United States District Court, D. Kansas
ASHLEY FOSTER, individually and on behalf of other similarly situated persons, Plaintiffs,
ROBERT BROGDEN'S OLATHE BUICK GMC, INC., Defendant.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
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).
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,
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.
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.
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, 679 F.2d at 1354).
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 *3 (D. Kan.
Jan. 5, 2011)).
Attorneys' Fees Under the FLSA
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).
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
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
*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)).
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
FLSA Collective Action ...