Smith v. R.F. Fisher Electric Company, LLC

Filing 49

MEMORANDUM AND ORDER granting 46 Joint and Amended Motion for Preliminary Approval of Amended Collective Action Settlement. Signed by Magistrate Judge Kenneth G. Gale on 7/19/18. (Attachments: # 1 Notice of Settlement of Collective Action Lawsuit) (aw)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
MICHELLE C. SMITH, on behalf of herself
and all others similarly situated,
Plaintiff,
Case No.: 2:17-cv-02457-KGG

v.
R.F. FISHER ELECTRIC COMPANY, LLC,
Defendant.

ORDER REGARDING JOINT AND AMENDED MOTION FOR PRELIMINARY
APPROVAL OF AMENDED COLLECTIVE ACTION SETTLEMENT
The Court, having considered the Parties’ Joint and Amended Motion for Preliminary
Approval of Amended Collective Action Settlement [ECF 46], hereby grants the motion for the
reasons explained below.
Factual and Procedural Background
1. On June 25, 2018, the parties’ submitted their second Joint Motion for approval of a
collective action settlement. The first Joint Motion was filed with the Court on February 9, 2018.
[ECF 18].
2. On June 4, 2018, the District Judge Crabtree entered an Order denying the first Joint Motion.
[ECF 43]. While Judge Crabtree believe that the settlement was “fair and reasonable,” he concluded
that he did not have enough information to determine whether the $1,000 service payment to
Plaintiff (referred to in the Agreement as an “Enhancement Payment”) was also fair and reasonable.
As a result, the Court did not approve the settlement.
3. Following receipt of the June 4 Order, the parties entered an Amended Collective Action
Settlement Agreement and Release (the “Amended Agreement”). The Amended Agreement
removes any reference to an Enhancement Payment and does not provide Plaintiff with a service

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payment.
4. On June 25, 2018, the parties submitted their second Joint Motion seeking preliminary
approval of the Amended Agreement.
5. The Amended Agreement seeks to settle the Fair Labor Standards Act (“FLSA”) claims
alleged in the Complaint as to Plaintiff and purportedly similarly-situated individuals who, under the
terms of the agreement, will be given the opportunity to consent to join the settlement consistent
with Section 16(b) of the FLSA. The Amended Agreement does not seek to settle Plaintiff’s Kansas
Wage Payment Act (“KWPA”) claims, or the class action allegations based on those KWPA claims,
which arise out of the same allegations and would give rise to the same damages as the FLSA
claims. No KWPA class action has been certified, however, and the Amended Agreement ultimately
calls for dismissal, with prejudice, of what remains of this lawsuit. Plaintiff’s individual FLSA
retaliation claim was dismissed on May 30, 2018. [ECF 42].
6. The factual background leading up to the settlement is described in Judge Crabtree’s Order
[ECF 43], and incorporated here.
Legal Standard
7. The parties to an FLSA action must present a settlement of those claims to the court for
review and the court must determine whether the settlement is fair and reasonable. Koehler v.
Freightquote.com, Inc., No. 12-2505-DDC-GLR, 2016 U.S. Dist. LEXIS 91745, *6-8 (D. Kan. July
13, 2016). “To approve an FLSA 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.” Id., 2016
U.S. Dist. LEXIS 91745, at *6-8 (citing Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350,
1353 (11th Cir. 1982)).

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Analysis
8. Final Collective Action Certification is Appropriate. As an additional prerequisite to
approval of a collective action settlement under the FLSA, the parties must establish that final
certification of the collective action is appropriate. Grove v. Zw Tech, Inc., No. 11-2445-KHV, 2012
U.S. Dist. LEXIS 68701, *11 (D. Kan. May 17, 2012); Gambrell v. Weber Carpet, Inc., No. 102131-KHV, 2012 U.S. Dist. LEXIS 154586, *10-13 (D. Kan. Oct. 29, 2012); Koehler, 2016 U.S.
Dist. LEXIS 48597, at *50-52. On June 4, 2018, Judge Crabtree concluded that final collective
action certification was appropriate in this matter. [ECF 43], at p.13. Having reviewed the
pleadings and the Amended Agreement, I concur and enter a finding that final collective action
certification is appropriate.
9. A Bona Fide Dispute Exists Under the FLSA. On June 4, 2018, Judge Crabtree concluded
that the assertions by the parties suffice to establish a bona fide dispute. [ECF 43], at p.8. Having
reviewed the pleadings and the Amended Agreement, I concur and enter a finding that a bona fide
dispute exists under the FLSA.
10. The Proposed Settlement is Fair, Reasonable, and Adequate. In determining whether a
proposed settlement under the FLSA is fair and equitable, the factors which courts consider in
approving a class action settlements under Fed. R. Civ. P. 23(e) are “instructive,” as well as factors
relevant to the history and policy of the FLSA. Gambrell, 2012 U.S. Dist. LEXIS 154586, at *13.
On June 4, 2018, Judge Crabtree concluded that “the Rule 23(e) factors suggest that the proposed
settlement is fair and equitable.” [ECF 43], at p.11. Having reviewed the pleadings and the
Amended Agreement, I concur. Additionally, the Amended Agreement distributes the $1,000
service payment, which had originally been assigned to Plaintiff, to class members to compensate
them for their damages. The consequent increased payouts to individual class members comports

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with the policy of the FLSA, which is to protect employees against unfair wages. The Amended
Agreement, like the original Agreement, is “a product of ‘deliberate consideration of the action’s
merits and uncertainties.’” [ECF 43], at p.9. There remains a “dispute over the number of
uncompensated hours at issue,” which “places the case’s outcome in doubt.” [ECF 43], at p.10. The
Amended Agreement “provides meaningful, immediate recovery to all class members that might
otherwise be unrecoverable after a decision on the merits.” [ECF 43], at p.10. As such, the “value
of an immediate recovery outweighs the mere possibility of future relief after protracted and
expensive litigation.” [ECF 43], at p.10. Finally, the parties all agree that the settlement is fair and
reasonable, as demonstrated by the declarations submitted by counsel. [ECF 43], at p.10. These
factors all weigh in favor of a finding that the proposed settlement is fair, reasonable, and adequate,
and I therefore find that it is.
11. The Requested Attorneys’ Fees and Costs are Reasonable. On June 4, 2018, Judge Crabtree
approved counsel’s request for no fee and cost award. [ECF 43], at p.11. Having reviewed the
pleadings and the Amended Agreement, I concur and approve Plaintiff’s counsel’s request for no fee
and cost award.
12. Proposed Notice of Settlement of Collective Action Lawsuit. The proposed Notice of
Settlement of Collective Action Lawsuit, attached to the Amended Agreement as Exhibit A, is
confusing because it states “Because you consented to join this lawsuit, your rights will be affected
by this Settlement.” Class members will not have consented to join the lawsuit at the time they
receive Notice of it. I raised this issue during a telephone conference with the parties on July 11,
2018. At that conference, the parties agreed to revise the proposed notice to strike the language
stating, “Because you consented to join this lawsuit[.]” A revised proposed Notice of Settlement of
Collective Action Lawsuit was submitted to this Court by the parties and is attached as Exhibit A to

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this Order. With that revision, I approve the Notice of Settlement of Collective Action Lawsuit and
its submission to the potential class members.
Conclusion
13. The Parties’ Joint and Amended Motion for Preliminary Approval of Amended Collective
Action Settlement is hereby granted.
14. The parties should submit a motion for final settlement approval as contemplated by the
Amended Agreement.
IT IS SO ORDERED.
Dated on this 19th day of July, 2018.

S/ KENNETH G. GALE_

Kenneth G. Gale
United States Magistrate Judge

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SUBMITTED JOINTLY BY:
/s/ Michael A. Williams (w/consent)
Michael A. Williams, MO #47538
Williams Dirks Dameron LLC
1100 Main Street, Suite 2600
Kansas City, MO 64105
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff
/s/ Alan L. Rupe
Alan L. Rupe, #08914
Jessica L. Skladzien, #24178
LEWIS BRISBOIS BISGAARD & SMITH LLP
1605 N. Waterfront Parkway, Suite 150
Wichita, KS 67206
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant

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