Sylla et al v. Amazon Labor Union et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
DR. BRIMA SYLLA, et al.,
REPORT AND
RECOMMENDATION
23-CV-5261 (AMD) (TAM)
Plaintiffs,
-against-
AMAZON LABOR UNION and CHRIS
SMALLS, as President of the Amazon
Labor Union,
Defendants.
----------------------------------------------------------X
TARYN A. MERKL, United States Magistrate Judge:
On July 10, 2023, a group of 41 Plaintiffs, members of Defendant Amazon Labor
Union (the “ALU” or the “Union”), filed a complaint, seeking an injunction compelling
Defendants ALU and its then-president, Chris Smalls (collectively, “Defendants”), to
hold a union officer election and “to then conduct it democratically,” under Sections 101
and 609 of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C.
§§ 411, 529.1 Compl., ECF 1, ¶ 1; see generally id.; Am. Compl., ECF 9. After months of
litigation and a nearly eight-hour settlement conference before the undersigned
Magistrate Judge, the parties filed a consent order, governing the terms by which a
democratic union election would be held, which the Honorable Ann M. Donnelly
entered on January 10, 2024. See Dec. 8, 2023 ECF Min. Entry & Order (reporting that an
1 Plaintiffs’ complaint states that it is bringing claims under “Section 101(a)(1) of the
LMRDA, 29 U.S.C. Sec. 101(a)(1)” and “Section 101(a)(2) of the LMRDA, 29 U.S.C. Sec.
101(a)(2).” Compl., ECF 1, ¶¶ 78, 80; see also Am. Compl., ECF 9, ¶¶ 78, 80. The Court notes that
the section of the United States Code corresponding to Section 101 of the LMRDA is located at
29 U.S.C. § 411, and thus construes Plaintiffs’ complaint accordingly. Cf. 29 U.S.C. § 101
(provision of the Norris-LaGuardia Act).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 1 of 34 PageID #:
<pageID>

2
agreement in principle was achieved at the settlement conference); Joint Letter, ECF 45
(requesting that the court enter the proposed consent order filed at ECF 45-1); Consent
Order, ECF 46 (entering consent order).
Following further litigation, as well as the ALU’s affiliation with the
International Brotherhood of Teamsters (“IBT” or the “Teamsters”), an election was
held in July 2024. See Pls. Letter Mot., ECF 84. As a result, some of the individuals who
initially brought the suit became officers of Defendant ALU; for example, Plaintiff
Connor Spence assumed the role of president, which had previously been held by
Defendant Chris Smalls. See Schwartz Decl., ECF 84-1; Certification of Election Results,
ECF 84-2.
Presently before the Court is Plaintiffs’ counsel’s motion for attorney’s fees,
which Defendants oppose. Pls. Mot. for Att’y’s Fees (“Fees Mot.”), ECF 92. For the
following reasons, the Court respectfully recommends denying the motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. 	ALU Formation & Organizing Drive: Fall 2021 – Spring 2023
Plaintiffs are present and former workers at Amazon’s JFK8 fulfillment center
(“JFK8”), located in Staten Island, New York. See Am. Compl., ECF 9, ¶ 3. As alleged in
Plaintiffs’ amended complaint, in April 2021, JFK8 workers, including Plaintiff Spence
and Defendant Smalls, began an organizing drive among their colleagues with the goal
of forming a union of Amazon employees at JFK8; this drive was ultimately successful,
with the National Labor Relations Board (“NLRB”) certifying the results of the election
on January 12, 2023. Id. ¶¶ 6–10, 17–33, 66. Defendant Smalls was to be the ALU’s first
president, while Plaintiff Spence was initially elected Interim Vice President of
Membership. Id. ¶ 15.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 2 of 34 PageID #:
<pageID>

3
Per the amended complaint, the first ALU constitution was ratified on October
17, 2021. Id. ¶ 10. In June 2022, ALU leadership revised this constitution, in consultation
with counsel; this constitution (the “Second Constitution”) would have required a
leadership election in 2024 or “60 days after certification of the results of the
representation election, whichever comes first.” Id. ¶¶ 34–39. But see Mirer Decl., ECF
98-1, ¶¶ 11–14 (disputing whether the Second Constitution “had ever been adopted”);
Palmer Decl., ECF 98-2, ¶¶ 8–10 (describing the process of amending the constitution).
Following the revision of the constitution, Plaintiffs allege that “internal union
disagreements” came to a head; in the main, these centered around “a common
grievance . . . that the [U]nion was undemocratic.” Am. Compl., ECF 9, at 10
(capitalization modified), ¶ 54; see id. ¶¶ 47–59. A third constitution was adopted,
without a vote of the membership, on December 9, 2022. Id. ¶¶ 60–64. This constitution
set the timing for an officers’ election for three months after the ALU ratified a collective
bargaining agreement with Amazon — “a date which could be years into the future,” if
it ever occurred.2 Id. ¶ 63(a).
Following this meeting, a number of the plaintiffs founded a reform caucus and
circulated a petition to amend the Union’s constitution. Id. ¶¶ 65, 71. Plaintiffs allege
that members of the reform caucus, such as Plaintiffs Sylla and Cioffi, were excluded
from general union meetings “due to [their] association with Spence and the
reformists.” Id. ¶ 68; see id. ¶ 69. Cioffi was “told that his union membership was
revoked,” and his access to ALU attorneys for assistance with a separate NLRB charge
2 To date, the ALU has not begun to bargain with Amazon. See Palmer Decl., ECF 98-2,
¶ 22; see also Amazon.com Servs. LLC v. Nat’l Lab. Rels. Bd., 151 F.4th 221, 224–26 (5th Cir. 2025)
(summarizing the history of Amazon’s challenge to the NLRB’s charge seeking an order
requiring Amazon to bargain with the ALU).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 3 of 34 PageID #:
<pageID>

4
was terminated. Id. ¶ 68. Plaintiffs further allege that Defendant Smalls “threatened
Sylla and all other reform caucus organizers . . . with legal action for false
representation of a government-certified union.” Id. ¶ 70. Plaintiffs circulated another
petition, “calling for a membership meeting to vote on restoring the last properly
adopted set of bylaws,” which would have set an officer’s election into motion, while
simultaneously scheduling a mediation session in an effort to resolve the dispute
without litigation. Id. ¶¶ 71–72.
In late June 2023, “Plaintiffs were notified that the ALU Executive Board had
declined mediation,” and accordingly, sought judicial intervention to obtain “a fair and
democratic election.” Id. ¶¶ 73, 75.
II. The Instant Litigation: Summer – Fall 2023
As noted above, Plaintiffs filed the complaint in this case on July 10, 2023. See
Compl., ECF 1. That same day, Plaintiffs filed a motion for a temporary restraining
order (“TRO”) and preliminary injunction, seeking to enjoin Defendants from
“governing [the] ALU pursuant to the Amended Constitution adopted in or about
December[] 2022,” rather than the June 2022 Amended Constitution, and directing
Defendants to hold an election by August 30, 2023. Mot. for Order to Show Cause, ECF
2. On July 11, 2023, Plaintiffs filed an amended complaint, which brought the number of
Plaintiffs in the case to over 80. See Am. Compl., ECF 9. Also on July 11, 2023, Judge
Donnelly scheduled a hearing on the TRO for July 13, 2023. See July 11, 2023 ECF Order.
During the July 13, 2023 TRO hearing, Judge Donnelly denied Plaintiffs’ request for a
TRO, holding that Plaintiffs “make only vague [and] conclusory allegations” and “do
not establish an injury that is neither remote nor speculative, but actual and imminent
and that cannot be remedied by an award of monetary damages.” July 13, 2023 ECF
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 4 of 34 PageID #:
<pageID>

5
Min. Entry & Order (alteration in original). Plaintiffs were directed to move for a
preliminary injunction by August 14, 2023. Id. That did not happen.
On August 1, 2023, Defendants requested a pre-motion conference ahead of an
anticipated motion to dismiss, and on August 14, 2023, Plaintiffs requested leave to file
a second amended complaint. See Defs. Mot. for Pre-Mot. Conference, ECF 22; Pls. Mot.
to Amend Compl., ECF 26. After Defendants requested that any amended complaint or
preliminary injunction motion be filed under seal, Plaintiffs filed a letter requesting a
settlement conference before the undersigned Magistrate Judge. Defs. Resp. to Mot.,
ECF 28; Pls. Letter, ECF 30. Plaintiffs’ deadlines for the second amended complaint and
preliminary injunction were extended to follow the settlement conference, which was
scheduled for December 8, 2023. See Oct. 20, 2023 ECF Scheduling Order.3
After hours of negotiations, the settlement conference was successful. The parties
achieved “an agreement in principle . . . on how to move forward as a unified union,
3 Prior to this settlement conference, on November 7, 2023, Defendants filed a motion to
disqualify counsel Arthur Schwartz, which Judge Donnelly referred to the undersigned. Defs.
Mot. to Disqualify Counsel (“Disqualification Mot.”), ECF 31; Nov. 9, 2023 ECF Order
Respectfully Referring Mot. Defendants’ argument centered on an allegation that Mr. Schwartz
had been retained by Michelle Valentin Nieves, who had previously been an officer of
Defendant ALU (and thus had access to privileged information), prior to her “join[ing] the
Reform Caucus” and “support[ing] their litigation.” Disqualification Mot., ECF 31, at ECF p. 2
(quotation marks omitted); see also Nieves Decl., ECF 18 (disputing Plaintiffs’ characterization of
the June 2022 meeting regarding the Second Constitution). Plaintiffs opposed the motion in a
letter filed under seal. See Pls. Resp. in Opp’n, ECF 34. Later, Plaintiffs’ counsel averred that he
“do[es] not, and will not, while this litigation is pending, represent Ms. Nieves.” Pls. Letter, ECF
42. Although Defendants ultimately withdrew their motion following the settlement conference,
Ms. Nieves later filed a motion to intervene, contending that she was entitled to relief on the
basis of Defendants’ “non[-]compliance [with] the Constit[u]tion and bylaws.” Mot. to
Intervene, ECF 49; see Dec. 21, 2023 ECF Min. Entry & Order (confirming withdrawal of the
disqualification motion); see also Mem. Decision & Order, ECF 74 (denying Ms. Nieves’s and
three other pro se motions to intervene).
While this episode is not directly relevant to the core issues at play in the instant motion
for attorney’s fees, the Court recounts it to illustrate both the highly contentious nature of the
litigation and the fluid nature of the boundaries on both sides of the v. in this case.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 5 of 34 PageID #:
<pageID>

6
including the scheduling of a member meeting and an election of officers.” Dec. 8, 2025
ECF Min. Entry & Order. The parties were directed to finalize a “unity statement and
consent decree,” the former of which would be issued publicly and the latter of which
would be filed with the court. Id.; see Proposed Consent Order, ECF 45-1; id. ¶ 3
(indicating that the parties published the unity statement). On January 5, 2024, the
parties submitted their finalized proposed consent order, and on January 10, 2024,
Judge Donnelly ordered it. See Pls. Letter, ECF 45; Consent Order, ECF 46.
III. The Consent Order & Further Litigation: Winter 2023 – Spring 2024
The consent order is just five pages long. It stipulates that Plaintiffs — by now
called the “Democratic Caucus of the Amazon Labor Union” (the “Caucus”) — and
Defendants recognize that “continuing the litigation prevents all parties from uniting to
work towards a good contract” for JFK8 workers, and, in support of that goal, “the
parties have committed to work together . . . [by] giving the members of the union a say
in whether to hold various elections.” Consent Order, ECF 46, ¶¶ 1, 2; see also id. ¶ 3.
The parties further agreed not to make “public statements . . . critical of the other” and
address disagreements “on the merits and not as public personal attacks on various
persons or union leaders.” Id. ¶ 4. The parties also agreed to “reintegrate” Caucus
members into “the union’s representation mechanisms” and to hold a mass member
meeting in February 2024, to discuss updates, “whether to hold elections for new
officers,” and “whether to elect a constitution committee to propose updating and
amending the Union’s constitution.” Id. ¶¶ 5, 6, 9.
The consent order laid out processes by which the meeting and any resulting
vote would be accessible to as many workers as possible. See id. ¶¶ 7–18, 21. It also
called for the appointment of a neutral monitor to oversee the meeting, the voting, and
any related disagreements between the parties. Id. ¶¶ 15–16, 19–20, 22. The order
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 6 of 34 PageID #:
<pageID>

7
proposed timing for any elections resulting from the meeting and the roles to be elected,
and contemplated a pause in the agreement in the event of active bargaining with
Amazon. Id. ¶¶ 23–25.
The parties appointed Richard Levy, a longtime union attorney, as the neutral
monitor. See Joint Letter, ECF 47; Pls. Letter, ECF 48. The mass meeting was held from
February 27, 2024, through March 2, 2024, resulting in a vote in favor of holding an
election. See Schwartz Decl., ECF 62-1, ¶¶ 8–9. But the path to the election was not
smooth. On April 14, 2024, the parties filed competing letters, representing opposite
views on the potential impact of the then-pending motions to intervene on the elections
process and consent order. See Defs. Letter, ECF 60; Pls. Letter, ECF 61. On April 18,
2024, Plaintiffs moved for an All Writs Act order, seeking to compel Amazon (a non-
party to this litigation) to provide the names and addresses of workers who would be
eligible to vote in the union officers’ election, and to allow employees running for office
access to the areas outside the front entrance and the break rooms at JFK8. All Writs Act
Mot., ECF 62. Following a hearing on Plaintiffs’ All Writs Act petition, Judge Donnelly
reminded the parties that “they are bound by the [] Consent Order, which explicitly
states that any disagreements . . . will be resolved by the neutral monitor.” Apr. 25, 2024
ECF Min. Entry & Order (quotation marks omitted). Defendants also served a Rule 45
subpoena on Amazon, relying on the consent order for authority, which Amazon
moved to quash. Mot. to Quash, ECF 71; Amazon Letter, ECF 65; see id. at 3. Judge
Donnelly ultimately granted Plaintiffs’ All Writs Act motion in relevant part, requiring
Amazon to provide the names and addresses of JFK8 employees to the neutral monitor
so that the election could be held. See Mem. Decision & Order, ECF 75, at 12–14. Judge
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 7 of 34 PageID #:
<pageID>

8
Donnelly also granted Amazon’s motion to quash the Rule 45 subpoena but denied
Amazon’s motion for a protective order. See id., at 8–9.4
IV. The Teamsters Affiliation, Elections, and Dismissal of This Case:
Summer – Fall 2024
In the background, the ALU and the Teamsters were discussing a possible
affiliation in order to “combine the strengths of the IBT and the ALU.” See Suetholz
Decl., ECF 98-3, ¶ 17; see id. ¶¶ 11–17. On June 3, 2024, the ALU affiliated with the
Teamsters, creating a new local, ALU-IBT Local 1, formally under the umbrella of the
Teamsters. Id. ¶¶ 18–19. Per the terms of the parties’ affiliation agreement, the “‘ALU
and IBT are responsible for their respective debts, liabilities, and all other obligations,
and neither ALU nor IBT shall be responsible for the debts, liabilities, or obligations of
the other.’” Id. ¶ 21 (quoting Affiliation Agreement, ECF 98-3, at ECF p. 8).
The election ultimately took place on July 30, 2024, and the results were certified
on August 8, 2024: Plaintiff Spence was elected President, Plaintiff Sylla was elected
Vice President, and 11 individuals, including Plaintiffs Martinez, Cioffi, Medina,
Sherwood, and Mohan, were elected to the constitution committee. Certification of
Election, ECF 84-2; see Letter Mot. for J. Based on Settlement, ECF 84; Schwartz Decl.,
ECF 84-1. The Teamsters shouldered the costs of this election; by that point, the ALU
“[did] not exist anymore and [had] no assets.” Suetholz Decl., ECF 98-3, ¶¶ 24–25.
4 Judge Donnelly later denied Plaintiffs’ request for attorney’s fees accrued in connection
with Amazon’s motion for reconsideration of this order, observing that Plaintiffs’ fees request
did not contain the requisite degree of specificity for an award based on bad faith. Oct. 7, 2024
ECF Order; see Pls. Resp. in Opp’n, ECF 77, at 5 (requesting attorney’s fees in light of
“inappropriate content” contained within the motion to reconsider). The Court notes that
Plaintiffs’ instant fee motion requests 4.1 hours’ worth of fees in connection with the motion for
reconsideration. See Billing Records, ECF 92-2, at 3 (entries dated May 12, 2024, through May 13,
2024).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 8 of 34 PageID #:
<pageID>

9
On August 11, 2024, Plaintiffs filed a motion styled as a motion for judgment
based on settlement, requesting that the court certify the election, discontinue the case,
and set a schedule for an attorney’s fee application, which Judge Donnelly referred to
the undersigned.5 Letter Mot. for J. Based on Settlement, ECF 84; Aug. 26, 2024 ECF
Order Respectfully Referring Mot. At a hearing before the undersigned, Plaintiffs
confirmed that they no longer sought an order certifying the election, but would move
to discontinue the case and seek attorney’s fees; Defendants agreed that the case should
be discontinued, but opposed any fee application. Oct. 16, 2024 ECF Min. Entry &
Order. Accordingly, the Court terminated the motion for judgment as moot, directed
Plaintiffs’ counsel to move for discontinuance, and encouraged the parties “to discuss
whether the question of attorney’s fees can be resolved by agreement or settlement.” Id.
On October 16, 2024, Plaintiffs filed a consent motion to dismiss the action and
“set[ an] attorney[’]s fee application schedule,” which Judge Donnelly entered on
November 22, 2024. Proposed Order, ECF 89-1; Order, ECF 90. The order stipulated that
“Plaintiffs’ Counsel ha[d] leave to file an application for attorney[’]s fees” within 60
days of entry of the order, a deadline which was later extended. Order, ECF 90, at 2;
Feb. 4, 2025 ECF Order (extending the time to file the attorney’s fee application to
March 22, 2025).
V. The Attorney’s Fees Motion: Spring 2025 – Present
On March 24, 2025, Arthur Schwartz, counsel for Plaintiffs, filed a motion for
attorney’s fees, arguing that Plaintiffs are entitled to a fee award under the common
5 Federal Rule of Civil Procedure 54(d)(2)(D) expressly provides that the court “may
refer a motion for attorney’s fees to a magistrate judge under Rule 72(b) as if it were a
dispositive pretrial matter.”
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 9 of 34 PageID #:
<pageID>

10
benefit doctrine because their litigation seeking an election resulted in a consent order
facilitating that election, benefitting the entire membership of the ALU. See generally
Mem. in Supp. of Mot. for Att’y’s Fees (“Pls. Mem.”), ECF 92-3, Fees Mot., ECF 92; see
also Schwartz Decl., ECF 92-1, ¶¶ 2–3. Mr. Schwartz further argued that any fee award
should be ordered payable by the ALU-IBT Local 1. Pls. Mem., ECF 92-3, at 1; see
Schwartz Decl., ECF 92-1, ¶ 10. Counsel requested $132,738.75, representing 196.65
hours of work billed at $675 per hour. See Schwartz Decl., ECF 92-1, ¶ 7; see also Billing
Records, ECF 92-2.
As anticipated, Defendants opposed the motion. See Defs. Mem. in Opp’n (“Defs.
Mem.”), ECF 95. Defendants argued, inter alia, that not only were Plaintiffs not
successful litigants in the sense contemplated by the common benefit doctrine, but also
that it would not be equitable to “raid the union treasury to pay legal fees” given that
“the Union agreed not to charge the workers any union dues until such time as they
secured a collective bargaining agreement,” and the Union “may not use money from
the Teamsters” to pay any fee request. Id. at 9 (capitalization modified). Defendants
further contended that Mr. Schwartz’s failure to provide his retainer agreement made
his application deficient, and speculated that if “his pay for successfully backing the
dissident slate of candidates [would be] to become the union’s general counsel,” then
his actions “appear self-interested rather than seeking to vindicate [Plaintiffs’] rights.”
Id. at 8–9. Mr. Schwartz objected to these statements as “hearsay.” Reply, ECF 96, at 3;
see Schwartz Reply Decl., ECF 96-1, ¶ 3.
On October 21, 2025, Judge Donnelly referred the attorney’s fee motion to the
undersigned. See Oct. 21, 2025 ECF Order Respectfully Referring Mot. That same day,
the Court directed Mr. Schwartz to file supplemental briefing, (1) clarifying his
assertions that his retainer agreement consisted of “‘a list signed’” by putative Plaintiffs,
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 10 of 34 PageID
#: <pageID>

11
(2) explaining whether Mr. Schwartz has been paid for his work on this case, and
(3) submitting “any additional evidence or authority in support of the proposition that
the fee award should be ‘made payable by ALU-IBT Local 1,’ apparently as a successor
in interest to the Amazon Labor Union.” Oct. 21, 2025 ECF Order (quoting Schwartz
Decl., ECF 92-1, ¶ 10).
In response, Mr. Schwartz averred that (1) he had agreed not to charge Plaintiffs
a fee, and instead would seek fees from the Union if successful; (2) he has not received
payment from anyone “for the work done, or for the expenses laid out in this case”; and
(3) “the Amazon Labor Union affiliated with the Teamsters Union before the election
occurred. . . . Part of the agreement was that it change its name to ALU-IBT Local 1. It
did not dissolve, nor did it change its constitution, nor was there a ‘new’ entity.”
Schwartz Suppl. Decl., ECF 97, ¶¶ 3, 8, 9. Defense counsel’s reply in opposition
included the declaration of David Suetholz, the General Counsel of the Teamsters, in
which he stated, under penalty of perjury, that the Teamsters agreed to pay Mr.
Schwartz’s attorney’s fees “in an action against the New York City police for
interference with the workers[’] rights” during a December 2024 strike “‘to compensate
him for his effort on behalf of the ALU-IBT Local 1 officers including Connor Spence
and Brima Sylla,’” and asked Mr. Schwartz “‘not to continue seeking the fees from IBT
or ALU-IBT Local 1.’” See Defs. Suppl. Opp’n, ECF 98, at 10 (quoting Suetholz Decl.,
ECF 98-3, ¶¶ 26, 27). Mr. Suetholz’s declaration further states that “[i]n return for the
IBT hiring him to do the case regarding police interference, [Mr. Schwartz] stated to
[him] that he was not going to pursue fees in this matter.” Suetholz Decl., ECF 98-3,
¶ 27.
On January 13, 2026, Mr. Schwartz submitted a second supplemental declaration
in reply, substantially reiterating his prior positions and asserting that he “never
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 11 of 34 PageID
#: <pageID>

12
waived fees in return for pursuing a lawsuit vs. Amazon” and that any discussions
regarding “a way to get paid for [his] work on the election case without a fee award”
never concluded. See Schwartz Second Suppl. Decl., ECF 101, ¶¶ 9–10. To this
declaration, he attached copies of the ALU’s 2022 and 2023 LM-2 forms, which reported
that the union received over $857,000 and $669,000 in 2022 and 2023, respectively; Mr.
Schwartz asserts that “[t]hat money stopped coming in because of the undemocratic
activities of” Defendant Smalls. Id. ¶ 12; see also 2022 ALU LM-2, ECF 101-3, at ECF p. 4
(representing that, in 2022, the union took in $40 in dues and agency fees, $15,151 from
the sale of supplies, and $842,218 in other receipts, for a total of $857,409); 2023 ALU
LM-2, ECF 101-4, at ECF p. 4 (reporting $735 in dues and agency fees, $53,013 for sale of
supplies, and $616,150 in other receipts, for a total of $669,898 in 2023).6
DISCUSSION
I. 	Applicable Law
It is well settled that courts generally do not award attorney’s fees to a prevailing
party absent statutory or contractual authority. See Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 602 (2001); Amalgamated Clothing &
Textile Workers Union v. Wal-Mart Stores, Inc. (“ACTWU”), 54 F.3d 69, 71 (2d Cir. 1995).
Rather, the default “American” rule is that parties pay their own litigation expenses. See
Sierra Club v. U.S. Army Corps of Eng’rs, 776 F.2d 383, 390 (2d Cir. 1985).
6 Mr. Schwartz did not append the ALU’s 2024 LM-2 form, but the Court was able to
locate it through a search of the Department of Labor’s Office of Labor-Management Standards’
public records. See generally Schwartz Second Suppl. Decl., ECF 101; see ALU 2024 LM-2 Form,
https://olmsapps.dol.gov/query/orgReport.do?rptId=918175&rptForm=LM2Form
[https://perma.cc/HM58-4UEX] (noting $0 in dues and agency fees and $12,115 in other
receipts, for a total of $12,115 for the period of January 1, 2024, through June 17, 2024, and $0 in
total assets at the end of the reporting period); see also Wells Fargo Bank, N.A. v. Wrights Mill
Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (observing that courts may take judicial
notice of “documents retrieved from official government websites” and collecting cases).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 12 of 34 PageID
#: <pageID>

13
One exception to the default rule is the common benefit doctrine, which allows
“a prevailing party to obtain reimbursement” of attorney’s fees “‘where the litigation
has conferred a substantial benefit on the members of an ascertainable class,’ and where
it is possible to spread the costs proportionately among the members of the class.”
ACTWU, 54 F.3d at 71 (quoting Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 392 (1970)).
Whether a plaintiff merits an award of attorney’s fees is a question of fact within the
district court’s discretion, and requires a balancing of interests. Rodonich v. Senyshyn, 52
F.3d 28, 33 (2d Cir. 1995). Specifically, the court should “appraise the need for and
potential benefits derived from the attorney’s services, based on the judge’s personal
observation of counsel’s performance and [her] intimate familiarity with the case.”
Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Loc. 10, I.L.G.W.U., 749 F.2d 1000,
1004 (2d Cir. 1984).
The LMRDA does not expressly provide for fee shifting for claims brought under
Title I, such as Plaintiffs’ claims here. See generally 29 U.S.C. § 411 et seq. Accordingly,
motions for attorney’s fees in cases brought under Title I of the LMRDA are often
evaluated under the common benefit doctrine. See Hall v. Cole, 412 U.S. 1, 5–7 (1973);
Rodonich, 52 F.3d at 31–33. It is not necessary for the court to find that the LMRDA was
violated to find that a party is entitled to attorney’s fees under a common benefit theory.
Stokely v. George, No. 05-CV-2051 (GBD) (HBP), 2006 WL 2807161, at *2 (S.D.N.Y. Sept.
28, 2006). Rather, the common benefit rule is an equitable doctrine, seeking to avoid the
unjust enrichment of individuals who obtain a benefit of a lawsuit without contributing
to its cost. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); ACTWU, 54 F.3d at 71. It
is undergirded by a “policy of encouraging lawsuits to vindicate important rights that
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 13 of 34 PageID
#: <pageID>

14
otherwise might not be vindicated.” New Leadership Comm. v. Davidson, 23 F. Supp. 2d
301, 305 (E.D.N.Y. 1998) (citing Rodonich, 52 F.3d at 32–33).
A party “prevails” for the purpose of an attorney’s fee award when “a court
conclusively resolves a claim by granting enduring judicial relief on the merits that
materially alters the legal relationship between the parties,” and such relief is “judicially
sanctioned.” Lackey v. Stinnie, 604 U.S. 192, 203–04 (2025); see Perez v. Westchester County
Dep’t of Corrections, 587 F.3d 143, 149 (2d Cir. 2009) (holding that a party prevails when
it achieves “some material alteration of the legal relationship between them and their
adversaries, and that change bears a judicial imprimatur” (quotation marks omitted)
(emphasis in original)); see also Rosario, 749 F.2d at 1005 (applying the standards for
awarding attorney’s fees under 42 U.S.C. § 1988, in which context Lackey and Perez were
decided, to LMRDA Title I).
The “material alteration” and “judicial sanction” elements overlap somewhat.
The Second Circuit has held that an alteration in the legal relationship is “material” if
“the plaintiff [is] entitled to enforce a judgment, consent decree, or settlement against
the defendant.” DiMartile v. Hochul, 80 F.4th 443, 451 (2d Cir. 2023) (quotation marks
omitted). While the Supreme Court has rejected the idea that a party prevails if the
litigation brings about a voluntary change in the defendant’s behavior (the “catalyst
theory”), it has affirmed that litigation resulting in an enforceable consent decree bears
the requisite “judicial imprimatur” to render the plaintiff a prevailing party. Buckhannon
Bd. & Care Home, 532 U.S. at 601, 605, 610 (rejecting the catalyst theory); see id. at 604
(noting that “we have held that settlement agreements enforced through a consent
decree may serve as the basis for an award of attorney’s fees”); see also Lackey, 604 U.S.
at 207 (affirming the latter view).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 14 of 34 PageID
#: <pageID>

15
The prevailing party must have conferred a “substantial benefit” on “members of
an ascertainable class.” ACTWU, 54 F.3d at 71 (quotation marks omitted). A substantial
benefit is one that is “‘more than technical in its consequence’” and which
“‘accomplishes a result which corrects or prevents an abuse’” that would prejudice the
class members’ “‘essential right[s].’” Cohen v. LyondellBasell Indus. N.V., 492 F. Supp. 3d
14, 17 (E.D.N.Y. 2020) (quoting Mills, 396 U.S. at 396). In the context of LMRDA claims,
the benefit “must be grounded in something conferred upon the membership, not just
upon individuals.” Doyle v. Turner, 90 F. Supp. 2d 311, 320 (S.D.N.Y. 2000) (“Doyle II”),
aff’d sub nom. Hughley v. Loc. 1199, Drug, Hosp. & Health Care Emps. Union, RWDSU, 231
F.3d 889 (2d Cir. 2000); see Hall, 412 U.S. at 8 (holding that when a union member
vindicates his personal free-speech rights under the LMRDA, the resulting
“preservation of union democracy” is a common benefit on the union members). That
said, there is no requirement that all members benefit equally or near equally for the
common benefit doctrine to apply. See Ramey v. Dist. 141, Int’l Assoc. of Machinists &
Aerospace Workers, No. 99-CV-4341 (BMC) (RML), 2010 WL 3619708, at *9 (E.D.N.Y. Sept.
10, 2010). The rank-and-file members of a union are a paradigmatic example of an
ascertainable class. See Rodonich, 52 F.3d at 35.
In the union context, courts generally find that costs can be spread
proportionately among the class when the fees are reimbursable by the union treasury.
See id.; Doyle II, 90 F. Supp. 2d at 319. However, if the costs cannot be proportionately
spread — for example, if one member would benefit disproportionately, or the costs
would be borne by those other than the beneficiaries of the litigation — courts will deny
the requested fees. See, e.g., Ramey, 2010 WL 3619708, at *10 (following remand from the
Second Circuit on this issue, reiterating the court’s prior finding that attorney’s fees
related to litigation concerning an award of money damages for individual plaintiffs
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 15 of 34 PageID
#: <pageID>

16
should be denied because those costs would not be “equitably spread” across “those
who have benefitted from” the litigation); Fase v. Seafarers Welfare & Pension Plan, 79
F.R.D. 363, 365 (E.D.N.Y. 1978) (denying an award of an attorney’s fee against a
defendant pension fund where “the cost would be spread among all of the pensioners,
in the absence . . . of a common benefit to all such pensioners”); Writers Guild of Am., W.,
Inc. v. F.C.C., 423 F. Supp. 1064, 1160–61 (C.D. Cal. 1976) (denying a fee award when
“the primary beneficiaries” of the litigation “are the viewing public at large,” but costs
would be borne by television network shareholders), vacated on other grounds sub nom.
Writers Guild of Am., W., Inc. v. Am. Broad. Co., 609 F.2d 355 (9th Cir. 1979). For this same
reason, individual union members cannot be ordered to pay attorney’s fees under the
common benefit doctrine. See Ferreira v. Loc. No. 145 Serv. Trades, Chauffeurs, Salesmen &
Helpers, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. (Teamsters Loc.
Union No. 145), 633 F. Supp. 133, 135 (D. Conn. 1985) (collecting cases).
II. Analysis
Plaintiffs’ motion for attorney’s fees argues that counsel is entitled to fees
because (1) the consent order and All Writs Act decisions rendered Plaintiffs successful
litigants, and this success “benefitted the entire membership of the ALU,” and (2) the
fees sought are reasonable. Schwartz Decl., ECF 92–1, ¶¶ 2, 3; see generally Pls. Mem.,
ECF 92-3; Schwartz Suppl. Decl., ECF 97; see also Reply Mem., ECF 96. Plaintiffs further
argue that any fee award should be payable by ALU-IBT Local 1, citing the affiliation
agreement. See Pls. Mem., ECF 92-3, at 8; Schwartz Suppl. Decl., ECF 97, ¶ 9.
Defendants counter that (1) Plaintiffs were not prevailing parties under the
common benefit doctrine because they did not maintain their initial claims; (2) counsel’s
motion is deficient because he did not provide the Court a copy of his retainer
agreement with Plaintiffs, and his retainer “cards” are non-compliant with state
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 16 of 34 PageID
#: <pageID>

17
regulatory requirements; and (3) it would be inequitable “to raid the union treasury to
pay legal fees.” Defs. Mem., ECF 95, at 9 (capitalization modified); see generally id.; Defs.
Suppl. Opp’n, ECF 98.
For the reasons discussed below, the Court finds that while Plaintiffs were
successful litigants, a fee award is not available under the common benefit doctrine
because the costs of the litigation cannot be spread proportionately across the
beneficiaries of the litigation.7
A. Plaintiffs Were Prevailing Parties
For the purposes of considering the application of the common benefit doctrine,
the Court finds that Plaintiffs were successful litigants because the instant litigation
resulted in an enforceable consent order that effected Plaintiffs’ desired change: a
democratic union election.
As discussed above, a party “prevails” when it achieves “some material
alteration of the legal relationship between them and their adversaries, and that change
bears a judicial imprimatur.” Perez, 587 F.3d at 149 (quotation marks and emphasis
omitted). Courts in the Second Circuit have observed that a litigation that culminates in
an enforceable settlement or consent decree achieves exactly this. For example, in
Roberson v. Giuliani, the parties settled § 1983 claims through a private agreement: the
government defendants disclaimed liability but agreed to make certain policy changes
responsive to the plaintiffs’ demands. 346 F.3d 75, 77–78 (2d Cir. 2003). The parties
7 As mentioned, because individual union officers cannot be ordered to pay attorney’s
fees under the common benefit doctrine, the Court respectfully recommends denying the
requested fee award as to Defendant Smalls on this ground alone. See Ferreira v. Loc. No. 145
Serv. Trades, Chauffeurs, Salesmen & Helpers, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen &
Helpers of Am. (Teamsters Loc. Union No. 145), 633 F. Supp. 133, 135 (D. Conn. 1985).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 17 of 34 PageID
#: <pageID>

18
stipulated to dismissal, and the district court entered an order “retain[ing] jurisdiction
over the settlement agreement for enforcement purposes.” Id. at 78 (quotation marks
omitted). The district court denied the plaintiffs’ motion for attorney’s fees, holding that
its order retaining jurisdiction was not a sufficient “judicial sanctioning of the alteration
of [the parties’] legal relationship.” Id. at 80 (quotation marks omitted). The Circuit
disagreed. It held that “when the district court retained jurisdiction [to enforce the
settlement agreement,] it gave judicial sanction to a change in the legal relationship of
the parties.” Id. at 83. “Consent decrees are enforceable in federal court because they are
orders of the court; the Agreement is enforceable in federal court because a violation of
the Agreement is a violation of the court’s dismissal Order.” Id.
Here, similarly, the consent order achieved a material alteration in the legal
relationship between Plaintiffs and Defendants because it forced each side to abandon
its litigation position, “to work together to achieve their common end,” to hold an
election, and to discuss amending the union’s constitution. Consent Order, ECF 46,
¶¶ 1–2, 18; see also Pls. Mem., ECF 92-3, at 1–5. It also set forth a procedure for
appointing a neutral monitor to supervise this process. Consent Order, ECF 46, ¶¶ 15–
16. The election that was brought about by the processes laid out in the consent order
further enabled the individuals who had brought the suit to assume officer positions in
the Union — a drastic change in the parties’ “legal relationship.” Roberson, 346 F.3d at
80; see also New Leadership Comm., 23 F. Supp. 2d at 303 (adopting report and
recommendation finding that the provisions of a settlement between rival union
factions “generally benefitted the union membership” because they “reaffirm[ed] the
commitment that union affairs would be conducted in accordance with established
procedures; that union elections would be conducted in a fair and informed manner;
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 18 of 34 PageID
#: <pageID>

19
and that dissenting union members would not be subjected to disciplinary action or
retaliation for exercising their rights to free speech”).
More importantly, when Judge Donnelly entered the consent order, Plaintiffs
became “entitled to enforce” it against Defendants, achieving the requisite judicial
imprimatur. DiMartile, 80 F.4th at 451 (quotation marks omitted). And Plaintiffs did
invoke their rights under the order. On April 14, 2024, Plaintiffs submitted a letter
opposing Defendants’ request for a conference regarding the intervention petitions,
which Plaintiffs characterized as efforts to undermine the consent order. Pls. Letter, ECF
61; see Defs. Letter, ECF 60. Later, Plaintiffs’ All Writs Act motion relied on the order’s
terms for authority. Mem. in Supp. of All Writs Act Mot., ECF 62-7, at 2 (seeking the
court’s assistance “to assure that the terms of the Consent Order are fully carried out”).
The court also enforced the consent order on its own. For example, in an April
25, 2024 motion hearing, Judge Donnelly directed the parties to bring disputes about the
election process to the neutral monitor, not the court, per the consent order. Apr. 25,
2024 ECF Min. Entry & Order; see also May 9, 2024 ECF Order (reminding the parties
that they are bound to the terms of the consent order); June 21, 2024 ECF Order
(denying a third party’s motion for a preliminary injunction because, inter alia, the
motion conflicted with the consent order).
Defendants’ argument that Plaintiffs could not be successful because this
litigation “[a]t most” settled the party’s differences, rather than changing their legal
relationship, misses the mark. Defs. Mem., ECF 95, at 1–2; see also Defs. Suppl. Opp’n,
ECF 98, at 2, 4. While Defendants are correct that the Supreme Court rejected the
“catalyst theory” in Buckhannon Board & Care Home, Defendants ignore the Buckhannon
court’s holding that “enforceable judgments on the merits and court-ordered consent
decrees create the material alteration of the legal relationship of the parties necessary to
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 19 of 34 PageID
#: <pageID>

20
permit an award of attorney’s fees.” 532 U.S. at 604 (emphasis added) (quotation marks
omitted). The Supreme Court in Lackey v. Stinnie recently affirmed this view, even as it
held that winning a preliminary injunction did not confer prevailing party status,
observing that “[t]he availability of fees following the entry of a court-ordered consent
decree is fully consistent with the rule we announce today.” 604 U.S. at 207; see Defs.
Mem., ECF 95, at 5–6 (citing Lackey for the proposition that “the settlement agreement
entered as a consent order did not reflect at all that Mr. Schwartz successfully
maintained the claims he brought”). Moreover, the position advanced by Defendants’
citation to Lackey is not supported by Second Circuit case law. It is not necessary that the
consent order reflect that Plaintiffs successfully maintained or won any of their initial
claims for Plaintiffs to be prevailing parties. See, e.g., Rodonich, 52 F.3d at 33 (rejecting
the proposition that “a finding of common benefit turns on whether or not equitable
relief has been granted”); Roberson, 346 F.3d at 77–78, 82–84 (observing that a settlement
agreement where the defendants disclaimed any liability was sufficient to render the
plaintiffs the prevailing parties); Stokely, 2006 WL 2807161, at *2 (observing that the
court need not find that the LMRDA was actually violated in order to award attorney’s
fees).
For the above reasons, the Court recommends finding that Plaintiffs were
prevailing parties for purposes of evaluating the pending fee award application.
B. Whether the Consent Order Conferred a Common Benefit Upon Members of
an Ascertainable Class
As set forth above, the consent order laid out the terms by which a free and fair
union election would be held. Accordingly, all members of the ALU benefitted from the
consent order.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 20 of 34 PageID
#: <pageID>

21
Under the common benefit doctrine, prevailing parties may be awarded
attorney’s fees where “the litigation has conferred a substantial benefit on the members
of an ascertainable class.” ACTWU, 54 F.3d at 71 (quotation marks omitted). Plaintiffs
rely on Hall v. Cole and its Second Circuit progeny to illustrate this rule. Pls. Mem., ECF
92-3, at 3–5. In Hall, the Supreme Court found that a union member who had sued to
vindicate his free speech rights under Title I of the LMRDA “contribute[d] to the
preservation of union democracy” and therefore “necessarily rendered a substantial
service to his union as an institution and to all of its members.” 412 U.S. at 8. In
Rodonich, another union free speech case, the Second Circuit held that the plaintiff
achieved a common benefit, even though he won money damages and not injunctive
relief, because the award “serve[s] as a check on the abuse of power and can promote
the exercise of democratic rights by the rank and file.” 52 F.3d at 33.
Here, Plaintiffs achieved a common benefit in winning an enforceable consent
order that set forth a process for a democratic union election and constitutional
amendments. The promotion of free and fair election procedures is core to the rights
guaranteed by the LMRDA. See 29 U.S.C. § 411(a)(1) (“Every member of a labor
organization shall have equal rights and privileges within such organization to
nominate candidates [and] to vote in elections or referendums of the labor organization
. . . .”); Hall, 412 U.S. at 7–8 (observing that Title I of the LMRDA was “specifically
designed to promote the ‘full and active participation by the rank and file in the affairs
of the union’” (quoting Am. Fed’n of Musicians v. Wittstein, 379 U.S. 171, 182–83 (1964));
Rodonich, 53 F.3d at 32 (noting that the LMRDA Bill of Rights “effectively superimposes
the core values of democratic governance . . . onto union operations”); cf. Donovan v.
CSEA Loc. Union 1000, 784 F.2d 98, 104 (2d Cir. 1986) (stating, in the context of an
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 21 of 34 PageID
#: <pageID>

22
LMRDA Title IV action, that “the benefits from this successful litigation are not limited
to the supervised rerun of one isolated election, but will continue to be felt in future
[union] elections”). The existence of the consent order “deterr[ed] the union from
denying members their due process procedural rights guaranteed by § 101 of LMRDA”
and will continue to “encourag[e] union members to enforce those rights through
§ 102.” Rosario, 749 F.3d at 1006; see Apr. 25, 2024 ECF Min. Entry (reminding the parties
that they are bound by the terms of the consent order and must appeal to the neutral
monitor for resolving disputes, following Defendants’ submission of a letter requesting
clarification on how the then-pending motions to intervene might affect the terms of the
consent order and their obligations under Title I of the LMRDA). Future members of the
ALU, now the ALU-IBT Local 1, will continue to benefit from Plaintiffs’ efforts to allow
“the members . . . to nominate candidates for office,” to create “a free and open
opportunity to campaign,” and to ensure “5,000 members received ballots giving them
a voice in deciding who was going to lead the union.” Pls. Mem., ECF 92-3, at 2–3.
Accordingly, the Court recommends finding that Plaintiffs achieved a common
benefit upon an ascertainable class of union members — that is, members of what is
now the ALU-IBT Local 1.
C. Whether Costs May Be Spread Proportionately
Notwithstanding the foregoing findings, because the costs of the requested
attorney’s fees cannot be spread proportionately among the members of the ALU-IBT
Local 1, the Court respectfully recommends denying Plaintiffs’ motion for attorney’s
fees.
Ordinarily, in LMRDA cases awarding fees under the common benefit doctrine,
whether costs can be spread proportionately is not in dispute, because fees are
reimbursable by the union treasury. See, e.g., Rodonich, 52 F.3d at 35. As the Second
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 22 of 34 PageID
#: <pageID>

23
Circuit observed in Rodonich, in cases involving a union, “(1) there is an ascertainable
class of beneficiaries (the union membership), and (2) the fees are sought from that class
(via the union treasury).” Id. at 35 (emphasis added). However, in rare cases, courts
have denied attorney’s fee requests where fees were not proportionately shareable.
Doyle, a case also arising out of “rival factions of union officials over control of the
union,” is instructive on the limits of assuming the union treasury is available to pay the
costs of litigation. Doyle v. Kamenkowitz (“Doyle I”), 114 F.3d 371, 373 (2d Cir. 1997).
In Doyle, defendants, former officers of a labor union, sought to recover
attorney’s fees after successfully defeating the union plaintiffs’ claims.8 See id.; Doyle II,
90 F. Supp. 2d at 313. Finding that the statutory fee-shifting provision of § 501(b) of the
LMRDA did not create “a right of reimbursement against a union that is unwilling to
pay,” the Second Circuit reversed and remanded the case to the district court to assess
whether a fee award was justified “on other grounds or rationales,” such as the
common benefit doctrine. Doyle I, 114 F.3d at 375, 378–79.
The district court, on remand, held that an award based upon general principles
of equity or a common benefit analysis was not warranted. Doyle II, 90 F. Supp. 2d at
8 Specifically, the Doyle plaintiffs — individual union members and the union itself —
had brought claims under § 501(a) of the LMRDA, the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and the New York Labor Law § 720 et seq.
They alleged that:
the defendant officers had breached their fiduciary duties to the Union by
embezzling and converting Union funds and other assets, and had ‘stolen’ the
Union’s 1984 elections (and unsuccessfully tried to steal the 1986 elections as
well) by stuffing ballot boxes; destroying valid ballots; denying Union members
the right to vote; threatening, assaulting, and physically preventing members
from exercising their rights under sections 7 and 8 of the National Labor
Relations Act, 29 U.S.C. §§ 157, 158; and covering up their illegal acts through
mail and wire fraud.
Doyle I, 114 F.3d at 373.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 23 of 34 PageID
#: <pageID>

24
318. The court found, first, that the union officers’ vindication of the claims against
them did not inure a benefit to the union membership at large, and second, that their
actions failed to “create or preserve the Union treasury fund,” such that the costs of
litigation could be shifted under traditional common fund principles. Id. at 321
(quotation marks omitted); see also Cohen v. LyondellBasell Inds. N.V., No. 19-CV-2622
(EK) (SMG), 2020 WL 5097773, at *3 (E.D.N.Y. June 23, 2020) (observing that the Second
Circuit applies the common fund doctrine broadly, incorporating the common benefit
doctrine), report and recommendation adopted as modified, 492 F. Supp. 3d 14 (E.D.N.Y.
2020).
Here, Plaintiffs do not, and cannot, argue that their actions in obtaining the
consent order “preserved or increased a common fund.”9 Doyle II, 90 F. Supp. 2d at 321.
Indeed, it is not clear whether there is a common fund to tap at all. Unlike many of the
other union democracy cases where the attorney’s fee award was readily payable out of
the union treasury — a common fund created by members’ proportionate contributions
of their dues — here, the ALU has agreed not to “charge members dues until they
obtained a collective bargaining agreement.” Mirer Decl., ECF 98-1, ¶ 9; see Defs. Mem.
in Opp’n, ECF 95, at 9 (asserting that absent dues, the union has relied on public
support); see also ALU 2022 & 2023 LM-2 Forms, ECF 101-3, 101-4 (reporting that the
Union took in a total of $775 in dues and agency fees across 2022 and 2023, and almost
9 Plaintiffs rely on the “general principle that a trust estate must bear the expenses of
its administration, even if that administration results from the efforts of non-trustees,”
citing Trustees of the Internal Improvement Fund v. Greenough, 105 U.S. 527 (1881), for the
conclusion that they are entitled to reimbursement. Pls. Mem., ECF 92–3, at 2. Though the
Hall court cites Greenough with approval for the proposition that the common benefit
doctrine originates in common fund cases, see 412 U.S. at 5 n.7, it is not apparent how the
implicit analogy Plaintiffs draw between the ALU and a trust estate would operate to
compel the result urged by Plaintiffs.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 24 of 34 PageID
#: <pageID>

25
$1.5 million in “other receipts,” but had $118,463 in net assets at the end of 2022 and
negative $48,006 in net assets at the end of 2023); cf. ALU 2024 LM-2 Form,
https://olmsapps.dol.gov/query/orgReport.do?rptId=918175&rptForm=LM2Form
[https://perma.cc/HM58-4UEX] (reporting $0 in dues, $12,115 in other receipts, and $0
in net assets by June 17, 2024). Defendants assert that without the support of the
Teamsters, following the unions’ affiliation, the ALU — now ALU-IBT Local 1 — would
not have been able to pay for election-related mailings. See Defs. Mem. in Opp’n, ECF
95, at 9. The declaration of David Suetholz, the Teamsters’ general counsel, avers that to
his understanding, “the ALU . . . does not exist anymore and has no assets.” Suetholz
Decl., ECF 98-3, ¶ 24; see also Palmer Decl., ECF 98-2, ¶ 46. Plaintiffs’ counsel’s assertions
regarding the ALU’s receipts for the calendar years 2022 and 2023 — prior to the June
2024 affiliation — are entirely consistent with Mr. Suetholz’s statement about the
present state of the ALU: in fact, counsel concedes that public contributions “stopped
coming in” following the events underlying this lawsuit. Schwartz Second Suppl. Decl.,
ECF 101, ¶ 12; see generally ALU 2022 & 2023 LM-2 Forms, ECF 101-3, 101-4.
Taking these facts together, it is not at all clear that “it is possible to spread the
costs proportionately among the members of the class” that reaped the benefits of
Plaintiffs’ litigation: the members of the ALU. ACTWU, 54 F.3d at 71. Courts in the
Second Circuit have cautioned against this type of outcome. In Fase v. Seafarers Welfare &
Pension Plan, an ERISA case, the Honorable Thomas C. Platt denied an attorney’s fee
award where an award — payable by the defendant pension fund — would spread the
costs of the litigation among all pensioner contributors to the fund, where only the
individual plaintiff benefitted from the lawsuit. 79 F.R.D. at 365. In Ramey, on remand
from the Second Circuit, the Honorable Brian M. Cogan likewise emphasized that “[t]he
purpose of an award of attorneys’ fees is not to punish, but to equitably spread the cost
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 25 of 34 PageID
#: <pageID>

26
of litigation across those who have benefitted from it.” 2010 WL 3619708, at *10; cf. id.
(observing that, where attorneys’ fees had previously been awarded in connection with
an injunction, but counsel sought additional attorney’s fees payable by the union
related to an award of individual damages, “increasing the detriment to other union
members is thus not going to bestow a ‘substantial’ additional benefit”).
Framed another way, although there may be an ascertainable class of
beneficiaries here, the fees counsel seeks are not “sought from that class” of
beneficiaries. Rodonich, 52 F.3d at 35 (emphasis added). Rather, Mr. Schwartz expressly
seeks fees from the ALU-IBT Local 1, which is now a chartered Teamsters local and
wholly financially supported by the Teamsters “until such a time as ALU-IBT Local 1
has reached its first contract with Amazon and begun collecting dues from its
members.” Affiliation Agreement, ECF 97, at ECF p. 12 (§ III, ¶ 4). If counsel’s fee
motion were granted, the Teamsters membership writ large would end up footing the
bill for this lawsuit, without enjoying any of the attendant benefits of the underlying
litigation. See Burden Decl., ECF 98-4, ¶¶ 4–5 (stating that the Teamsters provides
funding to the ALU-IBT Local 1 as necessary under the affiliation agreement); see also
Defs. Mem., ECF 95, at 9; cf. Defs. Suppl. Opp’n, ECF 98, at 11.
Here, perhaps in acknowledgment that even were he awarded fees, he could not
recover from the ALU given that entity’s present lack of assets, Mr. Schwartz urges the
Court to find that any fee award be “made payable by ALU-IBT Local 1.” Schwartz Decl.,
ECF 92-1, ¶ 10; see Pls. Mem., ECF 92-3, at 1, 8. But Mr. Schwartz does not offer any
authority in support of the proposition that the ALU-IBT Local 1 should be liable for the
debts of its predecessor. Cf. Oct. 21, 2025 ECF Order (directing Mr. Schwartz to provide
such authority). Rather, he asserts that “the Amazon Labor Union affiliated with the
Teamsters Union before the election occurred” and that the ALU “did not dissolve, nor
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 26 of 34 PageID
#: <pageID>

27
did it change its constitution, nor was there a ‘new’ entity.” Schwartz Suppl. Decl., ECF
97, ¶ 9. At bottom, he asserts that the sole effect of the affiliation agreement on the ALU
was to “change its name to ALU-IBT Local 1,” without engaging with Defendants’
arguments that the affiliation agreement precludes the IBT from liability for ALU debts
incurred prior to the affiliation, or analyzing how the Teamsters’ membership writ large
could somehow fall within the group upon whom a common benefit was conferred. Id.;
see Defs. Mem., ECF 95, at 9; see also Suetholz Decl., ECF 98-3, ¶¶ 20–21, 24; Affiliation
Agreement, ECF 97, at ECF p. 13 (§ VIII, Assets and Liabilities); id. at ECF p. 14 (calling
attention to a provision stating that “ALU-IBT Local 1 is the successor in interest to
ALU under this Agreement” in the context of NLRB certification). On the highly unique
facts of this case, it would not serve the equitable principles underlying the common
benefit doctrine to compel the members of what is now the parent union to pay the
costs of a litigation that only benefitted members of what was, at the time of the
litigation, a new, independent union.
The Court is not convinced by Mr. Schwartz’s conclusory assertions that the
ALU-IBT Local 1 is or should be responsible for attorney’s fees allegedly payable by the
ALU. Traditional common law principles dictate that successor liability attaches where
the acquiring entity “expressly or impliedly assumed the predecessor’s tort liability,
there was a consolidation or merger of seller and purchaser, the [acquiring entity] was a
mere continuation of the [acquired entity], or the transaction is entered into
fraudulently to escape such obligations.” New York v. Nat’l Serv. Indus., Inc., 460 F.3d
201, 209 (2d Cir. 2006) (quotation marks and numeration omitted). The affiliation
agreement here expressly disclaims liability for the respective parties’ prior debts, and,
as mentioned, Mr. Schwartz has offered no authority that would support a finding of
successor liability for consolidation, continuation, or fraud, much less in the common
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 27 of 34 PageID
#: <pageID>

28
benefit fund context. See Affiliation Agreement, ECF 97, at ECF p. 13 (§ VIII, Assets and
Liabilities). Moreover, neither Mr. Schwartz nor defense counsel offers any authority,
and the Court can find none, applying these principles to inter-union affiliation
agreements, as opposed to corporate mergers. But cf. Rodonich v. House Wreckers Union
Loc. 95 of Laborers’ Int’l Union, 817 F.2d 967, 973 (2d Cir. 1987) (announcing rule that
international union may be liable for unlawful acts of affiliate if unlawful act was
ratified “with full knowledge” of the affiliate’s unlawful conduct). Nor does Mr.
Schwartz offer authority to explain why the NLRB’s treatment of the ALU-IBT Local 1
as the successor in interest of the ALU for the purpose of union certification should impact
the Court’s analysis of the applicability of the common benefit fund doctrine. See
Schwartz Second Suppl. Decl., ECF 101, ¶ 8. In the absence of any authority on this
point, the Court recommends against awarding any attorney’s fee made payable by the
ALU-IBT Local 1, as much as an order would be, in effect, an order against the IBT
itself.
The requested fee award would not spread costs of the litigation proportionately
among members of the ALU. Rather, it would shift those costs to a group of union
members who did not get the benefits of the litigation.10 Accordingly, the Court
recommends denying Plaintiffs’ attorney’s fee motion in its entirety.
10 The Court notes that is not necessary that the litigation create a common fund in order
to award fees out of it. See Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 392 (1970) (observing that
“[t]he fact that this suit has not yet produced, and may never produce, a monetary recovery
from which the fees could be paid does not preclude an award based on this rationale”); see also
id. at 392–95 (collecting cases). The key obstacle here is not the absence of common fund at the
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 28 of 34 PageID
#: <pageID>

29
D. Other Equitable Considerations
The Court is mindful that “apprais[ing] the need for and potential benefits
derived from the attorney’s services” in this context will often weigh in favor of a fee
award. Rosario, 749 F.2d at 1004. Specifically, the LMRDA rights at issue “otherwise
might not be vindicated” if attorneys were unwilling to take on dissident union
members’ cases absent the possibility of fee-shifting, particularly in cases where, as
here, a newly formed union has not yet established a central treasury. New Leadership
Comm., 23 F. Supp. 2d at 305; see also Rodonich, 52 F.3d at 32–33. These rights are no less
important, nor less in need of protection, when they derive from a nascent union’s
growing pains rather than an established union’s institutional retrenchment. Given
these concerns, the Court does not endorse the view that fee-shifting should never be
available when the common benefit of a litigation does not result in, or cannot be traced
to, a common fund. However, here, where the costs of litigation cannot “be shifted with
some exactitude to those benefitting,” a fee award is not fair or justifiable under existing
doctrine. Boeing, 444 U.S. at 479 (quotation marks omitted).
The Court is also mindful that the purpose of the common benefit doctrine is to
avoid unjustly enriching individuals who benefit from a lawsuit without contributing to
its cost. See id. at 478; ACTWU, 54 F.3d at 71. This concern is particularly acute here,
where the individuals who brought the case as Plaintiffs are today officers of the
present juncture, but rather that it is not “possible to spread the costs proportionately among
the members of the class” that benefitted from the litigation — members of the ALU — insofar
as Mr. Schwartz seeks a fee award payable by the ALU-IBT Local 1, an entity that is financially
supported by the Teamsters. ACTWU, 54 F.3d at 71; see Rodonich v. Senyshyn, 52 F.3d 28, 35 (2d
Cir. 1995); see also ALU 2022 & 2023 LM-2 Forms, ECF 101-3, 101-4; ALU 2024 LM-2 Form,
https://olmsapps.dol.gov/query/orgReport.do?rptId=918175&rptForm=LM2Form
[https://perma.cc/HM58-4UEX] (reporting that the Union took in $0 in dues in 2024 through
June 17, 2024).
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 29 of 34 PageID
#: <pageID>

30
Defendant Union because of the election brought about by the consent order. Still, that
Plaintiffs ultimately obtained “a direct benefit not shared by the rest of the
membership” was not a direct outcome of the litigation — it was the result of an
election — and does not change the analysis above. Rodonich, 52 F.3d at 35.
Notwithstanding these important considerations, the Court’s “intimate
familiarity with the case” and the lead Plaintiffs gives rise to another significant concern
about the pending fee application. Id. at 33 (quotation marks omitted). On the present
record, is not at all clear that Plaintiffs understood that their attorney would seek a
substantial fee award from their nascent union in the event they prevailed. Indeed,
Plaintiffs’ counsel’s own declarations as to his method for gathering Plaintiffs and his
statements to them regarding his fees seriously call into question whether Plaintiffs
were fully and fairly informed about the possible fee consequences of this litigation. Mr.
Schwartz represents that lead plaintiffs, not counsel, circulated retainer cards among
potential plaintiffs, then “entered those individuals[’ names] on an Excel spreadsheet,”
which was then “transmitted to” counsel, and that counsel “presently cannot locate” the
originals of the retainer cards. Schwartz Suppl. Decl., ECF 97, ¶ 2. The “retainer cards”
in question are captioned “Plaintiff Interest Form,” where signatories agree that they
“would like to be named as a plaintiff in the legal complaint against the current
leadership of the Amazon Labor Union for their refusal to hold scheduled elections for
officer positions.” Id., at ECF p. 5 (“Ex. A”). As a general rule, in New York, an
attorney’s letter of engagement or retainer agreement must explain “the scope of the
legal services to be provided” and the “attorney’s fees to be charged.” N.Y. Comp.
Codes R. & Regs. tit. 22 § 1215.1(b). But Mr. Schwartz avers that he “simply told [lead
Plaintiffs Spence, Sylla, Kathleen Cole, and Sultana Hossain] that I would do the case
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 30 of 34 PageID
#: <pageID>

31
without charging them a fee, and that I would seek attorney’s fees from the union if we
were successful.” Schwartz Suppl. Decl., ECF 97, ¶ 3.
Contrary to Defendants’ arguments, these deficiencies do not necessarily scuttle
a fee award ex ante, particularly in the fee-shifting context. See Marion S. Mishkin L. Off.
v. Lopalo, 767 F.3d 144, 148 (2d Cir. 2014) (restating the rule that an attorney’s fee award
requires only that it be supported by “contemporaneous time records . . . specify[ing],
for each attorney, the date, the hours expended, and the nature of the work done”
(quotation marks omitted)); Zhang v. Zhang, No. 16-CV-4013 (LGS) (SLC), 2021 WL
1154084, at *4 (S.D.N.Y. Mar. 26, 2021) (rejecting the plaintiff’s argument that
defendants’ failure to submit a retainer agreement precluded a fee award); cf. Popal v.
Slovis, No. 12-CV-3916 (LGS), 2015 WL 10687614, at *7 (S.D.N.Y. Apr. 28, 2015)
(applying New York state law; observing that an attorney may recover his fee in
quantum meruit even if his retainer was deficient).
However, counsel’s representations raise considerable questions about whether
the 80-plus named Plaintiffs in this case fully understood their role in this litigation and
the potential consequences of hiring counsel, a concern raised by Defendants in the
declaration of Derrick Palmer. See generally Palmer Decl., ECF 98-2; see also Defs. Suppl.
Opp’n, ECF 98, at 9 (speculating about the possibility of “ghost plaintiffs”). While the
Court does not credit hearsay assertions contained in Mr. Palmer’s declaration, the
Court is doubtful that the process counsel described here would ensure Plaintiffs knew
about “the scope of the legal services to be provided” or the “attorney’s fees to be
charged.” N.Y. Comp. Codes R. & Regs. tit. 22, § 1215.1(b).
In addition, given the Court’s familiarity with the parties here, including the
named Plaintiffs, the Court is highly skeptical that the fees counsel seeks are consistent
with “the rate a paying client would be willing to pay” for legal representation in this
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 31 of 34 PageID
#: <pageID>

32
case given the exceedingly unique circumstances of the litigation. Arbor Hill Concerned
Citizens Neighborhood Ass’n v. County of Albany (“Arbor Hill”), 522 F.3d 182, 190 (2d Cir.
2008); see also Burden Decl., ECF 98-4, ¶¶ 7–8 (asserting that Plaintiff Spence had not
promised counsel compensation in this case and understood that representation was
being provided pro bono). Of course, an agreement to provide pro bono representation
does not bar recovery of attorney’s fees on its own. See, e.g., Parris v. Pappas, 844 F. Supp.
2d 262, 269 (D. Conn. 2012) (rejecting the argument that where representation was pro
bono, a reasonable paying client “would expect to pay nothing” (citing Arbor Hill, 522
F.3d at 182 n.2)). Here, however, counsel has not provided a basis from which to infer
that his clients — current and former Amazon warehouse workers — “would be willing
to pay” him $675 per hour for nearly 200 hours of work. Arbor Hill, 522 F.3d at 190. As
discussed, counsel “simply told [lead Plaintiffs] that I would do the case without
charging them a fee, and that I would seek attorney’s fees from the union if we were
successful.” Schwartz Suppl. Decl., ECF 97, ¶ 3. He does not contend that Plaintiffs —
lead or otherwise — understood his rate, the anticipated scope of work, or anything else
that could allow them to assess what monetary value they attributed to counsel’s
services and make an informed decision to engage his services. Accordingly, the Court
has substantial reservations as to whether Plaintiffs fully understood the possible fee
consequences of signing counsel’s “Plaintiff Interest Form[s].” This additional concern
strongly militates against awarding the fees counsel seeks, in an exercise of discretion.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 32 of 34 PageID
#: <pageID>

33
An award of attorney’s fees is not mandatory, and lies within the Court’s
discretion.11 See Rodonich, 52 F.3d at 33. For all of the reasons discussed above, the Court
respectfully recommends finding that attorney’s fees should not be awarded in this
case.
CONCLUSION
For the foregoing reasons, the Court respectfully recommends denying Plaintiffs’
counsel’s motion for attorney’s fees in its entirety. Notwithstanding this
recommendation, the Court is sympathetic to the fact that counsel advanced litigation
costs for this case, and commends Mr. Schwartz’s zealous advocacy on behalf of his
clients. The Court also has concerns that this ruling could chill attorneys from taking on
similar representations in the future. These concerns do not, however, alter the Court’s
ultimate conclusion that forcing a different group of union members to pay the costs of
11 Even if counsel had demonstrated that attorney’s fees should be awarded, the Court’s
“personal observation of counsel’s performance” and review of the fee application indicate that
the full fee award counsel requests is not warranted here. Rosario, 749 F.2d at 1004. If the Court
were to recommend a fee award, some substantial reductions would be appropriate. First of all,
counsel’s rate exceeds the typical forum rates for this District. See Rubin v. HSBC Bank USA, NA,
763 F. Supp. 3d 233, 243–44 (E.D.N.Y. 2025) (determining that the upper end of the forum rates
in the Eastern District of New York, adjusted for inflation, is $450–$650 per hour for partners).
In addition, although counsel ably represented his clients through the process of negotiating the
consent decree, as the undersigned witnessed firsthand at the December 2023 settlement
conference, counsel’s time records contain some inaccuracies and inconsistencies, casting doubt
on their completeness and accuracy, which could lead to an across-the-board reduction. See
Billing Records, ECF 92-2; see also Marion S. Mishkin L. Off. v. Lopalo, 767 F.3d 144, 148 (2d Cir.
2014) (noting that failure to submit contemporaneous time records will result in the denial of
attorney’s fees in the usual course). For example, counsel submits that he billed one hour on
October 11, 2024, for “Conference with Judge Donnelly.” Billing Records, ECF 92-2, at 3.
However, a review of the docket shows that no such conference took place on that date; on
October 16, 2024, a 39-minute conference was held before Magistrate Judge Merkl, but Mr.
Schwartz’s time entries do not reflect this hearing. Compare Oct. 16, 2024 ECF Min. Entry &
Order with Billing Records, ECF 92-2. Accordingly, were the Court to recommend awarding fees
— which it does not for the reasons discussed above — it would also recommend reducing the
requested fee award. Given the foregoing recommendation, however, the Court declines to
conduct a full line-by-line analysis of the billing records here.
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 33 of 34 PageID
#: <pageID>

34
litigation incurred by a newly formed union is manifestly unfair and legally
unsupportable.
* 	* 	* 	* 	*
This report and recommendation will be filed electronically. Objections to this
report and recommendation must be filed, with a courtesy copy sent to the Honorable
Ann M. Donnelly at 225 Cadman Plaza East, Brooklyn, New York 11201, within
fourteen (14) days of filing. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed.
R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections
within the specified time waives the right to appeal both before the district court and
appellate courts. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008)
(explaining that “failure to object timely to a . . . report [and recommendation] operates
as a waiver of any further judicial review of the magistrate[ judge’s] decision”
(quotation marks omitted)).
SO ORDERED.
Dated: Brooklyn, New York
January 26, 2026
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
Case 1:23-cv-05261-AMD-TAM Document 102 Filed 01/26/26 Page 34 of 34 PageID
#: <pageID>