                                                            FILED
                                                United States Court of Appeals
                           PUBLISH                      Tenth Circuit

               UNITED STATES COURT OF APPEALS         August 19, 2014

                                                   Elisabeth A. Shumaker
                        TENTH CIRCUIT                  Clerk of Court


ADELINA GARCIA; ANTONIO
GARCIA; JERONIMO VARGAS-VERA;
EFRAIN AGUILAR; PAULINA
AGUILAR; ADELAIDA AGUIRRE;
JOSE R. AGUIRRE; SALVADOR
ALMANZA; MIGUEL AMAYA;
ROGELIO ANDRADE; JESUS
ANGUIANO; EFIGENIA ARANA; JOSE
R. ARANA; RAMON ARANA; ALMA
ARMENDARIZ; JORGE L. BANDA
VALADEZ; DELFINO BARRAGAN;
LUCIA BARRAGAN; RAMON P.                No. 12-3346
BARRAGAN; HOLGA BENITEZ;
BALTAZAR BONILLA; MARIA
GUADALUPE BONILLA; CATALINA
BUSTILLOS; BERNARDO
CALDERON; ETELVINA CALDERON;
GLORIA CALZADA DE CARILLO;
MANUEL CALZADILLAS; JOAQUIN
CAMACHO; ROBERTO CANO; ROSA
M. CANO; ALBERTO CARRILLO;
JAVIER CARRAVAJAL; LUIS
CASTANON; MARIA ROSARIO
CASTILLO; VICTOR CASTILLO;
DAVID CASTRO; CIPRIANO CERNA;
FLAVIO CHAVEZ; JOSE A. CHAVEZ;
GRISELDA CLARO; JESUS CLARO;
JOSE L. CONTRERAS; ELISEO PEREZ
CORREA; AGUSTIN CRUZ; FLOR
ANGELA CRUZ; LORENZO CRUZ;
SOCORRO DE LEON; AURORA
CHAVEZ DE MONTES; JAVIER
DELGADO; JOSE N. DELGADO;
LILIANA MARTINEZ DELGADO;
LOREZO DELGADO; GILDARDO
RAMON DIAZ; ROSA D. DIAZ;
CARMELO G. DIAZ-SANTAMARIA;
ANA DURAN; EDGAR E. DURAN;
ABE DYCK; ELIZABETH DYCK;
FERNANDO H. ESCALANTE;
MARINA ESCALANTE; CANDIDO
HERNANDEZ ESCOBEDO; CARLOS
E. ESPINO; FRANCISCO ESTRADA;
HUMBERTO ESTRADA; MARIA
ESTRADA; AIDE B. ESTRADA VITAL;
JESUS FELIX; JOSE FLORES; JUAN
JOSE FLORES; TOMASA FRAIRE;
ERASMO GALAN; MARICELA
GALAN; ROMUALDO GALAN;
GLORIA GALAVIZ; ROCIO GALAVIZ;
CIRO GALVEZ; SILVIA REYES
GALVEZ; AGUSTIN GARCIA;
BERTHA GARCIA; HUMBERTO
PEREZ GARCIA; LUZ E. GARCIA;
MAURO GARCIA; MOISES GARCIA;
MARIA S. GLORIA; ELIA GOITIA;
MELQUIADES GONZALES; JUAN M.
GONZALEZ; MARIA T. GONZALES;
MIGUEL LORENZO GONZALEZ;
ROSARI MELENDEZ GRANDE;
MANUEL GUERRERO; SAMUEL
GUEVARA; ANGEL R. GUTIERREZ;
EUSEBIO GUZMAN; JUANA
GUZMAN; LETICIA GUZMAN;
ROSENDO GUZMAN; SILVIA
GUZMAN; ELIZABETH C.
HAMILTON; HERBER RUFINO
HENRIQUEZ; ALBERTO
HERNANDEZ; EFREN HERNANDEZ;
ELIDA HERNANDEZ; FELICIANO
HERNANDEZ; FIDEL HERNANDEZ;
GUADALUPE HERNANDEZ; JESUS
HERNANDEZ; JORGE HERNANDEZ;
MARIA HERNANDEZ; MIGUEL

                                  2
ANGEL HERNANDEZ; ROSA
HERNANDEZ; WENCESLAO C.
HERNANDEZ; WILFRIDO
HERNANDEZ; ADRIAN S. HERRADA;
AIDA HERRADA; ALFONSO
HERRADA; MARIA GUADALUPE
HERRADA; ELIZABETH HERRADA
DE CRUZ; RANDY HOSKINSON;
OSCAR INTERIANO; MARTIN H.
ISCO; MARGARITA LEANOS; PEDRO
LEYVA; CELSA LEYVA DE GARCIA;
BLANCA E. LIRA; DIANA LOPEZ;
GENARO LOPEZ; LAURA LOPEZ;
LAURO LOPEZ; MARGARITO LOPEZ;
MARIA DEL CARMEN LOPEZ;
MARIA DE LA LUZ LOPEZ; MAURA
LOPEZ; MIGUEL A. LOPEZ; MIGUEL
Z. LOPEZ; RODOLFO LOPEZ;
MODESTO LOYA; JOSE A. LUJAN;
MANUELA O. GARAY DE LUJAN;
BEATRIZ MADERA; MONICA
MARMOLEJO; FELICIANO
MARTINEZ; FIDEL MARTINEZ;
GANDINO MARTINEZ; LETICIA
MARTINEZ; NESTOR MARTINEZ;
RAFAELA ORTIZ MARTINEZ;
SATURNINO MARTINEZ; MARIO
MAYA; DOMINGO MARTIN MEDINA;
RAMIRO MEJIA; MARIA DORA
MENDEZ; RODOLFO MENDEZ;
BEATRIZ MENDOZA; IRENE E.
MERINO; DIONILA MEZQUITA;
MARIA MOLINA; MAXIO A.
MOLINA; SERGIO A. MONRREAL-
ROCHA; RAUL MONRROY;
ALFONSO MONTANO; LUIS
MONTERROZA; ADRIAN MORALES;
FRANCISCA MAGALLANES MUNIZ;
ALFONSO MURCIA; CARLOS
MURGUIA; ABRAHAM SOSA; ABEL

                                 3
NAVARRETE; ALBERTO TAMAYO;
LORENZO NAVARRETE; SONIA
TAMAYO; RAMON NAVARRETTE;
ALISIA NIETO; JOSE J. TERRAZAS;
ISAAC OLGUIN; MARIA TERRAZAS;
JAVIER OLGUIN; MARY OLGUIN;
ALBARO TORRES; MARIA D.
OLIVAS; SANG THI TRAN; LAURO
ORTEGA; THANH NGOC TRAN;
MARIA ROSA ORTEGA; MARICELA
LARES ORTEGA; MARIA URRUTIA;
YOLANDA ORTEGA; ROLANDO
VAILLANT; FRANCISCO A. ORTEZ;
MARIA E. VALADEZ; MANUEL
OSORIO; YASMIN VALADEZ; JOSE
RAUL PALACIOS; MARIA ANGELINA
PALACIOS; GILBERTO ARMANDO
VALENCIA; MIGUEL PERALES;
ABRAHAM VALLEJO; BERTHA
PEREZ; GABRIELA PEREZ; BERTHA
VALLEJO; JORGE L. PEREZ;
MARIANA VANEGAS; MARTHA
PEREZ; GERARDO C. VARELA; JOSE
ALEJANDRO PINEDA; ALEJANDRO
PONCE; JOSE VASQUEZ; IRMA
PONCE; RAYMUNDO VASQUEZ;
JUAN PONCE; SALVADOR
VASQUEZ; JOSE VICTOR PRIETO;
ROSA MARIA VELASCO; EUGENE
PROKOPINSKI; SAUL VELASCO;
JUAN ENRIQUE RAMIREZ; MARIA
RAMIREZ; NICOLAS RAMIREZ-
ACOSTA; JOSE RENTERIA; ALMA
RESENDIZ; ESTEBAN RESENDIZ;
SANDRA RESENDIZ; JOSE A. REYES;
FRANCISCO J. VELAZQUEZ; IRMA G.
VELAZQUEZ; MIRIAM DEL CARMEN
REYES; FRANCISCO MONTES RIOS;
REYMUNDO VIANA; SALVADOR
ALVAREZ RIVERA; JESUS VILLEDA;

                                  4
JORGE ROBLES; SANTIAGO
VILLEGAS, JR.; LUZ M. ROCHA;
SERGIO ZAMORA; GUADALUPE
RODRIGUEZ; JOSE R. RODRIGUEZ;
MARINA RODRIGUEZ; RAFAEL
RODRIGUEZ; ROSA RODRIGUEZ;
SALVADOR ROMERO; RUBEN N.
SALAS-ORTIZ; RICARDO SALDANA;
SIXTO SALDANA; CANDIDO
MARINO SANCHEZ; ROSA MARIA
SANCHEZ; RAMON SANDOVAL;
DANIEL SANTACRUZ; LUIS A.
SANTACRUZ; JOAQUIN SANTOYO;
SOFIA E. SAUCEDA; ALEJANDRO
SERRANO; ARMANDO SERRANO;
FERNANDO SERRANO; SERGIO
SERRANO; BRENDA SERRATO;
RAFAEL SOLIS; DAVID S.
SOLORZANO; AARON SOSA;
MIGUEL AGUILERA; JUANA
ALMANZA; MANUEL ALMANZA;
BENITO BARRAGAN; MARIA
CERRITOS; ISMAEL CHAIREZ; SARA
CHAVARRIA; RAQUEL ESTRADA;
ANA R. FLORES; JOSE HUERTA;
SOPHIA LAMDERO; ARNULFO LIRA;
GABRIELA LIRA; JULIA LOPEZ;
MANUEL DE JESUS LOPEZ; MARIA
A. MARTINEZ; MARIA GUADALUPE
MARTINEZ; MAREIAL MORALES;
ESTELA MURGUIA; ARMANDO
NUNEZ; MICHELLE ORTEGA; OMAR
ORTEGA; LUIS ORTIZ; ROSALIA
PEREZ; SOCORRO PEREZ; MARIA
PEREZ-SERRANO; MELANIA
PINEDA; JOSE RAMIREZ; PETER
RAMIREZ; STEVEN RAMIREZ;
DIANA RAMOS; BLANCA
SALMERON; FELIX SOLOZANO;
VASHON L. TELFAIR; ARTURO

                                 5
VILLANUEVA; IRINEO ZEPIEN;
CARLOS ACOSTA; ELIAS MURILLO
AVALOS; HUGO CASTRUITA;
ALICIA MUNOZ HERNANDEZ;
FRANCISCO HUEREQUE; ALICIA
MARTINEZ; JOSE G. MARTINEZ;
PEDRO NEAVE; CATALINA
ALVARAEZ DE NICHOLS; EDUARD
NICHOLS; MARIA DEL CARMEN
PEREZ; MARIA MARGARITA
RENOVA; ALICIA SANCHEZ;
MACARIO R. FARIAS; PRIMITIVO
GALVEZ; MARIA LOURDES
GONZALES; GASPAR BENITO LUX;
ENRIQUE MUNOZ; GREGORIA
RAMIREZ; SALVADOR SANCHEZ;
AURA SANTACRUZ; JOSE I.
VALDEZ; HECTOR GARCIA VALLES;
JESUS AGUILAR; MARIA A.
ARREOLA; FEDERICO G.
BALTAZAR; ARMANDO CASTILLO;
ABIGAIL CHAIREZ; MARIA
ESTRADA CHAIREZ; PATRICIA
CORREA; ANGELICA MARIA NUNEZ
ENRIQUEZ; JOSE ANSELMO
ENRIQUEZ; FRANCISCO ESQUIVEL;
HUMBERTO ESQUIVEL; TOMAS
FELIX; MARIA FLORES; SAMUEL
GOMEZ; ELIZABETH GONZALES;
KRISTAL GONZALEZ; RONALD W.
HARDEN; TEODOLO HEREDIA;
MARIO HERRERA; RIBORGERTO
JOHNSON; JOSE DE JESUS LIAMAS;
LUIS E. LOZANO; MARIO CHAIREZ
MARES; EUSEBIO MARROQUIN;
MARIA NOELI MONTOYA; NORMA
NAIERA MORALES; HUGO ORTEGA;
ROSALBA ORTEGA; GONZALO
PADILLA; MERCEDES RAMIREZ;
SALVADOR ROJO; RODOLFO

                                 6
RUBALCAVA; ROSINDA DE JESUS
UCLES; IGINIO CRUZ; FELIPE
BRAVO; CHARLES VELAZQUEZ
BAEZ; REYNA LOPEZ; AURORA
ALDANA; EDUARDO F. NOLASCO;
PEDRO BALTAZAR; EDDIE PRIETO;
JACIMTO ALMAREZ; CARLOS
MARTINEZ; MARIA MARTINEZ;
JOSEFINA GARCIA DE RODRIGUEZ;
FELIMON RODRIGUEZ; JOSE
MARTIN HERNANDEZ; JOSH
LUNDBLADE; NORA DURAN;
SANDRA M. HERNANDEZ ALFARO;
FAUSTO VASQUEZ; JOSE
HERNANDEZ; JORGE HINOJOSA;
SEVERIONA HINOJOSA; GILBERTO
GUILLEN; CRUZ P. RAMIREZ;
VIDALINA G. GALVAN; ANTHONY
GARCIA; ASCENCION GARCIA;
ROBERTO AGUILAR; ROBERTO
ALMEDA; BLANCA BENITEZ; DAVID
CHAVEZ; LUIS ALBERTO
SANTACRUZ CASTANEDA; MARTIN
FACIO; FEDERICO CHAVEZ; AARON
FINDLEY; ANTONIO HINOJOS;
MARIA LAGUNA GUERRA; JOEL
GARCIA MAEDA; JOSE MORALES;
ELIZABETH ONTVEROS; JOEL
ORTEGA; MANUELA ORTEGA; JUAN
REYES; PEDRO REYES; HELADIO
RIVAS; CARMELITA ROSALES;
FEDERICO ROSALES; ALFREDO
RUTIAGA; REYNA SALINAS;
RAMON SOTO; JOSE ARRAS; MARIA
DEL CARMEN; ELAINE ROMERO;
CARLOS MENDIAS; SABRINA
GARCIA; ADAMS MURILLO;
AMALIA MORALES; MICHAEL
LIBARRA; ARTURO CELIS; SONYA
MARIBEL HERNANDEZ; MARIA

                                7
GERRERO; WILFRIDO INGLES;
EDELMIRA VELAZZO; SHARON
SMITH; RAMON PEREZ; CINDY
CISNEROS; DORA ALICIA
MARTINEZ; AMADO FIGUEROA;
GUADALUPE QUESADA; PATRICIA
ANGUIANO; JOSE LUIS BARRON
MENDEZ; MARIA PONCE;
LEONARDO GODINEZ VILLALOBOS;
J. R. OTERO; ALVARO TORRES;
FIDEL REYES; ISMAEL LOPEZ; JOSE
VALADEZ; RAFAEL RUIZ;
LEOPOLDO SANCHEZ; SAUL
RIVERA; MIGUEL ENRIQUEZ;
RICARDO MARTINEZ; GLORIA
GARCIA; JOSE MINEROS; INES
LOPEZ; PEDRO S. HERNANDEZ;
ALEJANDRO SOLORZANO;
FRANCISCA QUINTANA; CRUZ
GUEVARA; CRISTINA TUCKER;
PASCUAL BARCENAS; MIGUEL
CORTEZ; MARIA ELENA GOMEZ;
ROQUE SOTO; ARMANDO AGUIRRE;
JESUS ALVAREZ; GALINDA
BANUELOS; LETICIA CARDEMAS;
MARIA DAMIAN; GUILLERMO
DOMINQUEZ; CARLA ESPINO;
OSCAR GALVEZ; BERNABED
GRAMAJO; FRANK GUEBANC;
FRANCISCO GUERRERO; ANTONIA
HERNANDEZ; LETICIA
HERNANDEZ; MARCO ANTONIO
HERNANDEZ; JOSE MARTINEZ; JOSE
LUIS MEDINA; MARTHA MARIA
MENDIOLA; SILVIA NAVAR; DAVID
RAMIREZ; MARIA I. REYES;
FRANCISCO RICO; JUAN RICO
RODRIQUEZ; LAWRENCE
STEADHAM; MARTIN TERRAZAS,
JR.; BERTHA F. TREJO; JUAN

                                  8
VIRQUEZ; ISAAC ADAME,

             Plaintiffs – Appellees,

v.

TYSON FOODS, INC.; TYSON FRESH
MEATS, INC.,

             Defendants – Appellees. .


                 Appeal from the United States District Court
                           for the District of Kansas
                        (D.C. No. 2:06-CV-02198-JTM)


George A. Hanson (Todd M. McGuire with him on the briefs), Stueve Siegel
Hanson LLP, Kansas City, Missouri, for Plaintiffs-Appellees.

Michael J. Mueller, Hunton & Williams LLP, Washington, D.C. (Craig S. O’Dear
and Terence J. Thum, Bryan Cave LLP, Kansas City, Missouri, with him on the
briefs), for Defendants-Appellants.


Before KELLY, EBEL, and BACHARACH, Circuit Judges.


BACHARACH, Circuit Judge.



      A group of employees filed class and collective actions against Tyson

Foods, Inc., seeking unpaid wages for time spent on pre- and post-shift activities.




                                         9
After the employees obtained a sizeable verdict and fee award, 1 Tyson

unsuccessfully moved for judgment as a matter of law. On appeal, Tyson: (1)

challenges the judgment and denial of the motion for judgment as a matter of law,

and (2) argues that the fee award was excessive. We reject Tyson’s contentions.

The Plaintiffs presented sufficient evidence of undercompensation and the district

court acted within its discretion in setting the fee award. Thus, we affirm.

I.     Compensation for Pre- and Post-Shift Activities

       Tyson produces food products and has employed all of the plaintiffs at a

production facility in Finney County, Kansas. The jobs required the Plaintiffs to

wear certain protective clothing and equipment. 2 Thus, before each shift, the

Plaintiffs would put on the clothing and equipment, removing them when the shift

was over.

       The Plaintiffs were paid through two systems: (1) “gang time,” which was

intended to compensate for time spent working on the production line, and (2)

“K-Code” time, which was intended to compensate for time spent on pre- and




1
        The district court also assessed costs against Tyson, but the cost assessment is not
at issue.
2
       These items include shin guards, mesh aprons, legging aprons, belly guards,
knives, mesh gloves, Polar gloves, Polar sleeves, plexiglass arm guards, mesh sleeves,
and knocker vests.
                                            10
post-shift activities, such as putting on protective clothing and equipment, taking

them off, and walking to and from the work stations. 3

      Tyson implemented the K-Code in 1998. Initially, the K-Code equaled 4

minutes and applied only to employees working in knife-wielding departments.

Tyson revised the K-Code in January 2007, making knife-wielding employees

eligible for up to 7 minutes of K-Code time. A third revision occurred in April

2010, when Tyson increased the K-Code minutes and allotted them to all hourly

production workers. Tyson eventually allotted 20-22 minutes of K-Code time for

each shift, depending on the job.

II.   The Litigation

      The Plaintiffs sued Tyson, invoking the Fair Labor Standards Act and the

Kansas Wage Protection Act and alleging insufficient compensation for pre- and

post-shift activities. 4 The district court certified the matter as a collective action

under the Fair Labor Standards Act and a class action under the Kansas Wage

Protection Act.




3
      The “K” in “K-Code” stands for “knife” because, when originally implemented,
the K-Code applied only to workers who had to carry knives. II Appellant’s App. at 152.
4
       The Fair Labor Standards Act requires employers to compensate employees for
overtime work at a rate of “one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1) (2006). The Kansas Wage Protection Act requires
employers to pay “all wages due to its employees.” Kan. Stat. Ann. § 44-314(a)
(2007).
                                           11
       A jury found that Tyson had undercompensated the Plaintiffs for pre- and

post-shift activities, fixing damages at $166,345 under the federal statute and at

$336,666 under the state statute.

       After the district court entered judgment for the Plaintiffs, Tyson moved

for judgment as a matter of law, arguing that the evidence did not support the

verdict and that the court should have decertified the class and collective actions.

The district court denied the motion, reasoning that: (1) the Plaintiffs had

presented sufficient evidence to support the verdict, and (2) the Plaintiffs had

satisfied the legal requirements for continued certification as class and collective

actions.

       The Plaintiffs filed a motion for attorneys’ fees and costs. Tyson opposed

the motion and moved to compel production of counsel’s timekeeping records.

The district court denied the motion, opting instead to review the timekeeping

records in camera. The court eventually awarded attorneys’ fees totaling

$3,389,207.41.

       This appeal followed.

III.   Sufficiency of Evidence

       Tyson argues that the evidence was insufficient to support the verdict

because the Plaintiffs did not prove unpaid time on a class-wide basis. We




                                         12
conclude that the jury could have reasonably inferred class-wide liability based

on the trial evidence.

      A.     Standard for Sufficiency of the Evidence

      We review the district court’s ruling de novo and will reverse only if “‘the

evidence points but one way and is susceptible to no reasonable inferences

supporting the party opposing the motion.’” Sanjuan v. IBP, Inc., 275 F.3d 1290,

1293 (10th Cir. 2002) (quoting Baty v. Willamette Indus., Inc., 172 F.3d 1232,

1241 (10th Cir. 1999)).

      B.     The Reasonableness of a Finding of Class-Wide Liability

      For the federal and state claims, the overarching question for the jury was

whether the K-Code system had resulted in underpayment. The jury answered

this question “yes.” Our task is to determine whether this answer was reasonable

based on the evidence. It was.

      The jury could have reasonably approached liability by addressing two

questions:

      ●      Did Tyson pay its employees for all of the time they spent at work?

      ●      If not, how much of that time was spent getting in and out of
             protective clothing and equipment and walking to and from the work
             stations?

      To answer the first question, the jury could have relied on Tyson’s own

internal study. This study compared: (1) the number of hours for which


                                        13
employees were paid (through the combination of gang-time and K-Code time),

with (2) the total number of hours that employees spent at the work site (as

shown by their “clock in” and “clock out” times). This study showed that on

average, Tyson employees were not paid for more than 29 minutes per shift. 5

      The resulting question for the jury was how many of these 29+ minutes

were spent getting in and out of protective clothing and equipment and walking to

and from the work stations. To answer this question, the jury could have
5
      Tyson’s study showed:

      ●      a total of 66,871.6 hours of gang-time,

      ●      a total of 71,399.94 hours for the time spent at the work site (based on the
             times the employees “punched in” and “punched out” with time cards),

      ●      a total of 640.57 hours that Tyson attributed to getting in and out of the
             protective clothing (reflected in the K-Code), and

      ●      a total of 7,816 shifts.

See Supp. App. at 339-41.

       Thus, Tyson paid employees for 67,512.17 hours (gang time of 66,871.6 hours +
K-Code time of 640.57 hours). A total of 3,888.77 hours went uncompensated
(71,399.94 hours based on the “punch in”/“punch out” time ― 67,512.17 hours reflecting
the sum of the gang time and K-Code time). The employees were uncompensated
3,888.77 hours over the course of 7,816 shifts. Thus, for each shift, employees were not
paid 49.74% of an hour for each shift.

      3,888.77 hours = 49.74% (hour/shift)
      7,816 shifts

Converted to minutes, the 49.74% of an hour per shift equaled 29.84 minutes per shift.

      49.74% hour/shift x 60 minutes = 29.84 minutes/shift.
                                       14
reasonably relied on employee testimony, testimony from Dr. Radwin, and

evidence involving Tyson’s increases to the K-Code.

      First, the Plaintiffs presented testimony from three employees: Ms.

Adelina Garcia, Mr. Antonio Garcia, and Mr. Jeronimo Vargas-Vera. These

employees testified that they had spent 5-12 minutes each shift putting on and

taking off their protective clothing and walking to and from the work stations.

But Tyson allocated only 4 to 7 minutes for those activities from May 2003 to

April 2010.

      Second, the Plaintiffs presented expert testimony from Dr. Robert Radwin,

who measured the time spent on pre- and post-shift activities for 67 employees. 6

Dr. Radwin observed that the employees spent an average of 20.85 minutes on

pre- and post-shift activities.

      Third, Tyson increased the K-Code at least three times between May 15,

2003, and December 31, 2010. For roughly 91% of this period (May 15, 2003, to

April 11, 2010), Tyson paid its employees 4-7 minutes of K-Code time per shift.

Though the job responsibilities did not change, Tyson later increased the K-Code

minutes.




6
       Pre-shift activities were measured for 39 of the employees, and post-shift
activities were measured for the other 28 employees.
                                         15
      Tyson acknowledged that the K-Code was intended to compensate

employees for certain activities before and after the shifts. 7 Thus, the jury could

have inferred recognition by Tyson that until 2010, it had underestimated the time

required to get in and out of the protective clothing and equipment and to walk to

and from the work stations.

      We do not know how the jury ultimately decided to find class-wide

liability. But we do know that there was a reasonable basis for the jury’s finding

of systematic undercompensation. Thus, the evidence was sufficient for the

finding of class-wide liability.

      C.     Liability as to Each Class Member

      Though the evidence sufficed for the Plaintiffs as a group, Tyson

challenges the proof of undercompensation for each class member. This

argument is unpersuasive for three reasons: (1) such proof was unnecessary; (2)

the jury could rely on representative evidence; and (3) Tyson relies on cases that

are inapplicable.

7
        Tyson denies having admitted that its K-Code changes reflected “the amount of
time spent by each class member on the subject activities.” Tyson’s Reply Br. at 7 (June
21, 2013). But Tyson did admit that it intended the K-Code time “to compensate certain
production employees for time spent conducting pre and post shift donning and doffing
of certain unique clothing and equipment.” XI Appellant’s App. at 2226-27; II
Appellant’s App. at 146, 246. And the jury could reasonably attribute the increase in K-
Code minutes to recognition that the employees spent more time on pre- and post-shift
activities than Tyson had estimated. See Appellee’s Supp. App. at 385 (2010
memorandum stating that Tyson increased the K-Code minutes in 2010 “for time spent
putting on clothing and equipment, cleaning up, and walking to and from their jobs”).
                                            16
      First, the Plaintiffs did not need to individualize the proof of

undercompensation once the district court ordered certification as a class action

and collective action. See First Alliance Mortg. Co. v. Lehman Commercial

Paper, Inc., 471 F.3d 977, 992 (9th Cir. 2006) (holding that the plaintiff’s

evidence of class-wide liability for fraud was sufficient, notwithstanding

variations among the communications to class members, reasoning that “[t]he

class action mechanism would be impotent if a defendant could escape much of

his potential liability for fraud by simply altering the wording or format of his

representations across the class of victims”).

      Second, the jury could reasonably rely on representative evidence to

determine class-wide liability because Tyson failed to record the time actually

spent by its employees on pre- and post-shift activities. See Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 687 (1946) (stating that plaintiffs under the

Fair Labor Standards Act need not “prove the precise extent of uncompensated

work” when “the employer’s records are inaccurate or inadequate”); see also

Perez v. Mountaire Farms, Inc., 650 F.3d 350, 371-72 (4th Cir. 2011) (upholding

the district court’s use of average don-and-doff times from a time-study report

authored by Dr. Radwin).

      Third, Tyson relies on cases such as Wal-Mart Stores, Inc. v. Dukes, ___

U.S. ___, 131 S. Ct. 2541 (2011), Thiessen v. Gen. Elec. Corp., 267 F.3d 1095


                                         17
(10th Cir. 2001), Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir.

2013), and Lugo v. Farmer’s Pride Inc., 737 F. Supp. 2d 291 (E.D. Pa. 2010),

which involve class certification, not sufficiency of the evidence. Because Tyson

does not appeal the district court’s certification rulings, the cited cases do not

apply.

         For these reasons, we conclude that the jury could have reasonably inferred

that each class member was undercompensated.

         D.    Damages for Employees Who Were Not Underpaid

         The jury awarded less to the Plaintiffs than they had requested. As a result,

Tyson argues that the jury must have assessed liability for some class members

who were not undercompensated. According to Tyson, this assessment was

unsupportable and the jury’s “lower” damage award means that “even more class

members would have fallen out of liability.” See Appellant’s Opening Br. at 40;

Appellant’s Reply Br. at 11. We disagree because: (1) the evidence supported a

finding of undercompensation for every class member, and (2) Tyson’s argument

rests on speculation about how the jury calculated damages.

         First, as discussed above, the jury could have reasonably found

undercompensation for each class member. With this finding, the jury could have

calculated damages class-wide.




                                           18
      Second, Tyson’s argument rests on speculation about how the jury

calculated damages. Such speculation is improper as long as the award is within

the range of evidence. See Questar Pipeline Co. v. Grynberg, 201 F.3d 1277,

1288-89 (10th Cir. 2000) (upholding a damage assessment that was “within the

range of evidence,” although the award was equal to the amount stated in expert

testimony that was ultimately stricken). Here, the damages award was within the

range of evidence. Thus, we cannot entertain Tyson’s speculation that the jury

might have awarded damages to some class members who had been fully

compensated.

IV.   Attorneys’ Fees

      The Fair Labor Standards Act provides a right to attorneys’ fees for

prevailing plaintiffs. 29 U.S.C. § 216(b) (2006). Based on this statute, the

district court awarded the Plaintiffs $3,389,207.41 in attorney fees. Tyson

appeals this award, raising three arguments: (1) Tyson was entitled to production

of itemized time records for Plaintiffs’ counsel; (2) the Plaintiffs were not

entitled to recover for time spent on unsuccessful federal theories or any of the

state claims; and (3) the fee award was too high given that the jury awarded only

8% of the damages that the Plaintiffs had sought in their closing argument.




                                         19
      A.     Production of Time Records

      Tyson asked the district court to compel production of itemized time

records for Plaintiffs’ counsel. The district court denied the motion, opting

instead to review the records in camera, allow each side to depose someone

familiar with the adversary’s billing, and order disclosure to the adversary of

billing rates and time incurred. The district court noted that this procedure

would: (1) eliminate time spent reviewing the numerous billing documents, and

(2) allow parties to make appropriate objections based on privilege. Tyson

obtained the information ordered by the district court, but chose not to depose

anyone familiar with the Plaintiffs’ billing.

      Tyson appeals, arguing that it could not respond meaningfully to the

Plaintiffs’ fee application without production of itemized time records. We

review the district court’s discovery decisions for abuse of discretion 8 and will

reverse only if Tyson makes a “clear showing that the denial of discovery

resulted in actual and substantial prejudice.” 9 Applying this standard, we hold

that the district court did not abuse its discretion in denying Tyson’s motion.

      Under Fed. R. Civ. P. 26(b)(2)(C), “the court must limit the frequency or

extent of discovery otherwise allowed by these rules or by local rule if it


8
      Ahrens v. Ford Motor Co., 340 F.3d 1142, 1145 (10th Cir. 2003).
9
      Davoll v. Webb, 194 F.3d 1116, 1139 (10th Cir. 1999) (quoting Gile v.
United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996)).
                                         20
determines that . . . the discovery sought . . . can be obtained from some other

source that is more convenient, less burdensome, or less expensive.”

      The district court set out to regulate discovery of fee information because

of ongoing litigation. This litigation involves a similar suit for

undercompensation at a Tyson facility in Emporia, Kansas. At Tyson’s request,

the district court bifurcated the litigation and tried the Finney County case before

the Emporia case. II Appellant’s App. at 225. The Emporia case had not yet

been tried when attorneys’ fees were sought for the Finney County case.

      With another trial looming in the Emporia case, the Plaintiffs’ attorneys

feared that production of itemized time records for the Finney County case would

reveal legal strategies and allow Tyson to adapt its defense. To avoid this risk,

the district court crafted a procedure for defense counsel to obtain summaries,

depose a representative of the Plaintiffs, and allow in camera review of the

itemized billing records. In crafting this procedure, the district court acted within

its discretion. See Mattel, Inc. v. MGA Entm’t, Inc., 705 F.3d 1108, 1111 (9th

Cir. 2013) (upholding the district court’s in camera review of unredacted attorney

invoices because they would constitute work product and the parties had other

ongoing litigation).




                                         21
      B.     Fee Recovery for Time Spent on State Claims and Unsuccessful
             Federal Claims

      Tyson argues that the Plaintiffs were not entitled to recover fees for time

spent on any of the claims under the Kansas Wage Protection Act or the

unsuccessful claims under the Fair Labor Standards Act. The Plaintiffs had

pursued three distinct theories of underpayment: (1) failure to pay for pre- and

post-shift activities; (2) failure to pay for meal times; and (3) failure to pay for

time in rest breaks. The Plaintiffs prevailed on only the first claim: failure to

pay for pre- and post-shift activities. Tyson argues that the Plaintiffs should not

have recovered fees for time spent on the state claims or the unsuccessful federal

claims involving underpayment for meal times and rest breaks. This argument is

rejected.

      We review the district court’s determination of attorneys’ fees under an

abuse-of-discretion standard. Mares v. Credit Bureau of Raton, 801 F.2d 1197,

1200-01 (10th Cir. 1986).

      “Where a lawsuit consists of related claims, a plaintiff who has won

substantial relief should not have his attorney’s fee reduced simply because the

district court did not adopt each contention raised.” Hensley v. Eckerhart, 461

U.S. 424, 440 (1983). Claims are related if they are based on “a common core of

facts” or “related legal theories.” Id. at 435; Jane L. v. Bangerter, 61 F.3d 1505,

1512 (10th Cir. 1995). Conversely, a plaintiff cannot recover fees for time spent

                                          22
on unsuccessful claims that are “distinct in all respects from his successful

claims.” Hensley, 461 U.S. at 440.

      The district court could reasonably infer a relation between: (1) the

successful federal claims, and (2) the state claims and the unsuccessful federal

claims. All were factually related and arose under a common legal theory:

failure to pay for some of the compensable time involving the donning and

doffing of protective gear. This legal theory provided the backdrop for various

claims that bore at least some connections.

      The connections can be illustrated in:

      ●      the claims under the Kansas Wage Protection Act,

      ●      the claims involving failure to compensate for meal times, and

      ●      the claims involving failure to compensate for break times.

      The first example involves the Kansas Wage Protection Act. For claims

under this law, the jury’s only task was to determine whether “Tyson failed to

compensate plaintiffs as required under the Fair Labor Standards Act.” Id. at

255. The jury’s root function was the same for both statutes, and the district

court could reasonably view the federal and state claims as interrelated.

      The second example involves the claims for compensation of meal times.

These claims involved the parts of the meal times spent getting in and out of the

protective clothing and equipment and walking to and from the production line.


                                         23
XII Appellant’s App. at 2328-29 (defense counsel); id. at 2334 (Plaintiffs’

counsel). These activities also underlie the Plaintiffs’ claims, which ultimately

prevailed, under the Fair Labor Standards Act. Because these activities were the

same, the district court could reasonably view the meal claims as interrelated with

the federal claims for pre- and post-shift activities (which ultimately triggered the

award of attorney fees).

      The third example is the Plaintiffs’ theory involving failure to compensate

for breaks during the work day. The Plaintiffs presented this theory as a separate

basis for relief, and the jury found for Tyson on this claim. But the Plaintiffs also

presented this theory as part of the federal claims for failure to pay for pre- and

post-shift activities, alleging that Tyson stopped paying for breaks when it

increased the K-Code time for pre- and post-shift activities. II Appellant’s App.

at 153. As a result, the district court could reasonably infer a relation between

the federal claims involving failure to fully pay for: (1) pre- and post-shift

activities, and (2) breaks during the work-day.

      Tyson argues that two factual and legal distinctions existed between the

successful federal claims and the claims involving meal time and break time:

      ●      the meal-time claims had an additional element (proof that the time
             spent was predominantly for the employer’s benefit), and

      ●      the break-time claims were distinct because the Plaintiffs sought
             compensation for all of the time (rather than just the time getting


                                         24
             into and out of the protective clothing) and involved a separate
             regulation (29 C.F.R. § 785.18).

      Based on these distinctions, Tyson argues that the district court should

have viewed the claims as distinct. We disagree. The issue for the district court

was not whether there were differences between the claims. Instead, the issue

was whether the district court had discretion to regard the unsuccessful meal- and

break-claims as related to the successful claims for time spent walking and

getting into and out of the protective clothing and equipment. See Hampton v.

Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1120 (10th Cir. 2001). Based on the

existing appellate record, 10 we conclude that the district court had discretion to

view the claims as interrelated: Though the claims had some factual and legal

differences, the court could reasonably conclude that the similarities justified an

award for the time spent in meals and breaks.

      The court could reasonably conclude that a relation existed between: (1)

the federal claims for pre- and post-shift activities, and (2) the state claims and

the federal claims for underpayment involving meals and breaks. Thus, the court

did not abuse its discretion in allowing the Plaintiffs to recover fees for time

spent on the state claims and the unsuccessful federal claims. See Diaz v. Robert

Ruiz, Inc., 808 F.2d 427, 429 (5th Cir. 1987) (recovery of attorneys’ fees under

the Fair Labor Standards Act includes time spent on other issues when they

10
      This record does not include the Plaintiffs’ itemized fee records.
                                           25
overlap); accord Williams v. Tri-County Growers, Inc., 747 F.2d 121, 136-37 (3d

Cir. 1984) (in determining the amount of attorneys’ fees available under the Fair

Labor Standards Act, the court must consider “the interrelated nature of the

lawsuit as a whole”), abrogated in part on other grounds, Martin v. Cooper Elec.

Supply Co., 940 F.2d 896, 908 n.11 (3d Cir. 1991).

      C.     Fee Reduction Based on a Lack of Proportion to the Damages
             Award

      Tyson argues that the district court should have reduced the fee award

because: (1) the jury awarded only 8% of the damages sought by the Plaintiffs in

closing argument, and (2) the fee award far exceeds the damages award. We

disagree.

      In Hensley v. Eckerhart, the Supreme Court held that attorneys’ fees should

vary with the degree of success obtained, but cautioned: “There is no precise rule

or formula for making these determinations. . . . The [district] court necessarily

has discretion in making this equitable judgment.” Hensley v. Eckerhart, 461

U.S. 424, 435-37 (1983). If the Plaintiffs obtained “excellent results,” they

should fully recover their fees; conversely, if the Plaintiffs achieved only “partial

or limited success,” a full fee recovery may be “excessive.” Id. at 436.

      We review the district court’s assessment of the Plaintiffs’ success for

abuse of discretion. See Flitton v. Primary Residential Mortg., Inc., 614 F.3d

1173, 1178 (10th Cir. 2010). The district court concluded that Plaintiffs’ counsel

                                         26
obtained excellent results for their clients. This conclusion fell within the district

court’s discretion. See id. at 1177-78 (upholding the district court’s decision to

award the full amount of fees requested, based on “substantial success,” even

though the plaintiff obtained only about 1.3% of the damages she had requested).

      Tyson emphasizes that the fee award far exceeded the damages award. But

the fee award need not be proportionate to the damages award. See Riverside v.

Rivera, 477 U.S. 561, 576 (1986) (plurality op.) (discussing an award of

attorneys’ fees under 42 U.S.C. § 1988). Thus, the district court acted within its

discretion even though the fee award substantially exceeded the damages award.

V.    Conclusion

      The district court did not err in denying Tyson’s motion for judgment as a

matter of law or in setting the amount of attorneys’ fees awarded to the Plaintiffs.

Therefore, we affirm.




                                         27
