United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
on behalf of themselves and others similarly situated, filed
this lawsuit under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201- 219,
alleging unlawful pay practices against defendants KC Lodge
Ventures LLC, et al. Doc. 29. This matter comes before the
court on plaintiffs' Unopposed Motion to Grant Final
Certification and Approve Collective Action Settlement (Doc.
73) and plaintiffs' Unopposed Motion for Approval of
Award of Attorneys' Fees in Conjunction with Settlement
own and operate Twin Peaks franchise restaurants in Kansas
and Missouri. Plaintiff Alyssa Nida is a former Twin Peaks
employee. She represents a collective class of current and
former employees (“Twin Peaks plaintiffs”) who
have filed a putative collective action claim for alleged
FLSA violations. They assert that defendants (1) failed to
pay Twin Peaks plaintiffs for all hours worked; (2) failed to
compensate Twin Peaks plaintiffs for the cost of their
uniforms and other image and costume standards; and (3)
failed to ensure servers made minimum wage after mandatory
individually and on behalf of others similarly situated,
filed a Complaint against defendants on May 17, 2017. The
parties participated in an unsuccessful mediation session on
January 22, 2018. Plaintiff then filed an amended complaint,
and defendants filed an answer and asserted various
affirmative defenses. The parties proceeded with discovery
from March to July 2018. On August 31, 2018, the parties
filed a joint motion stipulating to conditional collective
action certification and asked the court to approve the
parties' eventual stipulation for conditional
September 10, 2018, the court conditionally certified
plaintiffs' claims as a collective action under 29 U.S.C.
§ 216(b), and authorized notice to all current and
former servers, bartenders, and hostesses employed by any
defendant at any time since June 6, 2015. Plaintiffs mailed
the court-approved notice to putative class members. The
notice advised them of their right to join the case and
advised those who elected to join of the terms and conditions
of class membership:
If you choose to join this lawsuit, . . . you will be bound
by any ruling, settlement, or judgment, whether favorable or
unfavorable, on the claims asserted. By joining this lawsuit,
you designate the Named Plaintiff as your representative, and
to the fullest extent possible, to make decisions on your
behalf concerning the case, the method and manner of
conducting the case, the entering of an agreement with
Plaintiff's counsel regarding payment of attorneys'
fees and court costs, the approval of settlements, and all
other matters pertaining to this lawsuit.
Doc. 54-1 at 3 (¶ 9). The Notice also advised:
If you choose not to join this lawsuit, you will not be
affected by any ruling, judgment, or settlement rendered on
the claims asserted in this case, whether favorable or
Id. (¶ 10).
plaintiffs' counsel required putative opt-in plaintiffs
to file a consent form. The court-approved consent form
I hereby consent to be a party plaintiff seeking unpaid wages
against [Defendants] . . . . I designate the Named Plaintiff
to make all decisions on my behalf concerning the method and
manner of conducting the case including settlement, the
entering of an agreement with Plaintiffs' counsel
regarding payment of attorneys' fees and court costs, and
all other matters pertaining to this lawsuit. For purposes of
this lawsuit, I choose to be represented by Foulston Siefkin
LLP and other attorneys with whom they may associate.
Id. at 5.
conditional certification, 102 Twin Peaks plaintiffs filed
consent forms and joined the case as opt-in plaintiffs.
Through discovery and a separate agreement on the conditional
certification process, the parties exchanged documents and
electronically stored information about defendants'
uniform requirements and payroll, timekeeping, and personnel
records for every plaintiff.
February 21, 2019, the parties participated in a mediation
session with mediator Dennis Gillen. After a full day of
mediation, the parties reached a settlement agreement. The
parties later executed a Settlement Agreement and Release of
Claims (“the Settlement Agreement”) memorializing
the terms of their settlement. Doc. 73-1. All opt-in
plaintiffs have received notice of the terms of the
settlement, and none have objected. The parties have
submitted the Settlement Agreement to the court with
plaintiffs' unopposed motion seeking approval of the
the terms of the Settlement Agreement, defendant has agreed
to pay a total of $300, 000.00 (the “Settlement
Fund”), which will be allocated as follows:
1. No more than $15, 000 to representative plaintiff as a
2. No more than $133, 000 in attorneys' fees; and
3. The remainder-$152, 000- to the 102 collective action
members distributed on a pro rata basis.
exchange, the Twin Peaks plaintiffs have agreed to release
any claims under state and federal wage and hour laws, and
any claims under state wage payment laws from the same facts
as those asserted in this case. Also, named plaintiff has
signed a general release of all claims against defendants.
Settlement Agreement provides for a pro rata
distribution of the Settlement Fund to each collective action
member who consented to join this lawsuit. Plaintiffs'
counsel developed a formula accounting for each
plaintiff's total period of employment, number of shifts
worked, and average hourly wage. Plaintiffs who had worked
for a shorter period of time will receive a smaller amount
for uniform reimbursement, and those who worked for a longer
period will receive more. The portion of the settlement for
unpaid meeting time is allocated based on the number of
shifts each plaintiff had worked.
will pay the Settlement Fund in four installments. Defendants
will pay one-half of the total amount after the court
approves the settlement. They will pay the remaining one-half
in three subsequent equal installments. All amounts will be
allocated on a pro rata basis across the overall
payment timeline (meaning that the named plaintiff, opt-in
plaintiffs, and plaintiffs' counsel will receive their
portions of the Settlement Fund at the same time).
FLSA Collective Action Settlement
parties to an FLSA action must present a settlement of those
claims to the court for review and a determination that the
settlement is fair and reasonable. Barbosa v. Nat'l
Beef Packing Co., LLC., No. 12-2311-KHV, 2015 WL
4920292, at *3 (D. Kan. Aug. 18, 2015) (citing Lynn's
Food Stores, Inc. v. United States, 679 F.2d 1350, 1353
(11th Cir. 1982)). “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.” Id.
(citing Lynn's Food Stores, Inc., 679 F.2d at
court may enter a stipulated judgment in an FLSA action
“only after scrutinizing the settlement for
fairness.” Id. (citing Peterson v. Mortg.
Sources, Corp., No. 08-2660-KHV, 2011 WL 3793963, at *4
(D. Kan. Aug. 25, 2011)); see also Tommey v. Comput.
Scis. Corp., No. 11-CV-02214-EFM, 2015 WL 1623025, at *1
(D. Kan. Apr. 13, 2015) (citation omitted). “If the
settlement reflects a reasonable compromise over issues such
as FLSA coverage or computation of back wages that are
actually in dispute, the Court may approve the settlement to
promote the policy of encouraging settlement of
litigation.” Gambrell v. Weber Carpet, Inc.,
No. 10-2131-KHV, 2012 WL 5306273, at *2 (D. Kan. Oct. 29,
2012) (citing Lynn's Food Stores, 679 F.2d at
when parties settle FLSA claims before the court has made a
final certification ruling, the court must make a final class
certification finding before it can approve an FLSA
collective action settlement. Barbosa, 2015 WL
4920292, at *3 (citing McCaffrey v. Mortg. Sources,
Corp., No. 08-2660-KHV, 2011 WL 32436, at *2 (D. Kan.
Jan. 5, 2011)).
Attorney's Fees Under the FLSA
FLSA requires the parties to include in the settlement
agreement an award of reasonable attorney's fees and the
costs of the action. 29 U.S.C. § 216(b); see also
McCaffrey, 2011 WL 32436, at *2 (citing Lee v. The
Timberland Co., No. C 07-2367-JF, 2008 WL 2492295, at *2
(N.D. Cal. June 19, 2008)). The court has discretion to
determine the amount and reasonableness of the fee, but a
FLSA fee award is mandatory. Barbosa, 2015 WL
4920292, at *3 (citations omitted).
have filed an Unopposed Motion to Grant Final Certification
and Approve Collective Action Settlement. Doc. 73. Plaintiffs
also have filed an Unopposed Motion for Approval of Award of
Attorneys' Fees in Conjunction with Settlement. Doc. 74.
In their motions, plaintiffs ask the court to certify a final
collective action, approve the settlement as fair and
reasonable, and award the proposed attorneys' fees and
costs in an amount equal to 40 percent of the settlement.
Doc. 74 at 2. The court addresses these requests, in turn,
Final Collective Action Certification
the parties have settled their FLSA claims before the court
made a final certification ruling, the court must enter a
final class certification finding before it can approve the
settlement. See Barbosa, 2015 WL 4920292, at *3
(citing McCaffrey, 2011 WL 32436, at *2). The FLSA
provides that an employee may bring a collective action on
behalf of other employees who are “similarly
situated.” 29 U.S.C. § 216(b). To determine
whether plaintiffs are “similarly situated” for
purposes of final collective action certification, the court
considers several factors. They include: “(1) the
disparate factual and employment settings of individual
plaintiffs; (2) various defenses available to defendant[s]
which appear to be individual to each plaintiff; and (3)
fairness and procedural considerations.”
Gambrell, 2012 WL 5306273, at *3 (citing
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102-03 (10th Cir. 2001)).
ask the court to certify a final collective action. The
parties agree that the plaintiffs are similarly situated and
that final certification is warranted. But the court still
must examine ...