Harper et al v. Massey Energy Company
MEMORANDUM OPINION & ORDER denying the parties' 52 JOINT MOTION to file under seal their joint motion to approve settlement; granting the parties' 53 JOINT MOTION to approve the settlement. Signed by Judge John T. Copenhaver, Jr. on 6/4/2012. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
ROBERT HARPER, JR.,
MICHAEL B. JAMES,
JOHN O‟NEAL, and
Civil Action No. 2:11-cv-00305
ELK RUN COAL COMPANY, INC. and
SPARTAN MINING COMPANY,
MEMORANDUM OPINION & ORDER
Pending are the parties‟ joint motion to file under
seal their joint motion to approve settlement, and the joint
motion to approve settlement itself, filed May 30, 2012.
On May 4, 2011, plaintiffs brought suit against Massey
Energy Company for alleged violations of the Fair labor
Standards Act, 29 U.S.C. § 201 et. seq., and the West Virginia
Wage Payment and Collection Act, W. Va. Code § 21-5-1.
Specifically, plaintiffs alleged that they were entitled to
wages for unpaid overtime work as well as damages and interest
for failure to pay wages due and owing within 72 hours of
On March 15, 2012, plaintiffs filed an amended
complaint, dismissing Massey Energy and properly substituting
Elk Run Coal Company, Inc. and Spartan Mining Company as
After some discovery, the parties agreed to
voluntarily dismiss the claims of plaintiffs John O‟Neal and
On May 18, 2012, the remaining parties reached a
settlement agreement, and inasmuch as plaintiffs‟ allegations
arise under state and federal wage and hour law, seek the
court‟s approval of the settlement terms.
As summarized by the
parties in their joint motion, those terms are as follows:
Defendants will make payments to the four remaining
plaintiffs . . . in the amount of five-thousand
dollars ($5,000) each, representing lost wages,
attorney‟s fees and costs. The plaintiffs will be
responsible for any and all tax consequences.
Additionally, the plaintiffs will not seek employment
in the future with the defendants or any of their
affiliates and the terms of the agreement shall remain
confidential. In exchange, the plaintiffs, upon
advice of their attorneys, executed a general release
and waiver of claims against the defendants.
(Joint Motion, Dkt. No. 53, at 2).
Considering first the parties‟ joint motion concerning
the confidentiality of the settlement agreement, the court notes
that “[p]ublicity of [court] ... records ... is necessary in the
long run so that the public can judge the product of the courts
in a given case.”
Columbus-America Discovery Group v. Atlantic
Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000). The right of
public access to court documents derives from two separate
sources: the common law and the First Amendment.
The common law
right affords presumptive access to all judicial records and
Nixon v. Warner Comms., Inc., 435 U.S. 589, 597
(1978); Stone v. University of Md. Medical Sys. Corp., 855 F.2d
178, 180 (4th Cir. 1988).
Submitted documents within the common
law right may be sealed, however, if competing interests
outweigh the public's right of access. Nixon, 435 U.S. at 59899, 602-03; In re Knight Publishing Co., 743 F.2d 231, 235 (4th
Quoting Knight, our court of appeals has observed
Some of the factors to be weighed in the common law
balancing test “include whether the records are sought
for improper purposes, such as promoting public
scandals or unfairly gaining a business advantage;
whether release would enhance the public's
understanding of an important historical event; and
whether the public has already had access to the
information contained in the records.”
Virginia Dept. of State Police v. Washington Post, 386 F.3d 567,
575 (4th Cir. 2004) (quoting Knight, 743 F.2d at 235).
The First Amendment right of access has a more limited
scope than the common law right, having only “been
extended . . . to particular judicial records and documents.”
Stone, 855 F.2d at 180.
The First Amendment right of access
attaches if: (1) “the place and process have historically been
open to the press and general public”; and (2) “public access
plays a significant positive role in the functioning of the
particular process in question.”
PressEnterprise Co. v.
Superior Court, 478 U.S. 1, 8-9 (1986) (quoted in The Baltimore
Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989)).
The First Amendment right of access, however, provides
much greater protection to the public's right to know than the
common law right.
To avoid disclosure under the First Amendment
right of access, the movant must show “the denial [of access] is
necessitated by a compelling governmental interest, and is
narrowly tailored to serve that interest.”
Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 606-07 (1982); Press-Enterprise
Co., 478 U.S. at 15; Virginia, 386 F.3d at 573; Stone, 855 F.2d
The Fourth Circuit has further observed that:
Regardless of whether the right of access arises from
the First Amendment or the common law, it “may be
abrogated only in unusual circumstances.” When
presented with a request to seal judicial records or
documents, a district court must comply with certain
substantive and procedural requirements. As to the
substance, the district court first “must determine
the source of the right of access with respect to each
document,” because “[o]nly then can it accurately
weigh the competing interests at stake.”
Regarding procedures for handling sealing requests,
our court of appeals has noted:
First, the judicial officer must “state the reasons
for [her] decision to seal supported by specific
findings.” “The judicial officer may explicitly adopt
the facts that the government presents to justify
sealing ... [b]ut the decision to seal must be made by
the judicial officer.” Second, “the judicial officer
must consider alternatives to sealing the documents.
This ordinarily involves disclosing some of the
documents or giving access to a redacted version.”
Third, a judicial officer must give notice to the
public by docketing the order sealing the documents.
All of these procedures “must be followed when a
[judicial officer] seals judicial records or
Media General Operations, Inc. v. Buchanan, 417 F.3d 424, 435
(4th Cir. 2005) (emphasis supplied) (citations omitted).
The burden to support a sealing request rests on the
movant regardless of whether the common law or First Amendment
rights of access are in issue:
The common law presumes a right of the public to
inspect and copy “all „judicial records and
documents.‟” “This presumption of access, however, can
be rebutted if countervailing interests heavily
outweigh the public interests in access,” and “[t]he
party seeking to overcome the presumption bears the
burden of showing some significant interest that
outweighs the presumption .” ...
The burden to overcome a First Amendment right of
access rests on the party seeking to restrict access,
and that party must present specific reasons in
support of its position. See Press-Enterprise Co. v.
Superior Court, 478 U.S.1, 15 (1986) (“The First
Amendment right of access cannot be overcome by [a]
Virginia, 386 F.3d at 575 (some citations omitted).
It matters not in this case whether the defendants'
request is subject to the less rigorous common law standard or
the more rigorous First Amendment standard, for in this case the
parties have failed even to set forth significant competing
interests sufficient to heavily outweigh the public's right of
access and overcome the presumption of access to all judicial
records and documents under the common law.
As earlier noted,
the Fourth Circuit has held that the right of access “may be
abrogated only in unusual circumstances” regardless of whether
the right of access arises from the First Amendment or the
common law. Virginia, 386 F.3d at 576.
The court sees no
unusual circumstances presented by the defendants in this case
warranting the need for secrecy.
Accordingly, the parties‟
joint motion to seal must be denied.
The court now turns to the parties‟ joint motion to
approve the settlement agreement.
The FLSA was enacted for the
purpose of protecting workers from substandard wages and
oppressive working hours.
Barrentine v. Arkansas-Best Freight
System, 450 U.S. 728, 101 S. Ct. 1437, 1444 (1981).
of the FLSA are mandatory, and “FLSA rights cannot be abridged
by contract or otherwise waived because this would „nullify the
purposes' of the statute and thwart the legislative policies it
was designed to effectuate.” Id. at 1445.
Accordingly, the FLSA
permits only two avenues for compromising claims, only one of
which is relevant here:1
when employees file suit against their
employer to recover back wages, the parties must present any
proposed settlement to the district court, which may enter a
stipulated judgment after scrutinizing the settlement for
Lynn‟s Food Stores, Inc. v. United States, 679 F.2d
1350, 1352-53 (11th Cir. 1982)(citing Schulte. Inc. v. Gangi,
328 U.S. 108 (1946)).
The other method involves compromises directly supervised
by the Department of Labor.
While the Fourth Circuit has not directly addressed
the factors to consider in determining whether a settlement
reached in an FLSA case is fair and reasonable, federal courts
typically consider the fairness factors utilized in determining
court approval of class action settlements under Federal Rule of
Civil Procedure 23(e).
Lomascolo v. Parsons, 2009 WL 3094955,
at *11 (E.D. Va. Sept. 28, 2009)(collecting cases).
action factors include: (1) the extent of discovery that has
taken place, (2) the stage of the proceedings, (3) the absence
of fraud or collusion in the settlement, (4) the experience of
counsel who have represented the plaintiffs, (5) the opinions of
class counsel and class members after receiving notice of the
settlement whether expressed directly or through failure to
object, and (6) the probability of plaintiffs' success on the
merits and the amount of the settlement in relation to the
See Flinn v. FMC Corp., 528 F.2d 1169, 1173
(4th Cir. 1975); see also Lomascolo, 2009 WL 3094955 (applying
Flinn factors to FLSA settlement).
Discovery in this case has been completed; in fact
this case has reached its culmination, with trial scheduled to
The parties have, upon advice of counsel,
knowingly and voluntarily entered into the settlement agreement,
and there is no evidence of fraud or collusion.
counsel are experienced trial lawyers and litigators, no doubt
competent as to the FLSA and adequate settlement procedures.
Moreover, plaintiffs have received adequate notice of the
settlement and have not objected.
Finally, based on the
parties‟ own judgments as to the likelihood of success on the
merits and the costs of litigation, the amount of the settlement
is reasonable in relation to the potential recovery.
of these factors, the court concludes that the settlement
agreement, as a whole, is fair and reasonable.
Based on the forgoing analysis, the court ORDERS as
That the parties‟ joint motion to file under seal
their joint motion to approve settlement be, and it
hereby is, denied.
That the parties‟ joint motion to approve the
settlement be, and it hereby is, granted.
The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
June 4, 2012
John T. Copenhaver, Jr.
United States District Judge
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