Gillard et al v. Fleetmatics USA, LLC

Filing 67

ORDER denying without prejudice #61 the request to approve the Settlement Agreement; disapproving the Settlement Agreement; reserving ruling on approving conditional certification as a collective action pending submission of an amended settlement agreement. Signed by Judge James D. Whittemore on 9/20/2016. (SMA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID GILLARD, JACLYN
STRAMIELLO, and TROY PATE,
individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.

Case No. 8:16-cv-81-T-27MAP

FLEETMATICS USA, LLC,
Defendant.
________________________________________/
ORDER
BEFORE THE COURT is the Joint Motion and Stipulation for (1) Conditional
Certification of Collective Action for Purposes of Settlement, (2) Entry of an Order Approving
Settlement, and (3) Authorization of Notice of Settlement to the Putative Class and Incorporated
Memorandum of Law (Dkt. 61). Upon consideration, the request to approve the Settlement
Agreement is DENIED without prejudice. The Settlement Agreement is DISAPPROVED as
discussed herein. The Court RESERVES ruling on approving conditional certification as a collective
action pending submission of an amended settlement agreement.
Plaintiffs David Gillard, Jaclyn Stramiello, and Troy Pate (the “Named Plaintiffs”) are
current or former employees of the Defendant who worked as Business Development
Representatives (“BDR(s)”). (Dkt. 25 ¶¶ 22-30). The Named Plaintiffs brought this claim for the
Defendant’s failure to pay BDRs overtime wages pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq. (Dkt. 25). Thirty-seven (37) individuals have filed “Consents to
Join Collective Action” (“Opt-In Plaintiffs”). After two full days of mediation before an experienced
wage and hour attorney and mediator, the parties reached a preliminary settlement. (Dkt. 56). The

parties move for conditional certification of this action as a collective action for purposes of
settlement, approval of the Settlement Agreement, approval of the Notice of Settlement to be given
to Putative Class Members, and approval of the Notice of Settlement to be given to the Opt-In
Plaintiffs.
The parties seek approval, or alternatively preliminary approval for purposes of sending
notice, of the Collective Action Settlement Agreement. The parties also seek approval of the Notice
of Settlement to be given to Putative Class Members and the Notice of Settlement to be given to the
Opt-In Plaintiffs.
The Settlement Agreement contains a confidentiality provision that prohibits Plaintiffs, OptIn Plaintiffs, Putative Class Members, and Class Counsel from initiating any communications
concerning the agreement, which is now in the public record, with any media organizations or
responding to any communications concerning the agreement with any media organization, (Dkt. 611 at 11-12),1 a non-disparagement provision, (Id. at 13 ¶ F), a limitation on assisting or encouraging
others with claims against the Defendant, (Id.), and a provision for attorney’s fees and costs at
twenty-five percent of the Maximum Settlement Common Fund, (Id. at 3), that has not been
approved.2 The Notice of Settlement to both the Putative Class Members and Opt-In Plaintiffs
incorporate the Settlement Agreement.
An employer's insistence upon a confidentiality and non-disparagement provision as part of
an FLSA settlement contravenes the policies underlying the FLSA and limits the plaintiff's rights
under the First Amendment. See Dees v. Hydradry, Inc., 706 F.Supp.2d 1227, 1242-43 (M.D. Fla.
2010) (district court should reject a FLSA settlement agreement that contains a confidentiality
1

Citations are to the CM/ECF page numbers.

2

A motion for approval of attorney’s fees and costs is forthcoming. (Dkts. 64, 66).

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provision); Valdez v. T.A.S.O. Properties, Inc., No. 8:09-cv-2250-T-23TGW, 2010 WL 1730700,
at *1 n.1 (M.D. Fla. April 28, 2010) (inclusion of a non-disparagement provision "contemplates a
judicially imposed 'prior restraint' in violation of the First Amendment" and finding no extraordinary
circumstances warranting enjoining disparaging remarks in an FLSA case). Similarly, a provision
that restricts a plaintiff from assisting others in claims imposes a prior restraint on free speech and
interferes with the plaintiff’s constitutionally protected right of freedom of association. See Nichols
v. Dollar Tree Stores, Inc., No. 1:13-CV-88 WLS, 2013 WL 5933991, at *4 (M.D. Ga. Nov. 1, 2013)
(rejecting FLSA settlement agreement that restricted plaintiff’s right to associate with third parties
for the purpose of “counsel[ing] or assist[ing] . . . in the preparation or prosecution of any civil
dispute, difference, grievance, claim, charge or complaint against Dollar Tree”) (alterations in
original).
Accordingly, it is ORDERED that the request to approve the Settlement Agreement is
DENIED without prejudice, the Settlement Agreement is DISAPPROVED as discussed herein,
and the Court RESERVES ruling on approving conditional certification as a collective action
pending submission of an amended settlement agreement.
DONE AND ORDERED this 20th day of September, 2016.

/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge
Copies to: Counsel of Record

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