Barbaro v. The Car Store of West Orange, Inc. et al

Filing 22

REPORT AND RECOMMENDATIONS re 21 Renewed Joint Motion for Review and Approval of Settlement. It is RECOMMENDED that: 1. The Motion (Doc. No. 21) be GRANTED; and 2. The Court DISMISS the case with prejudice. A party has fourteen days from thi s 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 findin g or legal conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3-1. To expedite the final disposition of this matter, if the parties have no objection to this Report and Recommendation, they may promptly file a joint notice of no objection. Signed by Magistrate Judge Gregory J. Kelly on 2/8/2018. (MB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSEPH BARBARO,
Plaintiff,
v.

Case No: 6:17-cv-1540-Orl-40GJK

THE CAR STORE OF WEST ORANGE,
INC., and TODD PAQUETTE,
Defendants.

REPORT AND RECOMMENDATION
This cause came on for consideration without oral argument on the following motion:
MOTION:

RENEWED JOINT MOTION FOR REVIEW AND
APPROVAL OF SETTLEMENT (Doc. No. 21)

FILED:

February 6, 2018

THEREON it is RECOMMENDED that the motion be GRANTED.
I.

BACKGROUND.

On August 23, 2017, Plaintiff filed a Complaint against Defendants alleging a violation of
the overtime provisions of the Fair Labor Standards Act. Doc. No. 1. On February 5, 2018, the
parties filed a Joint Motion for Review and Approval of Settlement. Doc. No. 19. On February 6,
2018, the Court denied the motion to approve the settlement agreement and directed the parties to
file a renewed motion. Doc. No. 20. On that same date, the parties filed a “Renewed Joint Motion
for Review and Approval of Settlement” (the “Motion”). Doc. No. 21. The Motion was referred to
the undersigned for a report and recommendation. For the reasons that follow, it is recommended

that the Motion be granted.
II.

LAW.
In Lynn’s Food Stores, Inc. v. United States Department of Labor, 679 F.2d 1350 (11th

Cir. 1982), the Eleventh Circuit addressed the means by which an FLSA settlement may become
final and enforceable:
There are only two ways in which back wage claims arising under
the FLSA can be settled or compromised by employees. First,
under section 216(c), the Secretary of Labor is authorized to
supervise payment to employees of unpaid wages owed to them . . .
. The only other route for compromise of FLSA claims is provided
in the context of suits brought directly by employees against their
employer under section 216(b) to recover back wages for FLSA
violations. When employees bring a private action for back wages
under the FLSA, and present to the district court a proposed
settlement, the district court may enter a stipulated judgment after
scrutinizing the settlement for fairness.
Thus, unless the parties have the Secretary of Labor supervise the payment of unpaid wages owed
or obtain the Court’s approval of the settlement agreement, the parties’ agreement is
unenforceable. Id. Before approving an FLSA settlement, the Court must scrutinize it to determine
if it is a fair and reasonable resolution of a bona fide dispute. Id. at 1354-55. If the settlement
reflects a reasonable compromise over issues that are actually in dispute, the Court may approve
the settlement. Id. at 1354.
In determining whether the settlement is fair and reasonable, the Court should consider the
following factors:
(1) the existence of collusion behind the settlement;
(2) the complexity, expense, and likely duration of the litigation;
(3) the stage of the proceedings and the 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 counsel.

-2-

See Leverso v. SouthTrust Bank of Ala., Nat’l Assoc., 18 F.3d 1527, 1531 n.6 (11th Cir. 1994);
Hamilton v. Frito-Lay, Inc., Case No. 6:05-cv-592-Orl-22JGG, 2007 WL 328792, at *2 (M.D. Fla.
Jan. 8, 2007), report and recommendation adopted, 2007 WL 219981 (M.D. Fla. Jan. 26, 2007).
The Court should be mindful of the strong presumption in favor of finding a settlement fair. See
Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). 1
In FLSA cases, the Eleventh Circuit has questioned the validity of contingency fee
agreements. Silva v. Miller, 307 F. App’x 349, 351 (11th Cir. 2009) (citing Skidmore v. John J.
Casale, Inc., 160 F.2d 527, 531 (2d Cir. 1947) (“We have considerable doubt as to the validity of
the contingent fee agreement; for it may well be that Congress intended that an employee’s
recovery should be net[.]”)). 2 In Silva, the Eleventh Circuit stated:
That Silva and Zidell entered into a contingency contract to establish
Zidell’s compensation if Silva prevailed on the FLSA claim is of
little moment in the context of FLSA. 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. FLSA provides for reasonable attorney’s fees; the
parties cannot contract in derogation of FLSA’s provisions. See
Lynn’s Food, 679 F.2d at 1352 (“FLSA rights cannot be abridged
by contract or otherwise waived.”) (quotation and citation omitted).
To turn a blind eye to an agreed upon contingency fee in an amount
greater than the amount determined to be reasonable after judicial
scrutiny runs counter to FLSA’s provisions for compensating the
wronged employee. See United Slate, Tile & Composition Roofers
v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 504 (6th Cir.
1984) (“the determination of a reasonable fee is to be conducted by
the district court regardless of any contract between plaintiff and
plaintiff’s counsel”); see also Zegers v. Countrywide Mortg.
Ventures, LLC, 569 F.Supp.2d 1259 (M.D. Fla. 2008).

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September
30, 1981.
2
In this circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.” 11th Cir. R. 36-2.

-3-

Id. at 351-52. For the Court to determine whether the proposed settlement is reasonable, plaintiff’s
counsel must first disclose the extent to which the FLSA claim has or will be compromised by the
deduction of attorney’s fees, costs or expenses pursuant to a contract between the plaintiff and
counsel, or otherwise. Id. When a plaintiff receives less than a full recovery, any payment from
plaintiff’s recovery above a reasonable fee improperly detracts from the plaintiff’s recovery. 3
Thus, a potential conflict can arise between counsel and client regarding how much of the
plaintiff’s total recovery should be allocated to attorney’s fees and costs. 4 It is the Court’s
responsibility to ensure that any such allocation is reasonable. Id. As the Court interprets the Lynn’s
Food Stores, Inc. and Silva cases, where there is a compromise of the amount due to the plaintiff,
the Court should decide the reasonableness of the attorney’s fees provision under the parties’
settlement agreement using the lodestar method as a guide. In such a case, any compensation for
attorney’s fees beyond that justified by the lodestar method is unreasonable unless exceptional
circumstances would justify such an award.
An alternative means of demonstrating the reasonableness of attorney’s fees and costs was
set forth in Bonetti v. Embarq Management Co., 715 F. Supp. 2d 1222 (M.D. Fla. 2009). In Bonetti,
the Honorable Gregory A. Presnell held:
In sum, 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

3

From a purely economic standpoint, a defendant is largely indifferent as to how its settlement proceeds are divided
as between a plaintiff and counsel. Where a plaintiff is receiving less than full compensation, payment of fees
necessarily reduces the plaintiff’s potential recovery.
4
This potential conflict is exacerbated in cases where the defendant makes a lump sum offer which is less than full
compensation, because any allocation between fees and the client’s recovery could become somewhat arbitrary.

-4-

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. at 1228 (emphasis added). Judge Presnell maintained that if the matter of attorney’s fees “[is]
addressed independently and seriatim, there is no reason to assume that the lawyer’s fee has
influenced the reasonableness of the plaintiff’s settlement.” Id. The undersigned finds this
reasoning persuasive.
III.

ANALYSIS.
A.

Settlement Amount.

Plaintiff claimed $26,245.38 in damages for unpaid overtime wages plus an equal amount
in liquidated damages. Doc. No. 14-1 at 2. Under the Settlement Agreement, Plaintiff will receive
$12,000.00 for his claims for unpaid overtime wages, plus $12,000.00 as liquidated damages as
consideration for a release of his FLSA claim. 5 Doc. No. 21-1 at 2, 3. Since Plaintiff is receiving
less than the amount he claimed, Plaintiff has compromised his claims under the FLSA. See
Caseres v. Texas de Brazil (Orlando) Corp., 6:13-cv-1001-Orl-37KRS, 2014 WL 12617465, at *2
(M.D. Fla. April. 2, 2014) (“Because [plaintiff] will receive under the settlement agreement less
than she averred she was owed under the FLSA, she has compromised her claim within the
meaning of Lynn’s Food Stores.”).
The case involves disputed issues regarding FLSA liability, which constitutes a bona fide
dispute. Doc. No. 21 at 3. The parties disagreed regarding whether Plaintiff is entitled to receive
any additional payment for overtime hours, the number of unpaid overtime hours, and whether
Plaintiff is entitled to liquidated damages. Id. After receiving sufficient information to make

5

Defendants will make the payments in equal monthly installments. Doc. No. 21-1 at 2.

-5-

informed decisions, the parties decided to settle their dispute in order to avoid the risk of litigation.
Id. at 3-4. Considering the foregoing, and the strong presumption favoring settlement, the
undersigned finds the settlement amount to be fair and reasonable.
B.

Attorney’s Fees and Costs.

Under the Settlement Agreement, Plaintiff’s counsel will receive $8,500.00 in attorney’s
fees and costs. Doc. No. 21-1 at 2. The parties represent that attorney’s fees and costs were
negotiated separately from Plaintiff’s recovery. Doc. No. 21 at 4. Such a representation adequately
establishes that the issue of attorney’s fees and costs was agreed upon without regard to the amount
paid to Plaintiff. See Bonetti, 715 F. Supp. 2d at 1228. Accordingly, pursuant to Bonetti, the
undersigned finds the Settlement Agreement’s attorney’s fee provision to be fair and reasonable.
IV.

CONCLUSION.
Accordingly, it is RECOMMENDED that:
1. The Motion (Doc. No. 21) be GRANTED; and
2. The Court DISMISS the case with prejudice.
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. 11th Cir. R. 3-1.
To expedite the final disposition of this matter, if the parties have no objection to this Report

-6-

and Recommendation, they may promptly file a joint notice of no objection.
RECOMMENDED in Orlando, Florida, on February 8, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

-7-