United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court a motion to approve an FLSA
settlement agreement filed by Plaintiff and Defendant Applied
Flooring, Inc., providing for $10, 000 to be paid to
Plaintiff ($700 for unpaid overtime wages and $9, 300 to his
counsel (fees/costs)). (Docs. 36, 36-1).
Lynn's Food Stores, Inc. v. United States ex rel.
Dep't of Labor, Emp. Standards Admin., Wage & Hour
Div., 679 F.2d 1350, 1352-1355 (11th Cir.
1982), the Eleventh Circuit recognized two (2) methods for
settlement of claims brought pursuant to the FLSA:
supervision by the Secretary of Labor; or court approval in a
private action where a plaintiff is represented by counsel.
As to the latter, which applies here, the parties may
compromise and settle the FLSA claims but only with Court
approval of the settlement agreement.
courts must determine whether the settlement is a “fair
and reasonable resolution of a bona fide dispute” of
the FLSA claims. Lynn's Food Stores, 679 F.2d at
1352-1355; Dees v. Hydradry, Inc., 706 F.Supp.2d
1227, 1238-1239 (M.D. Fla. 2010). Evaluating the fairness of
an FLSA compromise includes an assessment of: 1) the
existence of fraud or collusion behind the settlement; 2) the
complexity, expense and likely duration of the litigation; 3)
the stage of the proceedings and amount of discovery
completed; 4) the probability of plaintiff's success on
the merits; 5) the range of possible recovery; and 6) the
opinions of the counsel. Dees, 706 F.Supp.2d at
1241. Additionally, the FLSA “contemplates that
‘the wronged employee should receive his full wages
plus the penalty without incurring any expense for legal fees
or costs.'” Silva v. Miller, 307 Fed.Appx.
349, 351 (11th Cir. 2009). “When a
settlement agreement includes….attorney's fees and
costs, the ‘FLSA requires judicial review of the
reasonableness of counsel's legal fees to assure both
that counsel is compensated adequately and that no conflict
of interest taints the amount the wronged employee recovers
under a settlement agreement.'" Id.
Moreover, 29 U.S.C. § 216(b) provides that
“...[a]ny employer who violates…shall be liable
to the employee….affected in the amount
of….their unpaid overtime compensation….and in
an additional equal amount as liquidated damages...The
court…shall, in addition to any judgment awarded to
the plaintiff…allow a reasonable attorney's fee to
be paid by the defendant, and costs of the action.”
Thus, “in any case where a plaintiff agrees to accept
less than his full FLSA wages and liquidated damages, he has
compromised his claim within the meaning of Lynn's
Food Stores.” Vergara v. Delicias Bakery &
Restaurant, Inc., 2012 WL 2191299, *1 (M.D. Fla. May 31,
Bona Fide Dispute and Fair and Reasonable
court may approve a compromise resolving a bona fide dispute
over FLSA provisions where a plaintiff's compromise of
his claims (the settlement agreement) is a fair and
reasonable resolution of that dispute. Lynn's
Food, 679 F.2d at 1352-1355; Dees, 706
F.Supp.2d at 1238-1239. This means that "the parties
requesting review of an FLSA compromise must provide enough
information for the court to examine the bona fides of the
dispute." Dees, 706 F.Supp.2d at 1241. Based on
a review of the docket, the motion and attached proposed
settlement agreement, the Court finds a bona fide dispute as
to whether Applied is Plaintiff's employer and whether
Plaintiff was already paid. Additionally, the parties agree
that the terms of settlement are fair, reasonable and resolve
a bona fide dispute between them with respect to liability
and damages under the FLSA. Moreover, the parties agree that
both sides compromised their positions. Further, the
settlement terms do not appear to contain any disfavored
provisions that encumber approval of any FLSA settlement
agreement (e.g., pervasive release, confidentiality, future
employment waiver, etc.).
Attorneys' Fees & Costs/Expenses
actions, courts rely on the lodestar method for determining
the reasonableness of the fees sought. Padurjan v.
Aventura Limousine & Transp. Serv., Inc., 441
Fed.Appx. 684 (11th Cir. 2011); Perez v. Carey
Int'l, Inc., 373 Fed.Appx. 907 (11th Cir.
2010); Norman v. Alorica, Inc., 2012 WL 5452196
(S.D. Ala. Nov. 7, 2012); Wolff v. Royal Am. Mgt.,
Inc., 2012 WL 5303665 (S.D. Ala. Oct. 25, 2012). Under
the lodestar method, courts multiply the number of hours
reasonably expended by a reasonable hourly rate for similar
legal services. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Resolution Trust Corp. v. Hallmark Builders,
Inc., 996 F.2d 1144, 1147, 1150 (11th Cir.
1993). Adjustments may be made "as necessary[.]"
Blum v. Stenson, 465 U.S. 886, 888
(1984).”Moreover, the FLSA requires that the
“court in such action shall….allow a reasonable
attorney's fee….and costs of the action.” 29
U.S.C. § 216(b). Further, the “FLSA requires
judicial review…to assure both that counsel is
compensated adequately and that no conflict of interest
taints the amount the wronged employee recovers under a
settlement agreement.” Silva, 307 Fed.Appx. at
352; Czopek v. Tbc Retail Group., Inc., 2016 WL
7116112, at *5 (M.D. Fla. Nov. 7, 2016), report and
recommendation adopted, 2016 WL 7104187 (M.D. Fla. Dec.
6, 2016) (same). Courts thus consider whether the fees were
negotiated separately and apart from a plaintiff's
settlement of the FLSA claims. Wing v. Plann B
Corp., 2012 WL 4746258, *4 (M.D. Fla. Sept. 17, 2012)
report and recommendation adopted, 2012 WL 4746190
(M.D. Fla. Oct. 4, 2012) (where there is a reasonable basis
for compromise and “Plaintiff's claims were
resolved separately and apart from the issue of
attorneys' fees…there is no reason to believe that
Plaintiff's recovery was adversely affected by the amount
of fees and costs to be paid to Plaintiff's
is insufficient information before the Court to conduct a
lodestar analysis to determine the reasonableness of the
attorneys' fees/costs requested (i.e., no billing
records, no invoices for costs/expenses, no discussion of the
reasonableness factors, etc.). The billing attorneys have not
even been properly identified to the Court (e.g., "the
associate attorney has over 13 hours in this
case…"). (Doc. 36 at 4). Moreover, the billing
rates are described as "consistent with what counsel has
been awarded in their legal community"
(Florida), providing no information as to whether the rates
are reasonable in the relevant legal community
there is no representation that the settlement was negotiated
separately from counsel's fees and costs and thus had no
impact on Plaintiff's total recovery. Lyons
v. Beef O' Brady's, 2015 WL 5602452, *3 (S.D.
Ala. Sept. 23, 2015). See also e.g.,
Czopek, 2016 WL 7116112, *5; Wing, 2012 WL
4746258, *4; Bonetti v. Embarq Mgt, Co., 2009 WL
2371407 (M.D. Fla. Aug. 4, 2009) (discussing the need for
such representation by the parties on the record before
approving FLSA settlements).
settlement agreement is signed by Express. Express was
dismissed as a party on December 5, 2017 (Doc. 28) and the
Court has no jurisdiction over Express. In this posture, the
Court will not approve a settlement that releases Express
from FLSA related claims.
filing parties move that, upon approval of the FLSA
settlement agreement, the Court retain jurisdiction to
enforce its terms. (Doc. 36-1 at 7). As noted in Goldsby
v. Renosal Seating, LLC, 294 F.R.D. 649, 654 (S.D. Ala.
2013): "[a]s a general rule, this Court does not retain
jurisdiction to enforce the terms of any settlement
agreement. Moreover, [as here] the parties….did not
provide…any factual or legal basis for the Court to