Perry v. M/I Homes, Inc.

Filing 103

ORDER: The report and recommendation of the Honorable Anthony E. Porcelli, United States Magistrate Judge 89 is adopted in part. The parties shall advise the Court, in writing, within ten days of the date of this order, as to how they would like to proceed, consistent with the foregoing analysis. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/26/2010. (KAK)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JEFF PERRY, ET AL., Plaintiffs, v. M/I HOMES, INC., Defendant. ______________________________/ ORDER This matter is before the Court upon consideration of the report and recommendation of the Honorable Anthony E. Case No. 8:08-cv-491-T-33AEP

Porcelli, United States Magistrate Judge (Doc. # 89), which was filed on February 12, 2010, recommending that the Court grant the parties' Joint Motion for Court Approval of Class Certification and Confidential Settlement Agreement, subject to modification of the agreement. (Doc. # 75).

On February 23, 2010, Plaintiff filed objections to the report and recommendation (Doc. # 91), and Defendant filed its objections to the report and recommendation on February 25, 2010 (Doc. # 95). For the reasons that follow, the Court will adopt the report and recommendation in part. I. Legal Standard After conducting a careful and complete review of the findings and recommendations, a district judge may accept,

reject

or

modify

the 28

magistrate §

judge's

report Williams

and v.

recommendation.

U.S.C.

636(b)(1);

Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). In the absence of specific objections,

there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. U.S.C. § 636(b)(1)(C). 28

The district judge reviews legal

conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994). II. The Report and Recommendation The report and recommendation correctly describes the factual background and procedural history of this case, and the Court hereby adopts and incorporates by reference that discussion here. In essence, the parties seek (1) conditional class certification in this Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA) case and (2) an order approving a confidential settlement of the case. In the report and recommendation, Judge Porcelli

recommends conditional certification of the class of "all

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salaried

`Construction

Superintendents'

a/k/a

`Production

Supervisors' employed by Defendant nationwide over the last three years." (Doc. # 89 at 3-4). As to the requested confidential FLSA settlement, Judge Procelli noted that he reviewed the redacted settlement and held a hearing on February 5, 2010, in which the parties orally advised him of the financial terms thereof. Being

apprised of these terms, Judge Porcelli: (1) "finds that the Parties have negotiated at arm's length and that the terms are a fair and reasonable resolution of a bona fide dispute (Doc. # 89 at 5); (2) "finds that the release language [in the settlement agreement] is acceptable and warrants approval" (Doc. # 89 at 6); (3) "recommends approval and distribution of the Class Notice" with minor changes (Doc. # 89 at 7); (4) "recommends that the attorneys' fees [31.5 percent of the common fund] be preliminarily approved" (Doc. # 89 at 8); and (5) recommends that the Joint Motion for Court Approval of Class Certification and Confidential Settlement Agreement (Doc. # 75) be granted as long as the parties make three revisions to the settlement agreement (Doc. # 89 at 9). III. Discussion As noted above, the Court agrees with the factual and procedural discussion set forth in the report and

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recommendation.

However, the Court is not inclined to adopt

the report and recommendation to the extent that it recommends approval of a confidential settlement agreement. Aptly stated by the court in Dees v. Hydradry, 8-09-cv-1405-T-23TBM, 2010 U.S. Dist. LEXIS 40900, at * 37 (M.D. Fla. April 19, 2010): "A confidentiality provision in an FLSA settlement agreement both contravenes the legislative purpose of the FLSA and undermines the Department of Labor's regulatory effort to notify

employees of their FLSA rights." Rather than adopting the report and recommendation, the Court gives the parties the following three options for the resolution of this case: (1) The Court can review and, potentially, approve the

settlement agreement but such agreement will be filed publically, without redaction and will not be a

"confidential" settlement; (2) The parties can try this case during the Court's December 2010 trial term with a pretrial conference on November 16, 2010, at 9:00 a.m.; or (3) The parties can dismiss this case without further Court intervention upon such terms as the parties agree upon pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.

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The parties shall advise the Court, in writing, within ten days of the date of this order, of their election between the aforementioned three options. In the instance that the

parties fail to advise the Court of their election in a timely fashion, the Court will vacate the settlement agreement and set this case for a jury trial during the Court's December 2010 trial term. Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED: (1) The report and recommendation of the Honorable Anthony E. Porcelli, United States Magistrate Judge (Doc. # 89) is adopted in part but modified as specified above. (2) The parties shall advise the Court as to how they would like to proceed, consistent with the foregoing analysis. DONE and ORDERED in Chambers in Tampa, Florida, this 26th day of May 2010.

Copies: All Counsel of Record

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