As of June 9, 2025, only 11
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Class Members had opted out of the settlement, and no Class Member objected to the
settlement. Id. ¶¶ 13–14. This very low percentage of opt-outs—less than 0.1%—favors
approval of the settlement. See Kimber Baldwin, 2017 WL 5247538, at *5. In fact, 31
individuals self-identified as Class Members, and Kroger agreed they should be included.
Doc. 145-1, ¶ 15. So more individuals decided to join the settlement class unprompted than
those that chose to opt out. The reaction of absent Class Members to the settlement was
overwhelmingly positive, which favors approval of the settlement.
vii. 	Public interest
“Public policy generally favors settlement of class action lawsuits.” Hainey v. Parrott,
617 F. Supp. 2d 668, 679 (S.D. Ohio 2007). Settlement of this matter allows Class Members
to recover expeditiously and preserves limited court resources and time as well as the
resources of the parties. Accordingly, public policy favors approval of this settlement.
For the foregoing reasons, Plaintiffs’ Settlement Motion (Doc. 145) is GRANTED.
C. The requested attorneys’ fees are unreasonable and will be reduced.
Plaintiffs’ Fee Motion (Doc. 146) presents more challenging issues, namely: (1) does
class counsel properly include in the common fund money paid by Kroger to Class Members
prior to settlement? And (2) where class counsel represents that attorneys’ fees were
negotiated separately from recovery for Class Members—and thus attorneys’ fees are not
coming out of Class Members’ pockets—is the Court permitted to award lower attorneys’ fees
than those proposed by Plaintiffs? The Court answers the first question in the negative and
the second in the affirmative; the Court will award attorneys’ fees but in a reduced amount
from what was requested.
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Class counsel requests attorneys’ fees and costs of $4,878,376.85.4 They contend that
the Court should calculate attorneys’ fees using the percentage method with a lodestar cross-
check. Doc. 149, PageID 1415. Applying this method, they argue their requested attorneys’
fees are appropriate because those fees represent 23% of the Total Settlement Value (“Total
Settlement Value”), Doc. 146, PageID 1336, and Plaintiffs’ lodestar is $1,707,980.05 resulting
in a lodestar multiplier for the requested fee award of 2.85. Doc. 149, PageID 1425.
As the Court expressed at the June 24, 2025, fairness hearing, class counsel’s
percentage calculation warrants particular attention. They calculate the 23% figure using a
Total Settlement Value of $20,883,610.64, which they represent to be the total amount Kroger
is paying to resolve liability arising from the glitch at issue in this litigation. Doc. 145, PageID
1288. The Court reproduces below a chart provided by class counsel showing how the Total
Settlement Value was calculated:
Id.
4 	Class counsel represents that it incurred litigation costs of $40,756.08. They do not request separate
compensation for costs but instead represent that compensation for costs is part of the $4,878,376.85 they are
requesting as class counsel compensation. Doc. 146, PageID 1345.
Total Amou111: of 	cgatlve 	arianccs and
Over Deductions Paid b , Kroger
Additional Payments to Class Mcmbcc./
Funds A ailable for Settlement
Costs of Claim Adrni.nsttation
nhancement Pa. rment>
California
et Fund s Available for Disbursement
:si o.s4 7.84 t .84
rn,335,768.so
$20,883,610.64
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i. 	Value of the common fund
Class counsel insist that money paid by Kroger to Plaintiffs voluntarily, prior to
settlement of this matter (hereinafter, the “Initial Payments”), should be counted as part of
the settlement amount for purposes of calculating attorneys’ fees. They claim that this “aligns
with long-standing jurisprudence,” and properly incentivizes wage-and-hour litigators to
permit defendants to make their clients whole prior to settlement. Doc. 149, PageID 1419.
Plaintiffs’ attorneys insist that, as a matter of fact, Kroger would never have made the
Initial Payments absent their involvement. In support, the attorneys note that many Class
Members were not paid wages they were owed until class counsel sued Kroger on their behalf.
For example, Carter Hastings, an attorney for Plaintiffs, represents that Named Plaintiff
Brandon Wilder did not receive all compensation he was owed until after class counsel filed
suit on Wilder’s behalf and subsequently followed up by phone with Kroger’s counsel
regarding Wilder’s missing pay. Doc. 150-3, ¶ 12. Class counsel further represent that many
Class Members would never have known they were underpaid without the attorney’s efforts.
Doc. 149, PageID 1418.
The Court is unpersuaded that the Initial Payments Class Members received should
be included in the common fund for purposes of calculating attorneys’ fees. Fundamentally,
the Initial Payments are not part of the “common fund” this “successful class action has . . .
create[ed] . . . to be distributed among members of the class.” Rawlings, 9 F.3d at 515. Class
counsel argues strenuously that the payments “Constitute a Value Received by Class
Members,” Doc. 149, PageID 1419, but that does not make those payments part of the
“common fund” this successful class action created.
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The cases class counsel cites to in support of this amount in the common fund are
inapposite. One such case, Chieftain Royalty Co. v. Marathon Oil Co., No. CIV-17-334, 2019
WL 7758915 (E.D. Okla. Mar. 8, 2019), did not involve a defendant who voluntarily made
payments to class members prior to settlement. Instead, the Chieftain Royalty court dealt with
a cash fund as well as alterations that were made to the class defendant corporation’s policies,
which policy changes were afforded a monetary value by the court. The court in that case
held that attorneys’ fees should be calculated using not only the cash fund, but also the
monetary value attributable to the corporate policy changes that were made. Id. at *4. That
case concerned “the value of any future relief under the settlement,” id. (quoting Feerer v.
Amoco Prod. Co., No. 95-0012, 1998 U.S. Dist. LEXIS 22248, at *42–43 (D.N.M. May 28,
1998)), not, as here, the value of past relief that Kroger voluntarily provided to Plaintiffs.
Alternatively, class counsel also point to the Supreme Court’s decision in Boeing Co. v.
Van Gemert, 444 U.S. 472 (1980), for support of the added fee. In Van Gemert, the Supreme
Court determined that the unclaimed portion of a judgment fund could be counted as part of
the fund for purposes of calculating attorney’s fees. Unfortunately, Van Gemert, is inapposite
to the case at bar because it did not involve counting amounts paid separately from settlement
as part of the common fund. Rather, the Supreme Court reasoned that the unclaimed portion
of the judgment fund should be counted as part of the fund because even non-claimants have
an “undisputed and mathematically ascertainable claim to part of a lump-sum judgment
recovered on [their] behalf.” Boeing Co., 444 U.S. at 479 (emphasis added).
Plaintiffs’ counsel invocation of the “catalyst theory” in support of the additional fee
comes closer to the mark but also fails. That theory “allows the recovery of a common fund
fee so long as the claiming parties’ litigation played a causal role in achieving the benefits for
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which they seek fee reimbursement.” Kifafi v. Hilton Hotels Ret. Plan, 999 F. Supp. 2d 88, 96
(D.D.C. 2013) (quoting Consol. Edison Co. of New York, Inc. v. Bodman, 445 F.3d 438, 451 (D.C.
Cir. 2006)). As explained in the Kifafi case, this theory does allow inclusion in a common fund
of relief conferred on plaintiffs “voluntarily . . . by [defendants] outside of the court’s
jurisdiction.” Id.
There are two significant problems with the arguments Plaintiffs’ counsel advances for
including the Initial Payments in the common fund. First and foremost, the Sixth Circuit has
previously rejected the catalyst theory as a basis for awarding attorneys’ fees. In Chambers v.
Ohio Dept. of Hum. Servs., 273 F.3d 690, 692–93 (6th Cir. 2001), the Sixth Circuit concluded
that the “catalyst theory as a permissible basis for awarding attorneys fees” had not survived
the Supreme Court’s holding in Buckhannon Bd. and Care Home, Inc. v. W.V. Dep’t of Health and
Hum. Res., 532 U.S. 598 (2001). Accordingly, the catalyst theory Plaintiffs’ counsel so heavily
relies upon for recovery of additional fees in this class action is untenable under current Sixth
Circuit authority. This Court is obligated to follow Sixth Circuit precedent and cannot, until
the Court of Appeals overturns Chambers, look to the catalyst theory as a means of awarding
the added fees to class counsel.
Second, even if the Sixth Circuit’s decision in Chambers did not act as bar to awarding
attorneys’ fees under the catalyst theory, the Kifafi, decision in this Court’s view still makes
its use inappropriate to award fees from a common fund money transferred by defendant to
plaintiffs voluntarily and in a historical context. A closer look at Kifafi illustrates the point. In
that case, the class plaintiffs brought an ERISA challenge to the Hilton Hotels retirement plan,
in response to which Hilton amended the plan to benefit those class members. While the
Court concluded it could award attorneys’ fees on the value of the amendment to class
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members, it deducted from that amount the value of the amendment that had already been
paid out to class members or was in the process of being paid out. Kifafi, 999 F. Supp. 2d at
98. This was because ERISA prohibits alienation of retirement benefits that have been paid
out or were in the process of being paid out. Id. While the rationale relied upon in Kifafi is
ERISA-specific, the fact remains that the court in that case did not award attorneys’ fees on
amounts previously paid out by defendant to class plaintiffs during litigation. In this respect,
the case is similar to Chieftain Royalty. Both cases strongly suggest that courts may
appropriately award attorneys’ fees to class counsel based on prospective relief—even in
certain cases when the payment is made voluntary—but it is atypical and consequently
inappropriate to award attorneys’ fees based on monetary relief previously conferred on class
plaintiffs, voluntarily, by a defendant.
The Court further notes that class counsel have not identified for the Court a wage-
and-hour case where payments made prior to a settlement were included in the common fund
for purposes of the attorneys’ fee calculation. Instead, one of the cases identified by class
counsel in their motion for approval of class action settlement, Ayers v. SGS Control Servs., Inc.,
No. 03 Civ. 9078, 2008 WL 4185813 (S.D.N.Y. Sept. 9, 2008), points to the opposite result.
In that case, payments that were previously made to class plaintiffs were excluded from a fee
award calculation. Class counsel appealed that aspect of the district court’s decision but lost
specifically on that issue in the Second Circuit. Ayers v. SGS Control Servs., Inc., 353 F. App’x
466, 467 (2d Cir. 2009).5
5 	There is a significant factual distinction between the Ayers case and the one at bar. In Ayers, the decision to
exclude the previous payments made to the class plaintiffs before the negotiation of the settlement reached
in that case was based on the Settlement Agreement itself, which provided that attorneys’ fees would be
calculated based on a percentage of the settlement payment, not based on the total recovery of the class. Ayers,
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For all the reasons stated in the preceding paragraphs, the voluntary payments
previously made by Kroger to Class Members before the settlement was reached are not
properly included in the common fund for purposes of calculating attorneys’ fees. Such fees
will be calculated based on the Funds Available for Settlement specified in the parties’
Settlement Agreement, which totals $10,335,768.80. Doc. 143, ¶ 21.6 The Court concludes
that this fund represents the “common fund to be distributed among members of the class,”
Rawlings, 9 F.3d at 515, that the settlement created.
ii. 	Propriety of reducing award of attorneys’ fees where fees
negotiated separately from class recovery
Next, the Court must address whether, notwithstanding the errors in class counsel’s
common-fund calculation identified above, it should nonetheless award the requested fees
based on class counsel’s argument that the fees are coming out of Defendant’s pocket and not
any Class Members’ pockets.
At the June 24, 2025 fairness hearing, class counsel represented that in the mediation
conference when the general terms of settlement were agreed upon, the parties negotiated
attorneys’ fees separately from compensation for Class Members. According to class counsel,
the parties negotiated the compensation that Class Members would receive in the settlement,
then separately negotiated the attorneys’ fees Kroger would pay to class counsel.7
353 F. App’x at 467. Here, the Settlement Agreement contemplates including the previous payments made
by Kroger before the settlement as part of Plaintiffs’ total recovery. Doc. 143, ¶ 33.
6 	As specified in the parties’ agreement, the Funds Available for Settlement are $10,152,297.77 plus the costs
of claim administration. Doc. 143, ¶ 21. In Plaintiffs’ Settlement Motion, they identify the Funds Available
for Settlement, including costs of claims administration, as $10,335,768.80. Doc. 145, PageID 1288.
7 	At the fairness hearing, counsel for Kroger did not contest this account of the parties’ settlement negotiations.
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At first blush, class counsel’s argument seems appealing. After all, why not limit this
Court’s authority to award attorneys’ fees different from the terms provided for in the parties’
agreement, presumably negotiated at arm’s length by attorneys of equal experience, resources,
and sophistication?8 The answer, of course, lies in the law. This Court has an unmitigated
obligation to scrutinize class action settlements and the attorneys’ fees awarded arising from
its duty to protect absent Class Members; in the typical class action, every dollar awarded to
class counsel is a dollar that would otherwise go to class members. See Whitlock v. FSL Mgmt.,
LLC, 843 F.3d 1084, 1094–95 (6th Cir. 2016) (“[T]he court-approval mechanism [for class
action settlements] contained in Rule 23(e) is designed to protect absent class members and
other non-parties to the litigation . . . .”); see also In re Cinfed,, 2025 WL 1637686, at *10
(explaining that the duty to scrutinize attorneys’ fees in class actions arises from “inherent
conflict” between interests of class counsel and interests of absent class members, because in
a typical common fund settlement, “every dollar that goes to the attorneys is one fewer dollar
to share among the class”). Where the parties aver that attorneys’ fees are only coming from
Defendant, one might think the Court’s role in scrutinizing attorneys’ fees is assuaged.
As it turns out, there is authority to support limits on courts’ authority to review settled
attorneys’ fees in wage-and-hour cases, but not in the class action context. In Barbee v. Big River
Steel, LLC, 927 F.3d 1024 (8th Cir. 2019), the Eighth Circuit concluded that district courts do
not have the authority to review settled attorneys’ fees in FLSA actions. It observed: “The
parties were entitled to settle the attorney fee issue, and no law gave the district court authority
to interfere with that unconditional right.” Id. at 1027. The settlement at issue in Barbee,
however, was not a class-action settlement. While plaintiff in the Barbee action brought her
8 	Presumably, this is why class counsel discussed at the fairness hearing how negotiations were conducted.
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case initially as a class action, her settlement with Big River was not on a class-wide basis—
she agreed to release her claims against Big River, but no other members of the proposed class
agreed to release their claims. See Pierce v. Big River Steel LLC, No. 3:17-CV-63, 2017 WL
5709905, at *1 (E.D. Ark. Nov. 13, 2017). Here, by contrast, the settlement provides that all
Class Members who do not opt out will have released their claims against Kroger. Doc. 143,
¶ 40. For that reason, alone, Barbee must be viewed through a much different lens, and the
Court finds that the rule expressed therein does not apply in this instance.
Additionally, as explained in Hebert v. Chesapeake Operating, Inc., No. 2:17-CV-852,
2019 WL 4574509 (S.D. Ohio Sept. 20, 2019), Sixth Circuit law clearly mandates that the
Court review for reasonableness awards of attorney’s fees in all class action settlements; there
is no exception for fee awarded through a process negotiated separately from class recovery,
which plays out often in many cases. Id. at *3 (“Sixth Circuit case law indicates that this Court
must review settled attorney’s fees for reasonableness in common fund cases such as this
one.”) (collecting cases); see Rawlings, 9 F.3d at 516 (“In this circuit, we require only that
awards of attorney’s fees by federal courts in common fund cases be reasonable under the
circumstances.”); see also In re Cinfed, 2025 WL 1637686, at *10 (“[C]ourts have a role to play
in approving attorney’s fees in class actions.”).
iii. 	Reasonableness of requested fee
Having resolved these two preliminary issues, the Court turns next to the penultimate
question of whether class counsel’s fee request is reasonable. “A reasonable fee is one that is
adequate to attract competent counsel, but does not produce windfalls to attorneys.” Reed v.
Rhodes, 179 F.3d 453, 471 (6th Cir. 1999) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984))
(alteration and internal quotation marks omitted). There are two methods for determining
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whether an award of attorney’s fees is reasonable: the percentage-of-the-fund method and the
lodestar method. Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. App’x 496, 498 (6th Cir.
2011). This Court sides with those courts that make it a practice to use one method to calculate
fees and then to cross-check that determination using the other method. Id. Here, Plaintiffs’
attorneys propose using the percentage-of-the-fund method. Doc. 146, PageID 1338. The
Court agrees that this is the appropriate method for calculating attorneys’ fees in this case. See
Satterly v. Airstream, Inc., Nos. 3:19-cv-32, 3:19-cv-107, 2020 WL 6536342 (S.D. Ohio Sept.
25, 2020) (adopting percentage method in wage-and-hour case and collecting supporting
cases). However, the Court will calculate the percentage-of-the-fund using only the funds
available for settlement, excluding the Initial Payments paid voluntarily by Kroger prior to any
settlement being reached in this case between the parties.
Here, class counsel requests $4,878,376.85 in attorneys’ fees and litigation expenses.
Doc. 145, PageID 1288. However, the total funds available for settlement are $10,335,768.80.
Id. As a percentage of the funds available for settlement, then, class counsel’s requested fees
are an eyebrow raising 47% –nearly half the recovery present in the common fund. This fee
amount is high, given that the customary fees awarded in a typical wage-and-hour case in this
and other districts is one-third of the common fund. See Brandenburg v. Cousin Vinny’s Pizza,
LLC, No. 3:16-cv-516, 2019 WL 6310376, at *5 (S.D. Ohio Nov. 25, 2019) (observing that
“one-third of the settlement fund is a normal fee amount in a wage and hour case”); Satterly,
2020 WL 6536342, at *10 (“Class counsel requests an award of one-third of the settlement
fund . . . . This is a normal fee amount in common fund settlement in wage and hour cases.
The Court will not deviate from the norm here.”); Carr v. Bob Evans Farm, Inc., 1:17-cv-1875,
2018 WL 7508650, *4 (N.D. Ohio July 27, 2018) (Even “[i]n FLSA collective actions in Ohio,
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courts have almost uniformly awarded attorney’s fees that constituted one-third of the
fund.”).
Having noted that his award is higher as a percentage of the fund than what is typically
awarded in actions of this type in this district, the Court turns to the Ramey factors as
articulated by the Sixth Circuit for guidance. See Ramey, 508 F.2d at 1196. 	“There is no
formula for weighing these factors. Rather, the Court should be mindful that each case
presents a unique set of circumstances . . . and thus different factors could predominate
depending on the case.” In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 764 (S.D.
Ohio Dec. 31, 2007).
1. 	Value of the settlement
As explained above, the settlement is valuable to Class Members, especially in light of
the difficulties each Class Member would probably have faced in obtaining relief on their own,
including having to hire counsel on their own. “The settlement provides tangible relief to class
members and eliminates the risk and uncertainty that the parties would otherwise face if this
litigation were to continue.” Cousin Vinny’s Pizza, 2019 WL 6310376, at *6. The fact that there
were only eleven opt-outs out of a Class of more than 47,000 is a strong indication of the value
the settlement provided to Class Members. Doc. 145, PageID 1297. See Cousin Vinny’s Pizza,
2019 WL 6310376, at *6. However, the settlement is not exceptionally valuable to Class
Members, such that it warrants awarding an unusually high percentage of the fund to class
counsel.
2. 	Social value
There is no doubt a “benefit to society in ensuring that claimants with smaller claims
may pool their claims and resources.” Id. Society’s stake in rewarding attorneys who take
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wage-and-hour cases like this one indicates class counsel should receive a substantial award
of attorneys’ fees. However, the social value of this case is similar to other wage-and-hour
cases; none of the factors present in this case militate towards awarding class counsel
significantly more attorneys’ fees—47% which is more than the—33% typically granted in
this district for wage and hour and FLSA cases of this type.
3. 	Contingent fee basis
Class counsel took this case on a contingent-fee basis. Doc. 146, PageID 1341. Having
assumed that risk, this supports the attorneys’ request for receiving a significant portion of the
common fund. By contrast, however, class counsel’s representation agreement with Named
Plaintiffs provided that Class Plaintiffs’ attorneys were entitled to a contingency fee of up to
40% of the “gross settlement amount.” Doc. 146-1, PageID 1352. Given the express terms of
the agreement reached between the Named Plaintiffs and class counsel as to the percentage
of the fund which should be paid as attorneys’ fees and the determination by this Court that
the Initial Payments should not be included in the settlement value, the Court concludes that
it is proper to reduce the award of attorneys’ fees to an amount more in line with the fund
representing the “common fund to be distributed among members of the class,” that the
settlement created. See Rawlings, 9 F.3d at 515. An award of attorneys’ fees in excess of 40%
of the “gross settlement amount” violates that principle.
4. 	Value of the services on an hourly basis
This next consideration is sometimes referred to as the “lodestar cross-check.” Cousin
Vinny’s Pizza, 2019 WL 6310376, at *6. In their initial request for an award of attorney’s fees,
class counsel did not provide information on the value of their services on an hourly basis.
The Court requested that information at the fairness hearing, and class counsel provided those
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billing 	records 	in 	subsequent 	briefing. 	Docs. 	149, 	150. 	Class 	counsel’s 	lodestar 	is
$1,707,980.05. Doc. 149, PageID 1425. This results in a “lodestar multiplier” of 2.85. Though
slightly higher than the norm, this factor cuts in favor of approval of class counsel’s requested
fees, as courts frequently approve fee requests resulting in lodestar multipliers in this range.
See Cousin Vinny’s Pizza, 2019 WL 6310376, at *7; see also Castillo v. Morales, Inc., No. 2:12-cv-
650, 2015 WL 13021899, at *7 (S.D. Ohio Dec. 22, 2015) (observing that lodestar multipliers
of approximately 2.5 are typical in wage-and-hour cases and other similar cases).
5. 	Complexity
The fifth factor, complexity of the litigation, cuts against approval of class counsel’s
requested fee award. Wage and hour cases are “generally complex, time-consuming, and
risky.” Smith v. Local Cantina, LLC, No. 2:20-cv-03064, 2022 WL 1183325, at *6 (S.D. Ohio
Apr. 19, 2022). This case involves Class Members in many different states, which required
class counsel to navigate the complexities of state-to-state variation in wage-and-hour law.
However, this litigation was resolved at mediation at a rather early stage of the case, and did
not involve a voluminous motion practice on the part of class counsel. See Doc. 145, PageID
1284.
Thus, compared to other wage and hour class actions litigated in this district which
involve an extensive motion practice and multiple hearings this case is not particularly
complex. For example, in Brandenburg v. Cousin Vinny’s Pizza, LLC, No. 3:16-cv-516, 2018 WL
5800594 (S.D. Ohio Nov. 6, 2018), class counsel’s motion for class certification was opposed,
and class counsel also needed to overcome defendant’s motion to dismiss. In this case, by
contrast, class counsel’s motion for Class certification was unopposed, and Kroger never
moved to dismiss. Importantly, class counsel in Cousin Vinny’s received only one-third of the
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common fund, which was less than their lodestar. Cousin Vinny’s Pizza, LLC, 2019 WL
6310376, at *7.
To take another example, this Court recently approved a request for attorney’s fees in
the amount of one-third of the settlement amount where class counsel had prevailed before
the Sixth Circuit on an issue of first impression. Hawkins v. Cintas Corp., No. 1:19-cv-1062,
2025 WL 523909, at *4 (S.D. Ohio Feb. 18, 2025). That level of legal complexity, time
consumption, and risk on the part of class counsel is absent here.
By comparison, it appears the most complex issue in the case was identifying how the
underpayment came about and who was affected. While class counsel did a significant
amount of work resolving that issue, Kroger and Deloitte also spent considerable time and
resources in the effort to resolve the issue themselves. See Doc. 145, PageID 1284. Kroger,
rather than class counsel, resolved much of the complexity in this case, while at the same time
absorbing much of the additional administrative costs.
6. 	Professional skill and standing of counsel
The 	Court 	is 	aware 	that 	litigating 	against 	a 	national 	company 	of 	the 	size,
sophistication, and economic resources of Kroger necessarily involves a degree of complexity.
However, given that the case was resolved at an early stage, with more than a modicum of
cooperation and administrative assistance from Kroger, the Court concludes that there is no
unusual complexity here that justifies an award of attorneys’ fees higher than what is typical
in normal wage-and-hour class actions.
All parties in this action were represented by experienced wage-and-hour litigators.
Anderson Alexander, PLLC has litigated hundreds of wage-and-hour cases around the
country. See Heitzman v. Calvert’s Express Auto Serv. & Tire, LLC, No. 22-cv-2001, 2023 WL
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2117805, at *5 (D. Kan. Feb. 17, 2023). Robert DeRose, likewise, is an experienced wage-
and-hour litigator. See Doc. 146, PageID 1343. Handley Farah & Anderson, which initially
filed the Austin action in the Eastern District of Virginia and is included in the fee request
here, is also experienced in class-action litigation. See, e.g., Shuman v. SquareTrade Inc., No. 20-
cv-2725, 2023 WL 2311950 (N.D. Cal. Mar. 1, 2023). Counsel for Kroger, Mark Knueve, is
chair of the wage and hour practice group at Vorys, Sater, Seymour and Pease LLP, one of
Ohio’s largest law firms. See Doc. 146, PageID 1343.
Counsel in this action have significant experience in wage-and-hour litigation. This
cuts in favor awarding the requested fees, as it provides the Court some assurance that the
request is reasonable. However, the professional skill and standing of counsel here does not
automatically dictate that class counsel should receive a more generous fee award that is out
of step with what is typically awarded in wage-and-hour class actions.
iv. 	Reduced fee award
As previously noted, one-third of the common fund is a “normal fee amount in a wage
and hour case.” Cousin Vinny’s Pizza, 2019 WL 6310376, at *5. The rule, as noted, is no
different in FLSA collective actions in Ohio; courts have “almost uniformly awarded
attorney’s fees that constituted one-third of the fund. Carr, 2018 WL 7508650, at *4–*5.
Beyond the wage-and-hour context, roughly one third of the common fund—or somewhat
lower—is the typical award in class actions nationwide. See 5 William B. Rubenstein, Newberg
and Rubenstein on Class Actions § 15:89 (6th ed. 2025) (observing that recent empirical data
indicates that “percentage awards in class actions are generally between 20%–30%, with the
average award hovering around 25%”). A “normal fee amount” for a wage-and-hour case of
one-third of the common fund, see Cousin Vinny’s Pizza, 2019 WL 6310376, at *5, is reasonable
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here, where the case involved the typical complexity of nationwide wage-and-hour litigation,
but no unusual complexity beyond that.
For the reasons expressed, the Court will award approximately one-third of the funds
made available for settlement. The total funds made available for settlement, including costs
of claim administration, are $10,335,768.80. Accordingly, the Court will award attorneys’
fees of $3,445,256 to class counsel.
There is ample precedent in this circuit for an order of this type—reducing attorney’s
fees from the amount requested to one-third of the common fund. See Carr, 2018 WL 7508650,
at *5 (reducing award of attorney’s fees from approximately $1.2 million to $1 million, which
was one-third of common fund); see also Ramsey v. FirstEnergy Corp., No. 5:23-cv-86, 2023 WL
6794478, at *8 (N.D. Ohio Oct. 13, 2023) (reducing attorney’s fees in FLSA action from
$19,000 to approximately $15,000); In re Cinfed, 2025 WL 1637686, at *15 (reducing award
of attorney’s fees from approximately $230,000 to $175,000, which was one fourth of the
common fund).
v. 	Lodestar cross-check for reduced award
The Court has used the percentage-of-the-fund method to arrive at this award, having
considered the Ramey factors and fees awarded in actions similar to this one. No separate
analysis of the Ramey factors is necessary here, with the exception of factor four, the value of
class counsel’s services on an hourly basis, which is the “lodestar cross-check.” Cousin Vinny’s
Pizza, 2019 WL 6310376, at *6.
Class counsel’s lodestar is $1,707,980.05. The attorneys’ fees awarded thus result in a
lodestar multiplier of 2.017—slightly below the norm for this district. This multiplier is
reasonable, when compared with ones approved in similar cases in this circuit. See Castillo,
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2015 WL 13021899, at *7 (approving multiplier of 2.5 in wage and hour class action, and
collecting cases in which similar multipliers were approved); Cousin Vinny’s Pizza, 2019 WL
6310376, at *7 (approving fee request that was less than class counsel’s lodestar).
The current multiplier used here is also reasonable when viewed in light of the average
lodestar multipliers approved in class actions nationwide. See William B. Rubenstein, § 15:89
(finding that average lodestar multiplier in common fund cases where size of fund was $ 6.5–
12 million was 1.48, and average lodestar multiplier in Sixth Circuit common fund cases was
1.13). The lodestar multiplier of 2.02 for the fees awarded here—that is to say, a fee award of
more than twice what class counsel would reasonably bill for their work—is “adequate to
attract competent counsel, but does not produce windfalls to attorneys.” Rhodes, 179 F.3d at
471.
D. Counsel is entitled to reimbursement of costs.
Because the Court has reduced the award of Plaintiffs’ attorneys’ fees, it will separately
address the litigation expenses incurred by class counsel. Class counsel did not request
reimbursement of expenses separately from attorneys’ fees in its Fee Motion. Doc. 146. Class
counsel represent that they have incurred costs of approximately $48,845.38 in this litigation.
Id. at PageID 1344–45.
“Under the common fund doctrine, Counsel are entitled to reimbursement of all
reasonable out-of-pocket expenses and costs incurred in the prosecution of claims and in
obtaining settlement.” Estate of Benjamin v. DJGN LLC, No. 1:22-cv-166, 2023 WL 7536973,
*7–8 (S.D. Ohio Nov. 13, 2023). These expenses are not excessive in the context of
nationwide class-action litigation. In addition to attorneys’ fees, the Court AWARDS
$48,845.38 to class counsel as reimbursement of litigation expenses.
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E. The Court approves the proposed expenses of claim administration.
Class counsel requests approval of disbursal of administrative costs from the common
fund, with settlement administrator Rust Consulting estimating those costs to be $175,000.
Doc. 145-1, ¶ 16. The parties’ Settlement Agreement contemplates disbursal of up to $220,000
of the common fund for settlement administration expenses. Doc. 143, ¶ 13. Based on the
representations of Rust, an experienced settlement administrator, the Court finds these costs
reasonable and APPROVES payment of settlement administration costs from the common
fund.
F. The Court approves case contribution awards to Named Plaintiffs.
As a final matter, the Court must address the question of case contribution awards for
Named Plaintiffs. Under the terms of the proposed settlement, the Named Plaintiffs in the
three cases presently before this Court will each receive enhancement payments of $5,000. See
Settlement Agreement, Doc. 143, ¶ 45(d). Those named Plaintiffs are: Brandon Wilder,
Donald Austin, Kacey Ebersole, Otis Woods, Deborah Winston, Sharon Simpson, and Lori
Dalton. Id. ¶¶ 17, 26.
“[I]ncentive awards are efficacious ways of encouraging members of a class to become
class representatives and rewarding individual efforts taken on behalf of the class.” Hadix v.
Johnson, 322 F.3d 895, 897 (6th Cir. 2003). Courts routinely approve these awards to
compensate named plaintiffs for their service to the class and for the risks they incurred
participating in the litigation. See Hawkins, 2025 WL 523909, at *5–6. In determining whether
to approve incentive awards, courts often consider: (1) the benefit to members of the class, (2)
whether class representatives assumed any financial risk, and (3) the amount of time and effort
class representatives spent on the litigation. Id. at *5 (citation omitted).
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Having 	considered 	these 	factors, 	the 	Court 	APPROVES 	the 	proposed 	case
contribution awards. Notably, as to second of the Hawkins v. Cintas Corp factors identified,
Named Plaintiffs took on some risk by leading a lawsuit against their employer. The first
factor under Hawkins v. Cintas Corp also supports the incentive awards; this action produced
meaningful benefits for Class Members. As for the third and final factor under Hawkins v.
Cintas Corp, it cuts against approval because this case was resolved via settlement at an early
stage, but the Court finds that this factor is outweighed by the other two. It is worth noting
that case contribution awards in this range being approved by this Court for Named Plaintiffs
are frequently approved in wage-and-hour class actions. See Castillo, 2015 WL 13021899, at
*5 (S.D. Ohio Dec. 22, 2015) (approving $8,000 award for class representative and collecting
cases where awards in similar amounts were approved).
IV. 	CONCLUSION
“In determining fee awards, courts should not become green-eyeshade accountants,
but instead must content themselves with rough justice.” Rembert v. A Plus Home Health Care
Agency LLC, 986 F.3d 613, 618 (6th Cir. 2021). The Court has charted a course, in this case,
as close to the Sixth Circuit’s admonition as possible. Having concluded that class counsel
erroneously included the Initial Payments in their calculation of the common fund,9 the Court
cannot approve the fee request because an award of 47% of the common fund is excessive
given that this action was not especially complex. As class counsel themselves point out, an
award of one-third of the common fund is routine in wage-and-hour class actions in Ohio. See
Doc. 146, PageID 1338. Under these circumstances, the Court awards attorney’s fees in the
amount of one-third of the common fund. Such an award results in a lodestar multiplier of
9 	The Court reached this conclusion, it should be noted, after requesting additional briefing on the issue.
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just over two—which is proportional to what has been awarded in similar wage-and-hour
actions in this and other districts across the nation under similar circumstances. The Court
finds this award to be appropriate in this case.
For the reasons stated, class counsel’s Unopposed Motion for Settlement Approval
(Doc. 145) is GRANTED. Class counsel’s Unopposed Motion for Attorney Fees and Costs
(Doc. 146) is GRANTED IN PART. The Court AWARDS attorneys’ fees to class counsel
in the amount of $3,445,256. The Court further AWARDS $48,845.38 to class counsel as
reimbursement of litigation expenses, $175,000 to Rust Consulting for the costs of claims
administration, and enhancement payments in the amount of $5,000 to each of the Named
Plaintiffs in the three cases currently before this Court, as requested by class counsel.
IT IS SO ORDERED.
November 26, 2025
Jeffery P. Hopkins
United States District Judge
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