Lewis v. Bushwood Investments, LLC
MEMORANDUM AND ORDER Granting 53 Motion for Settlement and Granting 55 Sealed Motion. Counsel directed to file forthwith requested document(s) with an event from the SEALED DOCUMENTS category. The clerk shall grant access to sealed document(s) to counsel of record. Pro hac vice attorneys must obtain sealed document(s) from local counsel. Signed by District Judge Julie A. Robinson on 04/02/2015. (sv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SCOTT LEWIS and
GRANT FERGUS, on behalf of
themselves and all others
BUSHWOOD INVESTMENTS, LLC,
FORT WORTH, LLC,
BUSHWOOD VENTURES, LLC,
Case No. 13-2610-JAR-JPO
MEMORANDUM AND ORDER
Scott Lewis and Grant Fergus (the “Named Plaintiffs”), individually and on behalf of all
opt-in plaintiffs (collectively, the “Opt-In Plaintiffs”) bring this suit under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b), against Defendants Bushwood Investments, LLC,
Bushwood of Fort Worth, LLC, and Bushwood Ventures, LLC (collectively “Bushwood” or
“Defendants”) claiming violations of the FLSA’s minimum wage requirements. Specifically,
Plaintiffs allege that Defendants, who operate more than thirty Jimmy John’s Gourmet Sandwich
restaurants in Kansas and Texas, failed to provide reasonable reimbursement expenses to its
delivery drivers, which caused the drivers’ wages to fall below the federal minimum wage during
some or all work weeks. Named Plaintiffs, who are delivery drivers employed by Defendants
who use their own automobiles to deliver sandwiches and other food items to Defendants’
customers, contend that Bushwood used a flawed method to reimburse its drivers that provided a
set amount of $.25 per delivery, regardless of the length of the delivery, and this underreimbursement of Plaintiffs’ expenses caused their hourly wage to fall short of the applicable
federal minimum wage of $7.25 per hour. The Court entered an order granting the Parties’ Joint
Stipulation to conditionally certify a collective action in this case, and since that time, 202 other
plaintiffs have opted into the class (the “Class” or “Class Member”). This matter is before the
Court on the Parties’ Joint Motion and Memorandum for Approval of FLSA Collective Action
Settlement (Doc. 53) and Unopposed Sealed Motion and Memorandum for Approval of
Attorneys’ Fees and Costs (Doc. 55). For the reasons stated below, the Court grants the parties’
motions for approval of settlement and for attorneys’ fees.
Plaintiff Scott Lewis filed this collective action on November 27, 2013, under § 216(b) of
the FLSA and under Fed. R. Civ. P. 23 for violations of the Kansas Wage Payment Act
(“KWPA”); Plaintiff Grant Fergus joined as a Named Plaintiff on December 18, 2013.
Bushwood moved to dismiss the KWPA claims. While that motion was pending, the Parties
agreed to a stipulation wherein Defendants would withdraw the motion and consent to
conditional certification of the FLSA class and authorize notice to be sent to delivery drivers,
and Plaintiffs would file an amended complaint that adds Defendants Bushwood Fort Worth,
LLC and Bushwood Ventures, LLC and omits their KWPA claims (Doc. 25). The Court entered
an order granting the Parties’ Joint Stipulation to Consolidated Certification and Issuance of
Notice on September 18, 2014 (Doc. 28). Notice was mailed to all potential class members and
202 people opted into the class. The parties engaged in mediation and on March 20, 2015, asked
the Court to approve their settlement agreement, and have attached that agreement under seal to
their motion for the Court’s review. Plaintiffs also filed under seal an unopposed motion for
A settlement of claims under the FLSA must be presented to the Court for review and a
determination of whether the settlement is fair and reasonable.1 In order to approve the
settlement, “the Court must find that the litigation involves a bona fide dispute and that the
proposed settlement is fair and equitable to all parties concerned. The Court may enter a
stipulated judgment only after scrutinizing the settlement for fairness.”2 And the settlement
agreement must contain an award of reasonable attorneys’ fees.3 Finally, before the putative
class claims can be dismissed, the Court must determine whether the class representative “has
used the class action claim for unfair personal aggrandizement in the settlement, with prejudice
to absent putative class members.”4
Bona Fide Dispute
The settlement of the instant action involves a bona fide dispute. Named Plaintiffs
alleged that Bushwood violated the FLSA by not reimbursing its delivery drivers for the
reasonably anticipated expenses associated with the use of their personal vehicles causing the
drivers’ wages to fall below the federal minimum wage during some or all work weeks.
Bushwood denied the Named Plaintiffs’ claims and continues to deny any liability whatsoever
See, e.g., Peterson v. Mortgage Sources, Corp., No. 08-2660-KHV, 2011 WL 3793963, at *4 (D. Kan.
Aug. 25, 2011) (citing Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982)).
Id. (citations omitted).
Id.; see 29 U.S.C. § 216(b).
Peterson, 2011 WL 3793963, at *4.
associated with such claims. If Plaintiffs’ allegations were ultimately correct, Defendants would
be faced with the prospect of a monetary verdict in favor of Plaintiffs, as well as an obligation to
pay legal fees and costs incurred by Plaintiffs in addition to their own. If Defendants’ arguments
were correct, then Plaintiffs would face no recovery of any kind. Based on these representations,
the Court finds that the litigation involves a bona fide dispute.
Fair and Reasonable
The Court finds that the settlement proposed by the parties is fair and reasonable.
Serious questions of fact and law exist with respect to the appropriate reimbursement rate that
place the ultimate outcome of the litigation in doubt. The proposed settlement will pay each
collective class member a pro rata share out of the total settlement amount based upon the total
number of vehicle deliveries made by each Class Member, the average miles per delivery as
calculated for the store from which the delivery was taken, the wages paid to each Class Member
during the applicable class period, and the reimbursements paid to each Class Member during
the applicable class period. Given these financial terms, the Court agrees with the parties that
the amount payable to Plaintiffs is fair and reasonable.
The Named Plaintiffs, Scott Lewis and Grant Fergus, will receive a Service Award under
the settlement agreement in the amount of $2000.00 each. The Court finds that this is a
reasonable enhancement payment, given the length of the case and the effort expended.
Plaintiffs seek unopposed attorneys’ fees and expenses in the amount of $73,000.00.
This request is in line with the settlement agreement, which provides that Plaintiffs agree that the
settlement amount fully compensates them and their attorneys. In their motion, Plaintiffs set
forth the factors Kansas courts use to determine the reasonableness of attorney fee requests,5
which are in line with the factors announced in Johnson v. Georgia Highway Express, Inc.,6 that
are often applied to fee requests on federal claims. For substantially the same reasons set forth in
Plaintiffs’ motion, which is supported by the billing records and counsel’s affidavit,7 the Court
finds that $73,000.00 is reasonable.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Joint Motion for
Approval of FLSA Collective Action Settlement (Doc. 53) and Plaintiffs’ Unopposed Motion for
Approval of Attorneys Fees and Costs (Doc. 55) is granted. The parties shall file a Joint
Stipulation of Dismissal.
IT IS SO ORDERED.
Dated: April 2, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
Kan. S. Ct. Rule 226, KRPC 1.5(a); see Johnson v. Westhoff Sand Co., Inc., 135 P.3d 1127, 1135 (Kan.
488 F.2d 714 (5th Cir. 1974).
Doc. 55, Exs. B-G. The Court finds significant the reduction in time requested compared to time actually
spent by counsel on this case.
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