Denoncour v. Barrett's of S.W. Florida, Inc. et al

Filing 34

REPORT AND RECOMMENDATION recommending that the 32 Joint Motion to Approve Settlement Agreement and to Dismiss With Prejudice be granted. Signed by Magistrate Judge Mac R. McCoy on 4/17/2017. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD DENONCOUR, an individual
Plaintiff,
v.

Case No: 2:16-cv-205-FtM-99MRM

BARRETT’S OF S.W. FLORIDA, INC. and
JOEL L. BARRETT,
Defendants.
/
REPORT AND RECOMMENDATION
Pending before the Court are the parties’ Joint Motion to Approve Settlement Agreement
and to Dismiss With Prejudice (Doc. 32) and the Wage and Hour Settlement Agreement (Doc.
32-1) filed on April 12, 2017. Plaintiff Richard Denoncour and Defendants Barrett’s of S.W.
Florida, Inc. and Joel Barrett request that the Court approve the parties’ settlement of the Fair
Labor Standards Act (“FLSA”) claim.
To approve the settlement of the FLSA claim, the Court must determine whether the
settlement is a “fair and reasonable resolution of a bona fide dispute” of the claims raised
pursuant to the Fair Labor Standards Act (“FLSA”). Lynn’s Food Store, Inc. v. United States,
679 F.2d 1350, 1355 (11th Cir. 1982); 29 U.S.C. § 216. There are two ways for a claim under
the FLSA to be settled or compromised. Id. at 1352-53. The first is under 29 U.S.C. § 216(c),
providing for the Secretary of Labor to supervise the payments of unpaid wages owed to
employees. Id. at 1353. The second is under 29 U.S.C. § 216(b) when an action is brought by
employees against their employer to recover back wages. Id. When the employees file suit, the
proposed settlement must be presented to the district court for the district court’s review and
determination that the settlement is fair and reasonable. Id. at 1353-54.

The Eleventh Circuit has found settlements to be permissible when the lawsuit is brought
by employees under the FLSA for back wages because the lawsuit
provides some assurance of an adversarial context. The employees are
likely to be represented by an attorney who can protect their rights under
the statute. Thus, when the parties submit a settlement to the court for
approval, the settlement is more likely to reflect a reasonable compromise
of disputed issues than a mere waiver of statutory rights brought about by
an employer’s overreaching. If a settlement in an employee FLSA suit
does reflect a reasonable compromise over issues, such as FLSA coverage
or computation of back wages, that are actually in dispute; we allow the
district court to approve the settlement in order to promote the policy of
encouraging settlement of litigation.
Id. at 1354.
Plaintiff began his employment with Defendants in July 2012. (Doc. 1 at ¶ 9). Plaintiff
was a sales associate and his job duties included selling products and rental equipment for
Defendants. (Id. at ¶¶ 10, 11). Plaintiff claims that Defendants violated the FLSA “by failing to
pay [Plaintiff] unpaid overtime wages.” (Doc. 32 at 1).
Even though a bona fide dispute exists between the parties, the parties decided to settle
this matter at mediation. (Doc. 32 at 1). Defendants agree to pay Plaintiff $27,684.11 for his
claims. (Doc. 32-1 at 2). The Court has reviewed the Settlement Agreement (Doc. 32-1) and
determines that the terms of the Settlement Agreement are reasonable.
Defendants agree to pay $19,815.89 in attorney’s fees. (Id. at 2). The amount of
attorney’s fees and costs were agreed upon separately, and without regard to the amount paid to
Plaintiff. (Doc. 32 at 3). As explained in Bonetti v. Embarq Management Company, 715 F.
Supp. 2d 1222, 1228 (M.D. Fla. 2009), “the best way to insure that no conflict [of interest
between an attorney’s economic interests and those of his client] has tainted the settlement is for
the parties to reach agreement as to the plaintiff’s recovery before the fees of the plaintiff’s
counsel are considered. If these matters are addressed independently and seriatim, there is no

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reason to assume that the lawyer’s fee has influenced the reasonableness of the plaintiff’s
settlement.” In Bonetti, Judge Presnell concluded that,
if the parties submit a proposed FLSA settlement that, (1) constitutes a
compromise of the plaintiff’s claims; (2) makes full and adequate disclosure of
the terms of settlement, including the factors and reasons considered in reaching
same and justifying the compromise of the plaintiff’s claims; and (3) represents
that the plaintiff’s attorneys’ fee was agreed upon separately and without regard
to the amount paid to the plaintiff, then, unless the settlement does not appear
reasonable on its face or there is reason to believe that the plaintiff’s recovery
was adversely affected by the amount of fees paid to his attorney, the Court will
approve the settlement without separately considering the reasonableness of the
fee to be paid to plaintiff’s counsel.
Id. In the instant case, a settlement was reached, and the attorney’s fees were agreed upon
without compromising the amount paid to Plaintiff. The Settlement Agreement (Doc. 32-1)
appears reasonable on its face.
IT IS RESPECTFULLY RECOMMENDED:
1) That the Joint Motion to Approve Settlement Agreement and to Dismiss With
Prejudice (Doc. 32) be GRANTED and the Wage and Hour Settlement Agreement
(Doc. 32-1) be approved by the Court as a “fair and reasonable resolution of a bona
fide dispute” of the FLSA issues.
2) The Court further recommends that if the District Court adopts this Report and
Recommendation, that the Clerk of Court be directed to dismiss this action with
prejudice, terminate all pending motions, and close the file.

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Respectfully recommended in Chambers in Fort Myers, Florida on April 17, 2017.

NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and
Recommendation’s factual findings and legal conclusions. A party’s failure to file written
objections waives that party’s right to challenge on appeal any unobjected-to factual finding or
legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir.
R. 3-1.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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