Daniel Koch v. JERRY W. BAILEY TRUCKING, INC ., and ESTATE OF JERRY W. BAILEY

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2952
DANIEL K OCH , et al.,
Plaintiffs-Appellants,
v.
JERRY W. BAILEY TRUCKING, I NC ., and
ESTATE OF JERRY W. BAILEY ,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:14-CV-72-HAB — Holly A. Brady, Judge.
____________________
A RGUED M AY 17, 2022 — DECIDED O CTOBER 18, 2022
____________________
Before S YKES , Chief Judge, and KIRSCH and JACKSON -
A KIWUMI , Circuit Judges.
JACKSON -A KIWUMI , Circuit Judge. The appellants in this
case are truck drivers who obtained settlements from their
former employer for violations of the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 216(b), and Indiana wage laws, I ND.
C ODE § 22-2-5, -9. This appeal, however, is about the district
court’s award of attorney’s fees to the truck drivers’ lawyer,

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2 No. 21-2952
Ronald Weldy. The truck drivers contend that the award of
attorney’s fees should have been higher. The defendants insist
that the district court’s award was reasonable and, even if it
was not, the employees waived any challenge to the fee award
when they stipulated to the filing of a satisfaction of judg-
ment.
We affirm. The district court did not abuse its discretion
when it lowered the fee award after it concluded that Weldy
overbilled his hours and the employees obtained only partial
success on the merits.
I
Jerry W. Bailey Trucking, Inc., provides services for haul-
ing debris, rocks, and other materials. During the time rele-
vant to this case, the company owned about 40 dump trucks,
all of them in use during peak seasons. Two drivers sued the
company and its owners, claiming that defendants violated
the FLSA and Indiana wage laws by failing to pay drivers for
time spent working before and after hauling jobs.
A. Certification, decertification, and settlements
The employees who launched this litigation proposed to
represent a collective action under 29 U.S.C. § 216(b) for the
federal wage claims, and a class action under Rule 23 of the
Federal Rules of Civil Procedure for the state-law claims.1
1 A “collective action” under § 216(b) and a “class action” under Rule
23 are similar in that both allow one or more lead plaintiffs to sue on behalf
of a group of similarly aggrieved individuals. But whereas a class action
automatically includes all members of a class who do not affirmatively opt
out, a collective action under the FLSA includes only employees who af-
firmatively opt in to the collective. Smith v. Pro. Transp., Inc., 5 F.4th 700,
702 (7th Cir. 2021). To accommodate § 216(b)’s opt-in requirement, the

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No. 21-2952 3
Even though defendants stipulated to both class certifica-
tion under Rule 23 and conditional certification of the FLSA
collective (while reserving their right to later move for decer-
tification), the employees’ first attempt at certification was
still unsuccessful. Unsatisfied with the parties’ stipulation,
the district court ordered the parties to provide supplemental
filings on two issues. First, the court required the parties to
explicitly define the claims, issues, and defenses to be certified
for class-wide resolution, as required by Rule 23(c)(1)(B). Sec-
ond, the court required additional information about whether
Weldy could adequately perform as class counsel, as required
by Rule 23(g). Regarding the latter concern, the court noted
that the Indiana Supreme Court had only recently reinstated
Weldy’s license to practice law following a disciplinary sus-
pension. After receiving the parties’ supplements, the court
concluded that Weldy’s disciplinary record precluded him
from representing the class and denied certification.
The court eventually granted Weldy’s motion for recon-
sideration, after Weldy provided more detail about his litiga-
tion experience and cited examples of cases in which he acted
as class counsel after his suspension and reinstatement. Now
convinced that Weldy could provide adequate representa-
tion, the court conditionally certified an FLSA collective and
certified a Rule 23 class. The class was defined to include truck
district court applied a two-step process in which plaintiffs sought “con-
ditional certification” and sent notice to the putative collective members,
after which defendants had an opportunity to seek decertification if too
few employees opted in. See Campbell v. City of Los Angeles, 903 F.3d 1090,
1110 (9th Cir. 2018) (collecting cases applying this process); CHARLES ALAN
WRIGHT & ARTHUR R. MILLER , 7B FEDERAL PRACTICE & PROCEDURE § 1807
(3d ed. 2005). The intricacies of this process, and how it differs from class
certification under Rule 23, are not important to this appeal.

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4 No. 21-2952
drivers who worked for defendants during a period between
2012 and 2013, while the collective reached back to 2011.
Among other things, the court found that the proposed class
was sufficiently numerous under Rule 23(a) because the
named plaintiffs testified that Bailey Trucking generally em-
ployed about 60 truckers at any given time.
But almost four years later, and after the parties had al-
ready briefed cross-motions for summary judgment, the court
granted defendants’ motion to decertify the class and collec-
tive. Contrary to the employees’ initial representation of a
class size of more than 60 truckers, the employees were ulti-
mately able to identify only 16 individuals who met the class
definition. The collective action, which included only 14
truckers who had opted-in, was likewise too small for collec-
tive resolution to provide any efficiency above simple joinder.
After decertification, the court struck as moot the existing
motions for summary judgment. The two employees who in-
itiated the suit then amended their complaint to add nine
plaintiffs who had been members of the class, collective, or
both, after which the parties engaged in a second round of
summary judgment briefing.
The court granted partial summary judgment for the em-
ployees, concluding that the company had violated federal
and state wage laws. But it concluded that a genuine dispute
existed about two issues that would affect the size of dam-
ages: (1) whether defendants’ violation was willful, which
would extend the FLSA’s statute of limitations from two years
to three, 29 U.S.C. § 255(a); and (2) whether defendants acted
in bad faith, which would unlock additional liquidated dam-
ages under Indiana law, I ND. C ODE § 22-2-5-2.

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No. 21-2952 5
Following the court’s ruling on summary judgment, the
parties negotiated settlements for each of the remaining plain-
tiffs and submitted them to the court for approval. This step
was necessary because a settlement is a contract, and the
FLSA restricts one’s ability to contract for wages below the
minimum wage, so any settlement of an FLSA claim requires
a judicial imprimatur. Walton v. United Consumers Club, Inc.,
786 F.2d 303, 306 (7th Cir. 1986). Here is a chart showing the
damages each plaintiff claimed at summary judgment, as
compared against how much each obtained in the negotiated
settlements:
Claimed Damages Settlement
$ 9,380.46 $ 6,500.00
$ 8,702.64 $ 6,172.00
$ 11,581.82 $ 4,400.00
$ 11,581.42 $ 6,700.00
$ 6,776.65 $ 3,100.00
$ 6,805.50 $ 4,955.00
$ 4,039.88 $ 673.31
$ 22,383.80 $ 15,000.00
$ 4,113.57 $ 2,742.38
$ 9,483.67 $ 5,200.00
$ 8,683.73 $ 5,200.00
Total $ 103,533.14 $ 60,642.69

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6 No. 21-2952
For the most part, the employees’ settlements reflected a full
recovery of claimed damages for the two-year period preced-
ing suit, along with a partial recovery for the third year of
damages that would have been available if the employees
proved a willful violation of the FLSA. The court approved
the settlements, concluding that an immediate partial recov-
ery outweighed the time and risk of trial.
B. Attorney’s fees litigation and notice of satisfaction of
judgment
The employees petitioned for an award of more than
$200,000 in attorney’s fees pursuant to the FLSA’s fee-shifting
provision. See 29 U.S.C. § 216(b). Their request reflected a bill-
ing rate of $450 per hour for about 416 hours of work per-
formed by Weldy, plus additional hours billed by Weldy’s as-
sociate at $200 per hour and paralegal at $150 per hour.
The district court granted in part the fee petition. As the
employees requested, the court applied the “lodestar”
method to calculate attorney’s fees by determining Weldy’s
reasonable hourly rate and multiplying it by the hours he rea-
sonably expended on the litigation. See, e.g., Nichols v. Illinois
Dep’t of Transportation, 4 F.4th 437, 441 (7th Cir. 2021). But the
court disagreed with the employees’ calculations and made
three modifications.
First, the court concluded that Weldy failed to support his
requested billing rate of $450 per hour, and that a $350 rate
was more reasonable. Weldy does not challenge this part of
the ruling on appeal.
Second, the court struck some of Weldy’s billed hours. The
court reasoned that Weldy should not recover fees for time he
spent litigating his own adequacy to represent the class,

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No. 21-2952 7
because that was time spent furthering his own interests ra-
ther than that of his clients. It then found that Weldy had
billed an excessive number of hours for time he and his para-
legal spent calculating and double-checking each employee’s
damages, including several truckers who did not ultimately
join the suit. The court also found that Weldy billed an unrea-
sonable number of hours for time spent litigating two rounds
of summary judgment, particularly since the second round of
briefing “was largely a cut-and-paste version of the first.” Af-
ter trimming these hours, the court calculated a lodestar fig-
ure of $134,940.
Third, the court reduced the lodestar figure to account for
Weldy’s only partial success in litigating the case. It explained
that Weldy failed in the suit’s primary goal of obtaining a
judgment on behalf of a class and collective. Moreover, the
court continued, the final settlements were only a fraction of
the damages that the employees had claimed at summary
judgment. It thus cut the lodestar figure of $134,940 by about
half, awarding only $70,000.
In response to the fees order, defendants mailed a check to
Weldy. Defense counsel also asked Weldy whether Weldy
would oppose defendants’ filing of a satisfaction of judgment.
Weldy said he had no objection, and defendants filed a “no-
tice of satisfaction of judgment and order” containing lan-
guage agreed to by the parties:
Come now the remaining Defendants, Jerry W.
Bailey Trucking, Inc. and the Estate of Jerry W.
Bailey (deceased), both by counsel, Beers Mal-
lers Backs & Salin, LLP, and notify the Court
and the clerk that the Defendants have paid in
full all sums due under the Judgment entered

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8 No. 21-2952
(March 12, 2021) [Doc 260] and the Order and
Opinion on attorney fees (July 16, 2021)[Doc
278], and have therefore satisfied their obliga-
tions under the same.
Shortly after defendants filed this notice, the employees
moved for reconsideration under Rules 52(b) and 59(e). But
the district court concluded that the employees had waived
any objection to the size of the fee award when they stipulated
to defendants’ notice of satisfaction. Relying on U.S. for Use &
Benefit of H & S Indus., Inc. v. F.D. Rich Co., 525 F.2d 760, 765
(7th Cir. 1975), the court reasoned that the employees had
demonstrated their intention to bring the litigation to a defi-
nite conclusion. In the alternative, the court explained that the
employees had not pointed to any newly discovered evi-
dence, nor shown any manifest error of law or fact, as would
be necessary to reopen the judgment. See Robinson v. Water-
man, 1 F.4th 480, 483 (7th Cir. 2021).
The employees appeal the district court’s award of attor-
ney’s fees, as well as its order denying reconsideration.
II
We review de novo any questions about the proper legal
framework when awarding or calculating an award. Nichols,
4 F.4th at 441. But so long as a district court applies the correct
legal standards, we “give the district court the benefit of the
doubt” in exercising its discretion to award fees and deter-
mine the size of any award. Id. at 442 (quotation omitted). We

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No. 21-2952 9
conclude that the district court’s ruling fell well within its dis-
cretion to fashion an appropriate award.2
A. The district court reasonably cut counsel’s billable
hours
The employees first contend that the district court erred
by limiting the time that Weldy could reasonably bill for var-
ious litigation tasks. The disputed billable hours fall into three
categories. We address each in turn.
Time spent drafting briefs on the adequacy of class counsel: The
employees first challenge the district court’s decision to strike
hours Weldy spent briefing his own adequacy as class coun-
sel. The court decided that an award of fees for time spent lit-
igating this issue was inappropriate because (1) Weldy’s brief-
ing on his adequacy as class counsel did not further the inter-
ests of the litigants, it merely furthered his own interest to
serve as counsel; and (2) Weldy’s disciplinary history trig-
gered the need for extra briefing.
The employees’ sole argument on appeal is that Weldy was
fighting for the interests of his clients because the employees
would not have had an opportunity to opt in to the collective
if he had not obtained certification. But as the district court
pointed out, different counsel could have represented the em-
ployees equally well. And in any case, the court decertified
the class and collective—the employees who joined the suit
ultimately did so as individual plaintiffs, a procedure for
2 Defendants alternatively argue that the employees waived any ar-
gument regarding the size of the fee award when they stipulated to the
notice of satisfaction of judgment. We need not decide any issue of wavier,
however, because we conclude that the district court did not abuse its dis-
cretion when calculating the fee award and affirm the award on that basis.

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10 No. 21-2952
which Weldy’s adequacy to handle a class action was irrele-
vant. So overall, the time Weldy spent defending his ade-
quacy as class counsel had little effect on the final judgment.
We do not mean to imply that class counsel should never
be reimbursed for time spent litigating their own adequacy
under Rule 23(g). A showing of counsel’s adequacy to repre-
sent a class is a crucial step in this type of litigation; a court
cannot certify a class without it. See Gomez v. St. Vincent Health,
Inc., 649 F.3d 583, 592 (7th Cir. 2011). And by enacting the
FLSA’s fee-shifting provision, Congress intended to encour-
age lawyers to take these cases. See 29 U.S.C. § 216(b); Wiscon-
sin v. Hotline Indus., Inc., 236 F.3d 363, 366 (7th Cir. 2000). We
see no reason why lawyers should not be encouraged to liti-
gate the requirements for certification with the same zealous-
ness that the legal profession expects them to litigate the sub-
stantive merits.
But here, the extra briefing on Weldy’s competency as
class counsel was necessary only because Weldy failed to ad-
equately address the issue in his original motion for class cer-
tification. And Weldy should have been on notice that his ad-
equacy might be questioned—he knew about his prior disci-
pline, and he knew that our court had previously affirmed the
denial of class certification in another case based on his inad-
equacy to represent a class. See Gomez, 649 F.3d at 592. As the
district court explained, “Weldy did not come into this case
with a clean slate.” The court reasonably concluded that de-
fendants should not foot the bill for Weldy’s time spent de-
fending his disciplinary history, particularly when he was ul-
timately unsuccessful in maintaining certification.
Time spent creating damages spreadsheets: The employees
next argue that the court abused its discretion by cutting

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No. 21-2952 11
hours that Weldy’s firm spent preparing spreadsheets of each
employee’s lost wages. Although Weldy and his paralegal
logged dozens of hours related to these spreadsheets, the
court cut that time to only five hours for Weldy and five for
his paralegal. The employees argue that the court should have
accepted the hours, which were reasonable given the large
number of paystubs and the complicated formula used to cal-
culate overtime pay.
The employees do not address, however, the district
court’s main reasons for cutting these hours. Central to the
court’s analysis was the vague nature of Weldy’s billing rec-
ords. Weldy and his paralegal billed for tasks such as “enter-
ing information into excel” and time spent to “[r]eview docu-
ments produced; finalize damage spreadsheets; calculate
damages for class members.” The court explained that
Weldy’s vague billing statements made it impossible for it to
determine how much time Weldy’s office had spent calculat-
ing damages for nonplaintiffs. Further, the employees con-
ceded that Weldy and his paralegal had to redo the damages
calculations “on multiple occasions” because of their mis-
takes. Yet Weldy’s vague records made it impossible to deter-
mine how much of his billed time was duplicative. District
courts have discretion to strike vague billing entries that do
not adequately describe the work performed. See Montanez v.
Simon, 755 F.3d 547, 555 (7th Cir. 2014). It appears, if anything,
the court gave Weldy the benefit of the doubt when it did not
strike these hours entirely.
The district court also took issue with Weldy’s billing of
nearly 20 hours for “finalizing” spreadsheets that his parale-
gal had already spent 26 hours to prepare. In general, an at-
torney’s billing rate is not appropriate for paralegal tasks.

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12 No. 21-2952
Nichols, 4 F.4th at 444. Yet the employees did not explain to
the district court why Weldy seemingly duplicated his para-
legal’s work, and even on appeal, their only explanation is
that Weldy needed to redo calculations “because of a flaw
with an equation” and because he learned new facts at depo-
sition. The district court reasonably found this explanation
lacking and concluded that defendants should not have to
pay extra for time Weldy’s office spent remedying its own
mistakes. We see no abuse of discretion in that decision.
Time spent briefing summary judgment motions: Third, and
finally, the employees challenge the district court’s decision
to trim the hours Weldy spent drafting two rounds of sum-
mary judgment briefs. By the district court’s calculations,
Weldy billed about 61 hours for the first round of briefing,
which was ultimately rendered moot, and another 31 for the
second round after the court decertified the class and collec-
tive. The court cut this time down to 60 hours total, explaining
that the second round of briefs was mostly a copy-and-paste
of the first round, and that the litigated issues were relatively
straightforward and did not justify 90-plus hours of work.
The employees concede that the two sets of briefs are sim-
ilar, but they argue that Weldy’s billed hours were reasonably
necessary to brief the issues and update the latter briefing to
cite new record evidence. These arguments, however, boil
down to a mere disagreement with the district court’s assess-
ment regarding the complexity of the briefing. This type of
broad disagreement, without more, does not warrant reversal
because district courts have broad discretion to assess the rea-
sonableness of an attorney’s fees and cut hours that they find
to be unjustified. Montanez, 755 F.3d at 556. And having re-
viewed the two sets of summary judgment briefs ourselves,

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No. 21-2952 13
we agree with the district court that the second motion for
summary judgment was mostly a copy of the original. The
district court reasonably concluded that the briefing was not
complex enough as to justify the billed hours.
B. The district court reasonably concluded that employees
obtained only a partial victory
The employees next contend that the district court erred
when it concluded that their lawsuit was only partially suc-
cessful. They argue that Weldy obtained excellent settlements
for each of the plaintiffs who joined the suit after decertifica-
tion.
But the district court properly exercised its discretion
when decreasing the fee award to account for the employees’
relative lack of success. A prevailing plaintiff is entitled to
only “reasonable attorney’s fees” under the FLSA. 29 U.S.C.
§ 216(b) (emphasis added), and a plaintiff’s degree of success
on the merits is the “most critical factor” in a district court’s
determination of what constitutes “reasonable” fees. Farrar v.
Hobby, 506 U.S. 103, 114 (1992). A plaintiff who achieves “ex-
cellent results” should receive the entire lodestar, but when
“a plaintiff has achieved only partial or limited success,” the
lodestar “may be an excessive amount.” Hensley v. Eckerhart,
461 U.S. 424, 435–36 (1983).
Most significantly, the court cited the decertification of the
class and collective as a major loss for the employees in this
case. When, as here, a plaintiff’s primary goal is to certify a
case for collective action under the FLSA, the plaintiff’s ability
to secure certification may be factored into the court’s fees de-
termination. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d
132, 152 (2d Cir. 2008). Billable hours that would be

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14 No. 21-2952
appropriate for a sprawling class action may no longer be rea-
sonable if a class is decertified, after which counsel represents
only a fraction of the class members. Thorogood v. Sears, Roe-
buck & Co., 595 F.3d 750, 753 (7th Cir. 2010), overruled on other
grounds by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir.
2015). A court can reasonably conclude that defendants
should not bear the entire cost if the attempt to bring a claim
as a class action “was a flop.” Id.
The employees argue that they were still successful de-
spite decertification because the temporary certification
helped galvanize additional employees to join the suit. But
the employees’ stated goal was to obtain judgments for more
than 60 truckers, and they obtained settlements for only one-
sixth of that number. The deterrent effect on the employer is
thus lessened, as is size of the total judgment that can be at-
tributed to Weldy’s advocacy. Moreover, as the district court
explained, Weldy did not clearly differentiate between the
time he spent working on behalf of the settling plaintiffs and
other class members. And when a court cannot easily separate
the successful and unsuccessful work, it can impose an
“across-the-board reduction that seems appropriate in light of
the ratio between winning and losing claims.” Montanez, 755
F.3d at 557 (quoting Richardson v. City of Chicago, 740 F.3d
1099, 1103 (7th Cir. 2014)).
Even if we ignore the putative class members who were
booted from the suit, decertification also limited the potential
recovery of the individual plaintiffs who remained and nego-
tiated settlements. The settling employees lost out on the “in
terrorem character of a class action,” by which the threat of a
class recovery can be used to obtain larger settlements for
class members with relatively weaker claims. Messner v.

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No. 21-2952 15
Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir.
2012). The named plaintiffs also lost out on incentive awards,
in addition to their individual damages, that they might have
received for representing the class and collective. See Espen-
scheid v. DirectSat USA, LLC, 688 F.3d 872, 876–77 (7th Cir.
2012). In sum, certification potentially would have meant
more money for everyone on the plaintiff’s side of the “v.”
The district court reasonably concluded that decertification
thus rendered the suit only partially successful.
Even more important to the district court’s decision to re-
duce the lodestar, however, was that “[a]t base … Plaintiffs
recovered only a fraction of the damages claimed in the sum-
mary judgment briefs.” Altogether, the employees recovered
about $60,600 of the $103,500 they claimed in damages, with
each individual plaintiff receiving between 17% and 73% of
that plaintiff’s claim. This limited recovery was particularly
striking when compared against Weldy’s request for more
than $200,000 in fees, about triple what his clients received. A
district court assessing a plaintiff’s degree of success may con-
sider how the size of the final recovery stacks up against the
amount plaintiff originally sought. Spegon v. Cath. Bishop of
Chi., 175 F.3d 544, 558 (7th Cir. 1999). And although a fee
award does not need to be proportionate to the amount of
damages recovered, a court may also consider the ratio of
damages and fees as one factor when contemplating a reduc-
tion. Id. “[A] fee request that dwarfs the damages award
might raise a red flag.” Montanez, 755 F.3d at 557 (quoting An-
derson v. AB Painting & Sandblasting Inc., 578 F.3d 542, 546 (7th
Cir. 2009)).
The employees defend each individual settlement, argu-
ing that most employees received full recovery for two years’

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16 No. 21-2952
worth of wage violations, plus partial recovery of the addi-
tional damages that would have been unlocked had plaintiffs
proven defendants’ willfulness or bad faith. They say that be-
cause willfulness and bad faith are “highly contested in these
kinds of cases,” any recovery under those categories is a great
result. The employees thus appear to be arguing that they
won on the easy claims while struggling with the hard ones.
We do not see why taking a hit on only the hard claims means
that the employees should be considered to have been fully
successful on the merits—at the very least, the district court
had discretion to characterize the settlements as only a partial
victory.
Finally, we are not persuaded by the employees’ argument
that the district court’s reduction of the lodestar represented
a misunderstanding of the facts. The employees maintain that
the court erroneously believed that the putative class was
larger than it was, and therefore reduced the fee award only
because it overestimated how much time Weldy spent work-
ing on the claims of non-settling class members. But the court
decertified the class and collective because it understood that
the class proved to be much smaller than the employees an-
ticipated. The difference between reality and expectation is
part of why the court found that the employees obtained only
a limited degree of success.
Ultimately, the court awarded about 45 percent of the ad-
justed lodestar, which it deemed reasonable in light of decer-
tification and a final judgment that was roughly 59 percent of
the damages claimed by the settling plaintiffs. This award
was still more in fees than the total amount recovered by the
plaintiffs themselves. We see no abuse of discretion in the
court’s decision to not award more.

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No. 21-2952 17
III
For the above reasons, we AFFIRM the district court’s or-
der granting in part the employees’ request for attorney’s fees.

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