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McFeeters v. Brand Plumbing, Inc.

United States District Court, D. Kansas

December 18, 2017

DUANE MCFEETERS, on behalf of himself and all others similarly situated, Plaintiff,



         Plaintiff Duane McFeeters, and opt-in Plaintiff Jordan Dreiling, bring a claim against Defendant Brand Plumbing, Inc. (“Brand Plumbing”) under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Plaintiffs request that this Court (1) finally certify this action as a collective action; (2) approve the settlement of Plaintiffs' claims with Defendant; and (3) approve Plaintiffs' attorneys' fees request (Doc. 44). Defendant does not oppose Plaintiffs' motion. For the reasons set forth below, the Court grants Plaintiffs' motion.

         I. Factual and Procedural Background[1]

         Plaintiff Duane McFeeters brought this FLSA case on May 3, 2016. McFeeters was employed by Defendant as a plumber's helper from September 2, 2008 to April 29, 2016. He filed this lawsuit, on behalf of himself and all others similarly situated, alleging that Defendant violated the FLSA by failing to pay its employees overtime premiums for travel time.

         In early 2017, this Court granted McFeeters' request for conditional class certification. McFeeters sent notices to potential class members and only received one opt-in request. Jordan Dreiling, the opt-in Plaintiff, worked for Defendant in 2016 as a plumber and was paid on an hourly basis.

         Defendant denied Plaintiffs' allegations. Had the litigation proceeded, Defendant would have asserted that, pursuant to its policies, its employees were prohibited from working overtime without prior approval from their supervisor and were responsible for submitting accurate time records for compensation on a weekly basis. Defendant has no records indicating that McFeeters or Dreiling had unpaid but compensable time. In addition, Defendant would have asserted that the time spent by McFeeters or Dreiling as a passenger traveling to and from a job site is not compensable under the FLSA. Finally, Defendant would have challenged Plaintiffs' methods (or assumptions) to calculate their alleged claims.

         In August 2017, the parties reached an agreement to settle the claims asserted in the Complaint. Pursuant to the proposed settlement agreement, Defendant agreed to pay (1) $5, 320.00 to McFeeters, (2) $1, 209.20 to Dreiling, and (3) $8, 851.00 in attorneys' fees to Plaintiffs' counsel.

         McFeeters originally calculated his damages at $11, 250.00. During settlement negotiations, however, he assumed that he spent approximately 1.6 hours per week traveling between Defendant's office and his job sites for which he was not compensated. Over the three year class period, McFeeters calculated that it amounted to 249 hours with unpaid wages of $3, 984.00. McFeeters assumed that he would have been owed overtime for approximately 166 hours amounting to $1, 328.00 and doubled for liquidated damages to $2, 656.00. Thus, McFeeters calculated his total damages to be $6, 640.00. Under the proposed settlement, McFeeters will receive $5, 320.00, or approximately 80% of his total claim.

         Dreiling calculated his damages in a similar manner. During the 17 weeks that he worked for Defendant, he believed that he had $1020.00 in unpaid wages, overtime wages at $199.30, and liquidated damages of $398.40. Thus, Dreiling's total damages were estimated to be $1, 418.40. Under the proposed settlement, Dreiling will receive $1, 209.20, or approximately 85% of his total claim.

         The parties originally filed a Joint Motion to Approve Settlement of Plaintiffs' FLSA Claims (Doc. 42). This Court denied the parties' motion without prejudice to refiling finding that certain issues were not adequately addressed. Specifically, the parties did not request to certify a final collective action which is a necessary requirement prior to approving an FLSA settlement. In addition, the Court expressed skepticism of the attorneys' fees request because the attorneys' fee portion of the settlement seemed excessive.[2]

         Plaintiff has now filed an unopposed Motion for Final Class Certification of Class Claims under § 216(b) of the FLSA, Approval of Settlement, and Approval or Plaintiffs' Attorney Fees (Doc. 44). In addition, Plaintiffs' counsel submitted a fee statement that reflected time and expenses. The fee statement provides that a total of 32.20 hours were expended on this case through August 11, 2017, and reflects four individual's work. The pay ranged from $95 an hour to $325 an hour. The total amount of the fee statement equals $9, 653.00. In addition to this fee statement, attorney Donald Peterson submitted an affidavit in which he avers that there were two additional expenses (not included on the fee statement) of $400 for the filing fee and $198.13 for running location searches to find potential class members. Thus, the total fees and expenses were $10, 251.13.

         As noted above, Plaintiffs' counsel seeks attorneys' fees and expenses in the amount of $8, 851.00. They state that as part of the proposed settlement, Plaintiffs' counsel agreed to accept that amount, which is more than a $1, 400 reduction from the total fees and expenses actually incurred. In addition, Plaintiffs' counsel does not include the time spent from August 11, 2017, through the present in finalizing the settlement as part of the request for attorneys' fees.

         II. Legal Standard

         A settlement of claims under the FLSA must be presented to the Court for review and determination of whether the settlement is fair and reasonable.[3] To approve an FLSA settlement, “the Court must find that the litigation involves a bona fide dispute and that the proposed settlement is fair and equitable to all parties concerned.”[4] “The Court may enter a stipulated judgment only after scrutinizing the settlement for fairness.”[5] The settlement agreement must also contain an award of attorneys' fees.[6] Furthermore, when parties settle FLSA claims before the Court has made a final certification ruling, the Court must make some final class certification finding before it can approve a collective action settlement.[7]

         III. ...

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