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Foster v. Robert Brogden's Olathe Buick GMC, Inc.

United States District Court, D. Kansas

December 10, 2019

ASHLEY FOSTER, individually and on behalf of other similarly situated persons, Plaintiffs,
v.
ROBERT BROGDEN'S OLATHE BUICK GMC, INC., Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff Ashley Foster, individually on behalf of herself and others similarly situated, filed this lawsuit against defendant Robert Brogden's Olathe Buick GMC, Inc. She alleges that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219. Doc. 1. This matter comes before the court on the parties' “Joint Motion for Approval [ ] of Fair Labor Standards Act Settlement” (Doc. 62).

         The court denies the motion because the parties haven't submitted information sufficient for the court to make a final class certification finding. But the court does so without prejudice to the parties' refiling of a renewed motion containing the required information. The court orders the parties to file a renewed motion by December 20, 2019.

         I. Background

         Plaintiff is defendant's former employee. She represents a collective class of employees who have filed a putative collective action claim for alleged FLSA violations. They assert that defendant failed to record accurately all time that hourly employees worked, and arbitrarily deducted hours allegedly not worked.

         Plaintiffs filed their Complaint on February 15, 2017. Doc. 1. The parties participated in mediation on November 21, 2017 and reached an agreement to resolve the collective action claims. Doc. 62-1 at 2. The parties later executed a Settlement and Release Agreement (“the Settlement Agreement”) memorializing the terms of their settlement. Doc. 62-1. On July 31, 2018, the court conditionally certified the collective action. Doc. 43 at 15. On February 28, 2019, the court preliminarily approved the Settlement Agreement as fair and reasonable. Doc. 55 at 11. And, the court provided the parties with instructions to satisfy the remaining steps before final approval of their agreement. See generally Doc. 55. The parties' current motion asks the court to approve the settlement. But, the parties do not address final class certification. And, as explained in the February 2019 Order and the July 2018 Order, the court has not made a final class certification finding. Id. at 13; Doc. 43 at 5.

         II. Legal Standard

         A. FLSA Collective Action Settlement

         The 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, 679 F.2d at 1354).

         The 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 1354).

         Also, 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 *3 (D. Kan. Jan. 5, 2011)).

         B. Attorneys' Fees Under the FLSA

         The FLSA requires the parties to include in the settlement agreement an award of reasonable attorneys' 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 *4 (citations omitted).

         III. Analysis

         The parties have filed a joint motion, asking the court to approve their collective action settlement. But the parties have not provided enough information for the court to approve the Settlement Agreement. For reasons explained below, the court denies final collective action certification. Next, the court preliminarily approves the proposed Settlement Agreement, but reduces the service award for the named plaintiff to $520. Finally, the court preliminarily approves the requested $4, 000 in attorneys' fees for plaintiffs' counsel.

         A. Final Collective Action Certification

         Because 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 *3). 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 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, 1103 (10th Cir. 2001)).

         The court granted conditional class certification on July 31, 2018. Doc. 43 at 5. In that Memorandum and Order, the court noted that before it could approve the parties' collective action settlement, the parties must present facts capable of supporting final certification under Thiessen's three factors. Id. On February 28, 2019, the court denied the parties' request to certify the collective class. Doc. 55 at 13. The parties' current motion does not address final certification. It does properly establish that 14 class members now have been notified and ten have opted-in. Doc. 62 at 3. Still, the court cannot approve the settlement without a making a final class certification finding under the three Thiessen factors. So, the court denies the parties' joint motion seeking approval of the settlement but without prejudice to refiling. The parties are directed to submit information to the court about “(1) the disparate factual and employment settings of individual plaintiffs; (2) various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations.” Gambrell, 2012 WL 5306273, at *3 (citing Thiessen, 267 F.3d at 1103).

         B. FLSA Collective Action ...


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