Davis v. Omnicare, Inc. et al

Filing 129

MEMORANDUM OPINION & ORDER: 1. Preliminary Certification of Rule 23 Class as defined in proposed Settlement Agreement is GRANTED; 2. FLSA collection CONDITIONALLY CERTIFIED; 3. request to preliminary appoint Plaintiff Daniel Davis is GRANTED; 4. Pla intiff's counsel are PRELIMINARY APPOINTED as Class Counsel; 5. appointment KY Legal Aid as cy pres beneficiary is PRELIMINARILY APPROVED; 6. request for attorneys fees and expenses is GRANTED; 7. This terminates by GRANT DE 127 & [128 ]; 8. request for approval of Proposed Notice to the Settlement Class Members, and the proposed schedule and procedure for the final approval is GRANTED, though on the stated terms, which require noted conforming corrections and modifications to the draft notice. Signed by Judge Robert E. Wier on 3/30/2021. (SKV) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
DANIEL DAVIS, individually and on
behalf of himself and all others similarly
situated,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
OMNICARE, INC., et al.,
Defendants.

No. 5:18-CV-142-REW

*** *** *** ***
I.

MEMORANDUM OPINION AND ORDER APPROVING

Plaintiff Daniel Davis initiated this putative collective and class action against Defendant
Omnicare, Inc. and three of its subsidiary pharmacies.1 Davis sues on behalf of himself and others
that performed delivery or dispatch services for Defendants. DE 1 at 4 (Complaint). Davis argues
that despite being designated as independent contractors, he and the other Drivers and Dispatchers
(collectively, Class Members) were in fact Defendants’ employees. As employees, Davis
maintains that he and the other Class Members are entitled to unpaid wages, unlawful deductions,
and unreimbursed expenses. (DE 1; Complaint at 11-13). He now seeks compensation under the
Kentucky Wages and Hours Act (KWHA) and the federal Fair Labor Standards Act (FLSA). To
unite all Class Members into a single action, Davis also seeks to establish a class action under Fed.
R. Civ. P. 23 to pursue the KWHA claims and an FLSA collective to pursue the federal claims.

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Together "Defendants" or "Omnicare." Omnicare does not directly own Defendants Home
Care Pharmacy, LLC, D&R Pharmaceutical Services, LLC, or Three Forks Apothecary, LLC.
See DE 11-1, at 5 n.1. Rather, Omnicare wholly owns three subsidiaries that, themselves,
exclusively own the other named Defendants. Id. Omnicare now is itself a wholly owned
subsidiary of CVS Pharmacy, Inc. Id.
1

On September 11, 2020, after more than two years of sharply adversarial litigation, the
Parties submitted a joint motion for settlement (and proposed agreed order (DE 128)) in which
Defendants would provide a common settlement fund of $1,000,000 to settle federal and state
claims held by members of the putative Rule 23 class and FLSA collective. DE 127-1 at 9-10.
Settlement agreements involving an FLSA collective and/or Rule 23 class require judicial
approval. Does 1-2 v. Déjà Vu Servs., Inc., 925 F.3d 886, 891 (6th Cir. 2019). In accordance with
the requisite approval process for each, the Parties now seek 1) preliminary approval of the
Settlement Agreement; 2) preliminary certification of the Rule 23 Settlement Class; 3) preliminary
appointment of Plaintiff Daniel Davis as Class Representative; 4) preliminary approval of
Goodwin & Goodwin, LLP, Lichten & Liss-Riordan, PC, and Craig Henry PLC as Class Counsel;
5) approval of the Notice of Settlement to Settlement Class Members; and 6) approval of the
proposed schedule and procedure for the final approval of the Settlement Agreement. DE 127 at
5. For the following reasons, the Court GRANTS the motion on specified terms.
II.

Relevant Terms of the Agreement
A. The Settlement Fund

In the proposed settlement, Omnicare agrees to contribute one million dollars
($1,000,000) to a Gross Settlement Fund and to also pay half of the fees and expenses of the
Claims Administrator in exchange for a full and final resolution of this litigation. DE 127-1 at
10-11. The Parties jointly describe the $1,000,000 settlement fund as fair and reasonable. DE 127
at 3. Before its distribution to any claimants, the $1,000,000 Gross Settlement Fund will be
reduced by $333,333.33 in attorney’s fees (DE 127-1 at 13); up to one-half of the litigation costs,
which the Parties estimate to be $59,000.00 (i.e., anticipated litigation cost is $118,000.00) (DE
127-1 at 41); one-half of the costs for the Claims Administrator expenses (DE 127-1 at 16);
$20,000 for the provisional Allocation Correction Set-Aside (DE 127-1 at 13); and $5,000 for the
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Service Payment to Davis (DE 127-1 at 12).
The remaining Net Settlement Fund will be distributed to all class members who submit
a valid Claim Form (otherwise known in the proposed agreement as the “Settling Plaintiffs”). DE
127-1 at 7, 11. The Net Settlement Fund will be distributed to all Settling Plaintiffs in two distinct
pools, with a stipulated and uniform calculation for each: one for drivers and one for dispatchers.
DE 127-1 at 11. Each class member can participate in only one pool. Id. at 39.
The Parties estimate that the driver specific pool of about $545,000.00 will go to
approximately 192 class members that worked as delivery drivers. Id. at 11. Each driver’s share
will be proportionate to the relative percentage of miles she drove during the class period based
on a formula developed by Plaintiff’s expert. Id. at 11. Drivers who affirmatively opted-in to the
FLSA prior to June 22, 2020 (a.k.a., Existing Opt-Ins, see DE 127-1 at 7) will have their
settlement amount adjusted upward by a multiplier of 1.2. Id. The remaining funds in the Net
Settlement Account—which the Parties anticipate will be around $25,000—will be distributed to
the estimated twelve class members that worked exclusively as dispatchers. Id. Dispatcher
payment will be proportionate to the relative number of weeks that dispatcher worked, although
existing opt-in dispatchers will also get a 20% premium to their payment. Id. at 12.
Because payments will go only to class members that submit a valid Claim Form, the
amount that each class member ultimately receives will depend on overall participation in the
action. DE 127 at 3; DE 127-1 at 11. Assuming 100% participation, the highest share to a class
member will be roughly $31,000 and the average share roughly $2,800. DE 127 at 4. At the
projected participation rate of 70%, the average share increases to about $4,000.00. Id. Each
participant is guaranteed a minimum payment of $100.00. DE 127-1 at 11.
In return, class and collective members will surrender some claims—although the exact

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claims each member surrenders will depend on his participation in the settlement. Class members
that participate in the settlement by submitting a valid Claim Form will surrender their state and
federal claims, due to the FLSA opt-in requirement. Id. at 13-14. Class members that do not
affirmatively participate but also do not affirmatively opt-out of the settlement will lose their
KWHA claims (except those barred from waiver by law) but not their FLSA claims. Id. at 14;
see generally Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 545-46 (6th Cir. 2006) (describing
the waiver of rights under FLSA collectives and Rule 23 classes).
B. Notice
Within 30 days of preliminary approval, the Parties will provide the Claims Administrator
(CA) with the best-known information about all Settlement Class Members. DE 127-1 at 19.
Within 30 days of that, the CA will mail or email a notice of the Settlement, a consent and Claim
Form, and an estimate of the amount of payment to all Settlement Class Members. Id. at 20; see
also id. at 36-43 (Proposed Notice Form). Also, within 30 days of the CA’s receipt of the
Settlement Class Members’ contact information, the Parties will jointly ensure publication of
notice of the settlement in several newspapers with readerships in targeted geographic areas. DE
127-1 at 20.
Class members will then have 75 days from the form’s mailing to submit a properly
completed Claim Form. DE 127-1 at 20-21. This 75-day window is the Claim Period. Id. at 20. If
a Class Member submits a deficient response, the CA will have 10 days to notify that person that
he has the later of 10 days or the close of the Claim Period to remedy the defect. Id. at 21.
The notice also explains class members’ right to object and the process for doing so. Id. at
24, 42 (Notice on Right to Object). In short, objection requires a Class Member to file with the
Court and serve on listed counsel for both Parties a written statement describing the basis for the
objection before the close of the Claim Period. Id. at 24. Failure to comply precludes the party
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from speaking at the Final Approval Hearing and otherwise objecting to the agreement. Id. The
Settlement Agreement also explains that any party seeking to opt-out of the Rule 23 Class must
submit a qualifying request for withdrawal postmarked by the close of the Claim Period, at the
latest. No party may opt-out after submitting a valid claim form. Id. at 25, 42.
III.

Analysis

When reviewing a proposed settlement agreement that resolves the claims of an FLSA
collective and a Rule 23 class, a court first considers whether to conditionally certify the proposed
collective and preliminarily certify the proposed Rule 23 class before proceeding to the question
of preliminary approval of the agreement itself. Ware v. CKF Enterprises, Inc., No. 5:19-CV-183DCR, 2020 WL 2441415, at *10 (E.D. Ky. May 12, 2020).
A. Conditional Certification of the FLSA Collective
Here, Davis alleges that Defendants failed to pay the drivers and dispatchers according to
the mandates of the FLSA. DE 1 at 7; see also 29 U.S.C. §§ 201, et seq. Section 216(b) of the
FLSA allows “similarly situated” employees to “opt-in” to collective actions against their
employers for alleged FLSA violations. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1636 n.3
(2018). A collective action under the FLSA requires judicial approval of the proposed collective;
in the Sixth Circuit, that process occurs in two-steps. White v. Baptist Mem'l Health Care Corp.,
699 F.3d 869, 877 (6th Cir. 2012).
At the first step, a court conditionally certifies the putative collective and then oversees the
process of the parties’ providing notice to putative collective members. Comer, 454 F.3d at 54546. The standard for this stage is “fairly lenient.” Id. at 547. After all putative collective members
have had sufficient time to opt-in to the action, the reviewing court moves to the “stricter” second
stage of the inquiry: a close examination of whether the “members of the class are, in fact, similarly
situated.” Comer, 454 F.3d at 547; see also Ware, 2020 WL 2441415, at *5. Although the FLSA
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does not define “similarly situated,” courts at this stage look chiefly to whether the collective’s
members “suffer from a single, FLSA-violating policy” and that proof of either that policy “or of
conduct in conformity with that policy proves a violation as to all the plaintiffs.” Abney v. R.J.
Corman R.R. Grp., LLC, No. CV 5: 17-260-DCR, 2017 WL 3723657, at *2 (E.D. Ky. Aug. 29,
2017).
Here, Davis earlier sought conditional certification of an FLSA collective defined as:
All current and former delivery drivers and dispatchers classified as independent
contractors who performed work for Defendants and were based at a distribution
center located in Ashland, Beattyville or Lexington, Kentucky during the three-year
period before the filing of the Complaint up to the date the Court authorizes notice.

DE 51-1 at 5. The Court granted conditional certification to the proposed collective as it pertained
to the drivers but rejected the inclusion of the dispatchers in that conditionally certified collective.
Davis v. Omnicare, Inc., No. 5:18-CV-142-REW, 2019 WL 6499127, at *2-4, (E.D. Ky. Dec. 3,
2019). The reason for the rejection was that Davis, at that point at least, had “not shown that former
Act Fast dispatchers are, with respect to the pending FLSA claims, similarly situated.” Id.
In the settlement agreement now before the Court, the Parties propose an FLSA collective,
the defined FLSA Settlement Class, DE 127-1 at 7, comprised of “the individuals who provided
driver or dispatcher services to Defendants in Kentucky from December 3, 2016 through March
25, 2018.” DE 127-1 at 7. For the following reasons, on the contested record and in the settlement
context, the Court now finds dispatcher inclusion into the collective appropriate and therefore
conditionally certifies the Settlement Agreement’s proposed collective. The earlier proposed
collective came during the fully adversarial stage of this litigation (see, e.g., DE 51 (Motion); DE
55 (Response in Opposition)); the present proposal comes through negotiation, when all aspects
of the case were on the table, and a proposed settlement agreement. “Courts should approve joint

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settlement agreements of FLSA claims ‘if a proposed settlement reflects a reasonable compromise
over contested issues.’” Senior v. Robert Newlin Airport, Inc., No. 3:18-1382, 2019 WL 4267488,
at *2 (S.D. W. Va. Sept. 9, 2019) (quoting Lomascolo v. Parsons Brinckerhoff, Inc., No. 1:08-CV1310, 2009 WL 3094955, at *8 (E.D. Va. Sept. 28, 2009)); see also Young v. Act Fast Delivery of
W. Virginia, Inc., No. 5:16-CV-09788, 2020 WL 4805036, at *1 (S.D. W. Va. Aug. 18, 2020). The
standard for that approval process is “relatively forgiving” and should reflect “the uncertainty of
the litigation process” and legal and “factual disagreements.” Senior, 2019 WL 4267488, at *2.
Although Defendants continue to deny Plaintiff’s allegations (DE 127-1 at 3), the record
provides sufficient reason to conclude that dispatchers and drivers are, within each subset,
similarly situated. Plaintiff alleges that both were improperly classified as independent contractors,
that both were under the de facto control of Defendants, that both were improperly denied overtime
and proper wages due, and that both were subject to unlawful deductions from their pay. DE 51-1
at 10 ¶¶ 6,10; 11 ¶ ¶ 8,10 (Citing collected affidavits). The Complaint alleges, as detailed in the
voluminous record and under a rational liability theory, that drivers and dispatchers, per class, all
“suffer from a single, FLSA-violating policy” (i.e., improper designation of employees as
independent contractors) and proof of that policy would prove a violation “as to all the plaintiffs.”
Abney, 2017 WL 3723657, at *2. Further, this settlement likely represents dispatchers’ last and
best chance of securing any compensation. FLSA claims generally expire after two-years, and a
maximum of three if the employer’s violation was willful. Kinder v. MAC Mfg. Inc., 318 F. Supp.
3d 1041, 1048 (N.D. Ohio 2018) (citing McLaughlin v. Richland Shoe Co., 108 S. Ct. 1677, 1681

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(1988)). Most or all FLSA claims accrued and within the collective would lapse if not so included.
Accordingly, the Court conditionally certifies the proposed collective.2
B. Preliminary Certification of the Rule 23 Kentucky Class and Related Issues
Before a court preliminarily approves a proposed settlement agreement involving a Rule
23 class, it must first “preliminarily certify the class under Rule 23(a) and (b) of the Federal Rules
of the Civil Procedure, appoint class counsel, and approve the class representative.” Ware, 2020
WL 2441415, at *7 (quoting Peck v. Air Evac. EMS, Inc., No. 5:18-615-DCR, 2019 WL 3219150,
at *2 (E.D. Ky. Jul. 17, 2019)).
1. The Class Definition
Preliminary certification of a class requires the proposed class’s definition to be
“sufficiently definite so that it is administratively feasible for the court to determine whether a
particular individual is a member of the proposed class.” Id. (quoting Young v. Nationwide Ins.
Co., 693 F.3d 532, 637-38 (6th Cir. 2012)) (internal quotation marks and citation omitted); see
also Fed. R. Civ. P. 23(c)(1)(B). Here, the Settlement Agreement’s proposed Rule 23 class is made
up of the approximately 200 “individuals who provided driver or dispatcher services to Defendants
in Kentucky during time period February 19, 2013 through March 25, 2018, and who do not optout of the litigation.” DE 127-1 at 8; see also DE 127 at 5.
The proposed class is sufficiently definite. The Parties have already used existing
employment records to identify a large majority of envisioned Class Members. DE 127 at 4 n.5.
Although those records are incomplete in minor part, the agreement provides for an investment in
finding unidentified class members; notice will be posted in the relevant markets and funds set

2

The Court further rejected the earlier collective for lack of detail on or advocacy regarding the
dispatcher sub-group. In the negotiated context, where the Parties have full access to the record
and are negotiating at arms’ length, the Court proceeds in a more deferential stance. Further, the
prior handling did not touch on state-law claims.
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aside for the emergence of new Class Members. DE 127-1 at 19-20. Further, a person’s
membership in the class will hinge on knowable and demonstrable characteristics, namely whether
that person provided specific services within an identified timeframe. Accordingly, the Court
deems the proposed class sufficiently definite.
2. Preliminary Certification Under Rule 23(a)
Rule 23(a) requires the following of a proposed class:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.

Fed. R. Civ. P. 23(a). These four requirements are generally referred to as “numerosity,
commonality, typicality, and adequacy.” Ware, 2020 WL 2441415, at *7. For the following
reasons, the proposed class merits preliminary certification under Rule 23(a).
For numerosity, “no strict numerical test exists.” Young, 693 F.3d at 541 (citation omitted).
A class of 35 can clear the hurdle. Id. at 542. However, “impracticability of joinder must be
positively shown, and cannot be speculative.” Id. (quoting Golden v. City of Columbus, 404 F.3d
950, 966 (6th Cir. 2005)). Here, the proposed class of roughly 200 people is sufficiently numerous.
See DE 127 at 4. The impracticability of joinder for that scope class is clear and, therefore, the
numerosity requirement met. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).
Commonality exists if the plaintiff can show that the class members have suffered the
same injury. Walmart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). “This does not mean
merely that they have all suffered a violation of the same provision of law.” Id. Instead, the class
members’ claims must share a “common contention” that is “capable of classwide resolution[.]”
Id. A single determination as to that common contention’s “truth or falsity will resolve an issue
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that is central to the validity of each one of the claims in one stroke.” Id. Here, all putative class
members’ claims share the same central and foundational liability contention: Defendants
improperly designated Class Members as independent contractors, rather than employees, causing
them financial harm via the manner and scheme of compensation and reimbursement. If true, the
claims would likely succeed; if false, they would likely fail. Thus, the proposed class satisfies the
commonality requirement. Ware, 2020 WL 2441415, at *8 (finding that a putative class satisfied
the commonality requirement because all members’ claims hinged on whether they were
employees or independent contractors).
Next up is typicality, which “limit[s] the class claims to those fairly encompassed by the
named plaintiff’s claims.” Gen. Tel. Co. of the Nw. v. Equal Employment Opportunity
Comm 'n, 100 S. Ct. 1698, 1706 (1980). Typicality measures the relationship between the
injury to the named plaintiff and the injury to class members to see whether the named
plaintiff’s injury arose from the same conduct that harmed other class members. In re Am.
Med. Sys., Inc., 75 F.3d at 1082. “Thus, a plaintiff’s claim is typical if it arises from the same
event or practice or course of conduct that gives rise to the claims of other class members, and
if his or her claims are based on the same legal theory.” Id. (quoting Herbert B. Newberg &
Alba Conte, Newberg on Class Actions, § 3.13, at 3–76 (3d ed. 1992)). Here, the proposed class
clears the typicality hurdle because all claims share the same scope, source, and legal theory:
Class Members, while working on behalf of the same Defendants, were harmed by their
improper designation as independent contractors rather than as employees, an alleged misdesignation that was a product of Defendants’ employment policies, and that gives rise to
claims under the KWHA and the FLSA. This area is highly contested on the merits, but
typicality exists in the Rule 23 rubric.

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The final requirement, adequacy of representation, has two criteria: “1) the
representative must have common interests with unnamed members of the class, and 2) it must
appear that the representatives will vigorously prosecute the interests of the class through qualified
counsel.” In re Am. Med. Sys., 75 F.3d at 1083 (quoting Senter v. General Motors Corp., 532 F.2d
511, 5252 (6th Cir. 1976)) (internal quotation marks omitted). Here, Davis has the same interest
as the unnamed members of the class: securing owed compensation for past services rendered
and wrongly withheld pay. Davis and his counsel have also diligently pursued the class’s
claims throughout this heavily contested dispute. They have engaged in substantial discovery
and generated significant amounts work product. Plaintiff’s counsel have substantial
experience in the legal fields relevant to this dispute. Counsel from Lichten & Liss-Riordan, PC
has spent 37 years as a labor and employment attorney and specializes in classification questions
regarding employees and independent contractors. DE 127-3 at 2-3 (Declaration of Harold L.
Lichten). Goodwin & Goodwin attorneys have extensive experience in similar class, collective,
and mass tort actions—including serving as counsel in a similar dispute against Defendant
Omnicare. DE 127-4 at 3; see Young, 2020 WL 4805036, at *5.
For these reasons, the Court finds that the proposed class, with Davis as its
representative, satisfies the Rule 23(a) requirements.
3. Preliminary Certification Under Rule 23(b)(3)
Rule 23(b) provides three potential forms of class action for a putative class that
satisfies the four Rule 23(a) requirements. Here, the Parties seek preliminary certification
under the third form, which requires the following for class approval:
(3) the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy. The matters
pertinent to these findings include:
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(A) the class members' interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3); see also Elliott v. LVNV Funding, LLC, No. 3:16-CV-00675-RGJ, 2019
WL 4007219, at *5 (W.D. Ky. Aug. 23, 2019) (discussing the requirements of 23(b)(3)).
Here, Rule 23(b)(3) calls for preliminary approval of the proposed class. First, common
questions of law and fact predominate over individual ones. Predominance requires consideration
of the questions of law and fact that “qualify each class member's case as a genuine controversy
. . . and assess whether those questions are subject to generalized proof, and thus applicable to the
class as a whole.” Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., 863 F.3d
460, 468 (6th Cir. 2017) (citing Amchem Prods., Inc. v. Windsor, 117 S. Ct. 2231, 2249 (1997)).
Here, the class members’ claims arise from common questions of law and fact regarding
Defendants’ policy of employer/independent contractor designation as well as the unified and
systematized manner of payment within each sub-class. Accordingly, the same generalized proof
is likely to address each class member’s claim. See, e.g., Ware, 2020 WL 2441415, at *10 (finding
predominance under 23(b)(3) because “[t]he legal and factual issues of all putative class members
involve[d] whether [defendant’s] apparently contractual policy of classifying Kentucky
consultants as independent contractors and paying them accordingly violated the KWHA because
they were, in reality, employees”).
A class action is also the best way to resolve the present dispute. First, as a general matter,
a class action is this district’s preferred method for adjudicating employee classification issues. Id.
In addition, the apparent absence of similar suits lodged by other members of the putative class,

12

the substantial investment in discovery and work already made by Davis and his legal team, the
adversarial (thus, well tested and litigated) nature of the proceeding thus far, and the geographical
siting of the alleged harms in and around Eastern Kentucky all weigh in favor of recognizing the
proposed class. See id. (noting, for similar reasons, the benefits of class action in a dispute
involving an employee/independent contractor designation). Accordingly, the Court preliminarily
certifies the proposed class for the purposes of settlement, which the Rule directly sanctions.
4. Davis as Class Representative
The Parties jointly seek to establish Daniel Davis as the putative class’s Class
Representative. DE 127 at 5. Because a class representative carries significant power in resolving
the claims of fellow class members, a court should ensure that a proposed representative will
adequately represent that class. In re Dry Max Pampers Litig., 724 F.3d 713, 721 (6th Cir. 2013).
Here, for the reasons already discussed, and assessing all conduct to date, the Court finds that
Davis will adequately represent the class under Rule 23(a)(4) and therefore approves the request.
5. The Plaintiff’s Counsel as Class Counsel
A court must also appoint class counsel when certifying a class. Fed. R. Civ. P. 23(g)(1).
Here, the Parties jointly seek preliminary appointment of Goodwin & Goodwin, LLP; Lichten &
Liss-Riordan, PC; and Craig Henry PLC to serve as Class Counsel. DE 127 at 5. For the following
reasons, the Court approves the request. When appointing class counsel, a court considers:
(i) the work counsel has done in identifying or investigating potential
claims in the action;
(ii) counsel's experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class;
Fed. R. Civ. P. 23(g)(1)(A). That list is non-exclusive; the appointing court is free to consider any
matter “pertinent to counsel's ability to fairly and adequately represent the interests of the
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class.” Id. (g)(1)(B). The most important concern is ensuring that counsel will fulfill its duty to
“fairly and adequately represent the interests of the class.” Id. 23(g)(4).
Here, and for reasons already addressed under the section on Rule 23(a)(4), proposed
counsel are worthy of appointment because of the work they have put into raising and pursuing
the class’s claims and their expertise in the areas of law relevant to this dispute. See, e.g.,
DE 127-3 at 2-3 (Declaration of Harold L. Lichten) (noting nearly 40 years of experience as a
labor attorney); DE 127-2 at 2-4 (Declaration of Rebecca Shuford) (discussing efforts to develop
estimates of class members’ anticipated claims); DE 127-4 at 3 (discussing Goodwin & Goodwin’s
experience in class, collective, and mass tort actions); and DE 1 (showing Craig Henry PLC’s early
involvement in the litigation). Ware, 2020 WL 2441415, at *10 (granting preliminary appointment
of class counsel on similar grounds).
C. Preliminary Approval of the Proposed Agreement
With the FLSA collective conditionally certified and the Rule 23 class preliminarily
approved, the Court now considers the requested preliminary approval of the proposed Settlement
Agreement. Ware, 2020 WL 2441415, at *10. The review processes for preliminary approval of a
settlement agreement under the FLSA and Rule 23 are similar, but not identical. Id. Both require
the Court to evaluate whether the proposed agreement is fair, reasonable, and adequate. Id. at *11
(citing Déjà Vu Servs., 925 F.3d at 894-99). However, preliminary approval under the FLSA also
requires the reviewing court to establish the presence of a “bona fide dispute over [the] FLSA
provisions.” Lynn's Food Stores, Inc. v. U.S. By & Through U.S. Dep't of Lab., Emp. Standards
Admin., Wage & Hour Div., 679 F.2d 1350, 1355 (11th Cir. 1982). Accordingly, the Court first
reviews whether there is a bona fide FLSA dispute before turning to the fairness, adequacy, and
reasonableness of the agreement.

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1. Bona Fide Dispute over FLSA Provisions
Employers and employees may not, of course, jointly agree to circumvent the FLSA. Ware,
2020 WL 2441415, at *10. However, employers and employees may, in the context of an FLSA
dispute, jointly propose a settlement agreement and submit that agreement to a federal district court
for approval. Crawford v. Lexington-Fayette Urban Cty. Gov't, No. 06-cv-299-JBC, 2008 WL
4724499, at *2 (E.D. Ky. Oct. 23, 2008) (citing Lynn's Food, 679 F.2d at 1350). To properly
accommodate both of those somewhat contradictory rules, it is incumbent on courts reviewing
FLSA settlement agreements to ensure that the agreement is not an improper sale by employees of
FLSA-established wage protections. Accordingly, courts use the presence of a genuine, adversarial
process and dispute as indicia of the absence of collusion or coercion. Ware, 2020 WL 2441415,
at *10 (citing Lynn’s Food, 679 F.2d at 1355); Rakip v. Paradise Awnings Corp., 514 F. App’x
917, 919-20 (11th Cir. 2013). A fair and tested resolution of a legitimate dispute over FLSA
coverage and liability warrants approval. Senior, 2019 WL 4267488, at *2.
Here, the proposed agreement is a fair and reasonable resolution of a bona fide dispute over
FLSA provisions. In the more than two-and-a-half years since Davis’s initial complaint, the Parties
have spent significant resources actively contesting all claim components, centering on whether
drivers and dispatchers were or were not Defendants’ employees. DE 1 (Complaint, dated
2/19/2018); DE 127 (Joint Motion for Settlement, dated 9/11/2020). Plaintiff supported his claim
with numerous well-researched motions and memoranda, and Defendants have responded in kind.
See, e.g., DE 11 (Motion for Judgment on the Pleadings); DE 51 (Motion for Conditional
Certification); DE 55 (Response in Opposition to DE 51 Motion). The case has been through the
motion to dismiss stage, an initial collective certification stage, and was primed for dueling
certification and decertification fights at the time of settlement. Seemingly, every inch of ground
has involved combat, and the case result (as to employee status, as to Defendants’ operative
15

policies, as to proper calculative mechanics) was very unpredictable and unknowable when the
mediation occurred. This is a bona fide dispute. Ware, 2020 WL 2441415, at *11 (finding that a
contested, protracted legal fight over the question of employee or independent contractor
designation constitutes a bona fide dispute); see also Lynn's Food, 679 F.2d at 1354 (finding that
the absence of an employee-originated lawsuit weighed against a finding of a bona fide dispute).
2. Fairness, Reasonableness, and Adequacy of the Settlement under the FLSA and Rule 23
As noted, preliminary approval of a settlement agreement involving an FLSA collective or
a Rule 23 class requires the reviewing court to conduct essentially the same analysis on whether
the agreement is fair, adequate, and reasonable. Ware, 2020 WL 2441415, at *11 (citing Déjà Vu
Servs., 925 F.3d at 894-99). The fairness, reasonableness, and adequacy of a settlement is
measured by the seven factors identified in International Union, UAW, et al. v. General Motors
Corp., 497 F.3d 615, 631 (6th Cir. 2007) (“UAW”). Déjà Vu Servs., Inc., 925 F.3d at 894. The
UAW factors are:
the risk of fraud or collusion, (2) the complexity, expense and likely
duration of the litigation, (3) the amount of discovery engaged in by the
parties, (4) the likelihood of success on the merits, (5) the opinions of class
counsel and class representatives, (6) the reaction of absent class members,
and (7) the public interest.
Ware, 2020 WL 2441415, at *11 (quoting Déjà Vu Servs., 925 F.3d at 894-95) (internal citations
omitted). Of those factors, likelihood of success is the most important and “warrants discussion
before the others.” Id.

i.

a. The UAW Factors
Likelihood of Success on the Merits

This “most important” factor balances the plaintiff’s chances of success on the merits
against the relief offered by the settlement. Id. When considering this factor, the Court must be
mindful of the Rule 23 class members whose claims will be extinguished without any active

16

participation on their part. Id. The court’s treatment of this question in Ware is instructive here
given that the Ware court was also confronting a dispute over whether a group of plaintiffs were
employees improperly and detrimentally designated as independent contractors. Id. at *1.
When considering the Ware plaintiffs’ likelihood of success on the merits, the court noted
the inherent challenge in predicting the outcome of the FLSA claim because of the FLSA’s
“strikingly broad” definition of employee. Id. at *12. Under the FLSA, employees are
distinguished from independent contractors through a six-factor “economic reality” test, which
factors:
(1) the permanency of the relationship between the parties; (2) the degree
of skill required for the rendering of the services; (3) the worker's
investment in equipment or materials for the task; (4) the worker's
opportunity for profit or loss, depending upon his skill; ... (5) the degree of
the alleged employer's right to control the manner in which the work is
performed ... and (6) whether the service rendered is an integral part of the
alleged employer's business.
Id. (quoting Acosta v. Off Duty Police Servs., Inc., 915 F.3d 1050, 1055 (6th Cir. 2019)). No single
factor is independently determinative. Acosta, 915 F.3d at 1055. Instead, each is considered in the
context of whether it suggests that the person is economically independent from or dependent on
the alleged employer. Id. This analysis has threaded through the entire case.
Here, as in Ware, some factors appear to weigh in favor of the claim that the drivers and
dispatchers were Defendants’ employees. The services the drivers and dispatchers performed were
integral to Defendants’ delivery operations. Keller v. Miri Microsystems LLC, 781 F.3d 799, 815
(6th Cir. 2015). So too does the drivers’ and dispatchers’ relative lack of specialized training and
investment in specialized equipment. Acosta, 915 F.3d at 1056.
But, also as in Ware, employee designation is hardly a foregone conclusion. As noted by
Defendants, the extent to which Act Fast—a separate legal entity—stood between Class Members

17

and Defendants weighs sharply against Plaintiff’s cornerstone claim. See, e.g., DE 55 at 3.
According to Act Fast’s Lexington manager of delivery services, it was Act Fast that assigned
routes to drivers, determined their schedules, disciplined drivers, and managed the drivers’ and
dispatchers’ payrolls. Id. at 4-5 (citing DE 55-2 (Brumagen Dep.)). Also weighing against Plaintiff:
at least some drivers were apparently performing delivery services for other Act Fast Customers
at the same time they were ostensibly driving for Omnicare. DE 55 at 3 (citing DE 55-1 at 164:13165:4). These are just some of the issues in the mix on the hotly fought FLSA coverage and
liability topics.
Accordingly, the likelihood of success on the merits for the FLSA claim is unclear. Same
too for the KWHA claim raised via the Rule 23 class. Plaintiff, carrying the burden to prove Class
Members’ status as covered “employees” under Kentucky state wage laws, would have to
overcome the burdens already noted (Act Fast’s placement in between the Parties; drivers’ work
for other companies) and the other sub-issues the pleadings and motion practice reveal. All of this
signifies risk and indeterminacy, things that obviously affect the reasonableness of a brokered
result. The class and collective members faced a daunting gauntlet of hurdles, and that contributes
to the reasonableness of an arms’ length, risk reflective settlement.
Further tilting this factor in favor of settlement, likelihood of success is not considered in
isolation. It is balanced against the relief offered by the agreement. Ware, 2020 WL 2441415, at
*11 (citing Déjà Vu Servs., Inc., 925 F.3d at 894). Here, the agreement appears to offer all parties
a sure and tangible improvement from the status quo. The Settlement Agreement promises to
release more than a half million dollars to affected drivers and dispatchers to settle claims that
have otherwise (outside this case) been sparsely or not litigated and are fast expiring (if not already
time-barred). Kinder, 318 F. Supp. at 1048. Class counsel estimates that the proposed agreement

18

would be roughly 45% of single damages (at an estimated 80% participation rate.) DE 127-3 at 6.
Conversely, were Defendants to successfully demonstrate that Act Fast is the true employer here,
claimants would receive nothing. Id. As noted by Plaintiff’s counsel, the present settlement offers
an attractive certainty of compensation for class members, compensation otherwise debatable and
attainable only after a protracted and hazardous journey over difficult legal terrain. A failure to
settle now could lead those class members to recover less or nothing. DE 127-4 at 4. Accordingly,
this first and critical factor weighs in favor of granting the proposed agreement.
ii.

Risk of Fraud or Collusion

Here, the presence of a bona fide dispute (as discussed above) and the absence of any
evidence of improper fraud or collusion pulls the second UAW factor in favor of granting the
agreement. Crawford, 2008 WL 4724499, at *6. The Parties, after adversarial litigation, reached
through mediation an agreement that would benefit both sides. Accordingly, the Court finds this
factor weighs in favor of granting the proposed settlement agreement. There is utterly no reason
to doubt the separateness and proper advocacy of the participants.
iii.

The Complexity, Expense, and Likely Duration of the Litigation

The present dispute involves roughly 200 drivers and dispatchers alleging related but
distinct state law and federal law claims pursued through joint actions in the form of a Rule 23
class and its lesser included FLSA collective. “The Sixth Circuit has noted the complexity of cases
involving overlapping FLSA collective and state law class action claims.” Ware, 2020 WL
2441415, at *14 (citing Déjà Vu Servs., 925 F.3d at 898). Denial of the proposed settlement would
ensure further and extended litigation of this complex dispute at great expense to both Parties.
COVID-19 caused backlogs would only delay proceedings further. Accordingly, this factor calls
for approval.

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iv.

The Amount of Discovery Completed

As this matter’s sizable docket attests, the Parties here have engaged in a considerable
amount of discovery in the past two+ years. DE 127 at 3. See, e.g. DE 77 – 85 (Notices of
Deposition); DE 117 (Exhibits); DE 127 at 3 (discussing scope of the Parties’ record review and
the work done by experts to investigate the validity of the claims and potential benefits).
Accordingly, this factor too weighs in favor of approval. The experts’ participation and competing
roles, all built on a foundation of discovery-based proof, further supports this finding.
v.

The Opinions of Class Counsel and Class Representatives

Class counsel—whose experience and expertise in this area have already been noted—
unanimously support the agreement. See e.g. DE 127-4 at 4 (Statement of Thomas Goodwin); DE
127-3 at 6 (Statement of Harold Lichten). So too does Davis. DE 127 at 1; DE 127-1 at 33.
Accordingly, this too weighs in favor of approval.
vi.

The Public Interest

The final UAW factor also calls for approval. “Settlement is the preferred means of
resolving litigation.” Ware, 2020 WL 2441415, at *14 (quoting Crawford, 2008 WL 4724499, at
*9). The choice before the Court is whether to preliminarily approve a hard-won agreement
between the Parties that would resolve the claims and provide compensation to class members or
to deny the proposed agreement and send the Parties back to pre-agreement status quo and
continued class and collective litigation that is “notoriously difficult and unpredictable[.]” Déjà
Vu Servs., 925 F.3d at 899 (quoting In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D.
Mich. 2003)). Granting the proposed settlement carries the added benefit to the public of
conserving judicial resources. Id.
Further, the factors that would call for rejection of a proposed settlement agreement of a
collective or class action are not present here. There is no evidence of collusion, improper conflicts
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of interest, or anything that would suggest that the parties here are improperly bargaining around
the requirements of state and federal wage laws. Nor is there evidence of a clear or incontestable
violation of those laws; Defendants have continuously denied the fundamental premise of
Plaintiff’s complaint and Plaintiff’s likelihood of success on the merits is hazy. All parties see the
proposed settlement agreement as a rational improvement to the status quo. Accordingly, public
interest also calls for preliminary approval of the agreement. Ware, 2020 WL 2441415, at *14.
Therefore, in accordance with the UAW factors, the Court finds the proposed settlement
agreement to be fair, reasonable, and adequate and therefore grants the requested preliminary
approval.
b. Additional Rule 23(e)(2) Factors
Rule 23(e)(2) provides its own supplemental factors used to evaluate a settlement
agreement’s fairness, reasonableness, and adequacy. Id. at *15. Several of those factors have
already been discussed; the Court will not repeat those again now (e.g., adequacy of class counsel
and the class representative’s representation; existence of an arm’s length negotiations).
However, other factors do now merit review. One is whether the relief provided is adequate
in light of:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the
class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorney's fees, including timing
of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3)
Fed. R. Civ. P. 23(e)(2)(C). Relevant to (i) and (ii), respectively, the costs of continued litigation
here are high and delay for trial would be considerable (particularly given ripples from COVID19) and the joint settlement agreement proposes a comprehensive scheme to identify and provide
class members with their checks. DE 127-1 at 19-20 (discussing methods to identify claimants).

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When evaluating proposed attorney’s fees under (iii), the watchword is reasonableness.
Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516 (6th Cir. 1993) (“[A]wards of
attorney's fees by federal courts in common fund cases [need only to be] be reasonable under the
circumstances.”). Reasonableness is measured by:
(1) the value of the benefit rendered to the plaintiff class [ ]; (2) the value of
the services on an hourly basis; (3) whether the services were undertaken
on a contingent fee basis; (4) society's stake in rewarding attorneys who
produce such benefits in order to maintain an incentive to others; (5) the
complexity of the litigation; and (6) the professional skill and standing of
counsel involved on both sides.

Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996) (discussing the factors governing the
reasonableness of fee awards in a class action); Ware, 2020 WL 2441415, at *15-16. Here, the
Parties seek an award of one-third of the Gross Settlement Fund. DE 127 at 9. As a threshold
matter, an award of one-third of a gross-settlement fund is consistent with other, similar awards.
Ware, 2020 WL 2441415, at *15-16 (finding an attorney fee award of roughly $200,000.00—
equal to one-third of the common fund—to be “reasonable for the purposes of Rule 23” and in line
with other fee awards in “similar complex failure-to-pay overtime cases”). However, courts in the
Sixth Circuit have shown reluctance to award fees exceeding one-third of a common settlement
fund. Id. (collecting cases). Thus, as a percentage of the settlement, the proposed fee is at the upper
limits of, but still within, the bounds of reasonableness.
The request is also consistent with factors articulated in Bowling, 102 F.3d at 777.
Plaintiff’s Counsel Harold Lichten conservatively estimates investment of more than 2,200
attorney hours into this case. DE 127-3 at 7. The record squares with that level of work; Plaintiff’s
counsel put substantial effort and expertise into this dispute. See, e.g., DE 51; DE 118; DE 111;
DE 127. Because of that effort, roughly a half-million dollars will be distributed to approximately

22

200 class members. Given the complexity of the underlying subject matter, the inherently risky,
prospective nature of counsel’s involvement, and the extent to which this sort of litigation
reinforces statutory wage protections, society has an interest in ensuring that the attorneys who
work on these sorts of suits are, when warranted, properly compensated for their efforts and risk.
These factors also weigh in favor of reasonableness. Notably, the award treated as an hourly
measure, based on the factors presented (award divided by hours), would be a modest $150 per
hour.
Finally, Rule 23(e)(2) requires consideration of any existing agreements ancillary to the
one under review ((e)(2)(C)(iv)) and whether the proposed agreement treats class members
“equitably relative to each other.” Rule 23(e)(2)(D). Here, there are no apparent side agreements
to address. The agreement also treats all class members equitably, under defined mechanics and
formulae. The driver settlement pool will distribute approximately $545,000 to roughly 190
drivers—an estimated average rate of $2,800 per driver. DE 127-1 at 11. The dispatcher pool will
distribute $25,000 among 12 people—an estimated average rate of a little over $2,000 per person.
Id. Each specific calculation will hinge on variables particular to a participant as included in a set
formula for the sub-classes of driver and dispatcher—the same formula applies per sub-class, and
the claimant’s characteristics will explain the differing levels of precise compensation. Although
there is some disparity there, it does not appear to rise to the level of inequity, especially since
based on empirical differences. Except for the service award to Davis and the 20% premium for
those who opted into the action prior to June 22, 2020 (pre-settlement), each claimant’s award is
calculated equitably based on the miles that person drove (in the case of drivers) or the number of
weeks that person worked (in the case of dispatchers) relative to the salient group. Id. at 11-12. On
these facts, the Court sees no basis under Rule 23(e)(2) to reject the proposed agreement.

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c. Other Issues Relating to Preliminary Approval
i.
Attorney's Fees & Costs
“An award of attorney fees to a prevailing plaintiff under [29 U.S.C. § 216(b)] of the FLSA is
mandatory, but the amount of the award is” within the judge’s discretion, so long as it is reasonable.
Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir. 1994). As discussed above in the context of Rule
23(e)(2), the proposed award of one-third of the gross settlement fund is reasonable given the
awards in prior similar actions, the complexity of this litigation, and the public interest in
incentivizing attorneys to take on the risk of pursuing actions for alleged wage violations. The
same reasoning applies in the FLSA context. Ware, 2020 WL 2441415, at *17 (citing Déjà Vu
Servs., 925 F.3d at 898). There is no evidence that the award is the product of fraud or collusion.
Déjà Vu Servs., Inc., 925 F.3d at 897. Accordingly, the proposed fee, considered in isolation, is
reasonable.
Here, the proposed settlement agreement would also allow Class Counsel to recoup up to
one half of their litigation costs and expenses from the Gross Settlement Fund. DE 127 at 9. “Like
attorney's fees, an award of costs to prevailing parties is mandatory under the FLSA.” Ware, 2020
WL 2441415, at *17 (citing § 216(b)). The Court finds the expense provision, estimated at
$59,000, approvable as a preliminary matter. The Court will review the precise and documented
components as part of consideration of final approval, but counsel essentially is forgoing ½ of the
invested expenses in securing the settlement. Not approving the stipulated expense amount would
erode the attorney fee value in a way that would not reflect the proper balance of risk, reward, and
class benefit, relative to counsels’ role, in this context. As such, subject to final review and
approval, the Court finds the compensation and reimbursements anticipated (not to exceed the
estimate) reasonable in this case.

24

ii.

Service Award

The Parties also jointly propose a $5,000.00 Service Award to Class Representative and
Named Plaintiff Daniel Davis as compensation for his role in bringing the suit to fruition and
completion. DE 127-1 at 12. “Courts within the Sixth Circuit have looked at several factors when
determining whether to approve service incentive awards[.]” Ware, 2020 WL 2441415, at *17.
Those factors include the action taken by the class representative in furtherance of the other class
members’ interests, whether that action was substantially beneficial to class members, the amount
and nature of risk borne by the class representative, and the time and effort expended by the
representative in furtherance of the suit. Id. (collecting cases). The service award is not intended
as a “mere bount[y]” payment for a named plaintiff who makes little effort and takes on little risk.
Id. (collecting cases).
Here, the proposed $5,000.00 service award for Davis is appropriate. Davis has been a
party to this dispute for more than two-and-a-half years. All class members stand to benefit from
this suit and may not have received anything if Davis had not taken this initiative and endured the
lengthy pre-settlement litigation. In putting his name forward, Davis also arguably put his future
employment opportunities and his perception as an employee in the marketplace at risk.
Accordingly, the proposed service award is appropriate.
iii.

The Cy Pres Beneficiary

Checks to class members that remain uncashed after one year of their receipt will be
cancelled—unless that class member properly requests a new check. DE 127-1 at 12. The
remaining funds would then go to Kentucky Legal Aid, the designated cy pres beneficiary. Id.
Here, as in Ware, the cy pres beneficiary will receive only the de minimis remainder left by class
members’ uncashed checks. Ware, 2020 WL 2441415, at *18. Class members will receive notice

25

of this arrangement and adequate opportunity to avoid a lapse in payment. DE 127-1 at 39.
Accordingly, the Court approves KLA’s designation as the cy pres beneficiary.
iv.

Approval of the Notices and the Notice Process

The settlement approval processes for a Rule 23 class and an FLSA collectives both require
notice to go to putative class/collective members once the agreement is preliminarily approved.
Ware, 2020 WL 2441415, at *18. Accordingly, the Parties also seek approval of the Notice to
Settlement Class Members. DE 127 at 5. The Court assesses the request by reviewing whether the
draft proposed notice and mechanics (DE 127-1 at 36-41) meet the specific and distinct
requirements for notice set by the FLSA and Rule 23. Ware, 2020 WL 2441415, at *18
Under the FLSA, notice goes out after a court conditionally approves a putative collective.
Id. at *5; see also Comer, 454 F.3d at 545. Notice provided under the FLSA must be “timely,
accurate, and informative.” Williams v. King Bee Delivery, LLC, No. 5:15-CV-306-JMH, 2017
WL 987452, at *7 (E.D. Ky. Mar. 14, 2017) (quoting Hoffman-LaRoche v. Sperling, 110 S. Ct.
482, 484 (1989)).
The notice requirements for a Rule 23(b)(3) class are “more extensive.” Ware, 2020 WL
2441415, at *18. There, given the due process concerns raised by settlements, “notice must be
reasonably calculated to reach interested parties.” Fidel v. Farley, 534 F.3d 508, 513-14 (6th Cir.
2008) (internal quotation marks and citations omitted). Rule 23(c)(2)(B) further requires that
notice of a Rule 23(b)(3) settlement be “the best notice that is practicable under the circumstances”
and also “clearly and concisely state in plain, easily understood language” the following:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the
member so desires;
(v) that the court will exclude from the class any member who requests
exclusion;
26

(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B); see also Ware, 2020 WL 2441415, at *18. Here, the proposed notice
makes clear to recipients that they are entitled to money, the reason, and that their rights are
affected by the contents of the notice. DE 127-1. It almost immediately establishes the definition
of the class: drivers and dispatchers working for Defendants through Defendants’ subcontractor
Act Fast Delivery of Kentucky, that were classified as independent contractors. DE 127-1 at 36.
The nature of the action and its claims and issues are accurately spelled out in the Introduction and
“What is this Case About” sections at the top of the second and third pages of the notice. DE 1271 at 37. The binding effect of the class judgment, and the effect of that judgment on parties’ rights,
is described as well. DE 127-1 at 41 ¶ 7. The notice also informs class members of their right to
opt-out and the process for requesting exclusion. DE 127-1 at 37 ¶ 9. However, the proposed
Notice does not appear to clearly notify class members that they may enter appearances through
an attorney if they desire, pursuant to Rule 23(c)(2)(B)(iv). The Parties shall ensure inclusion of
that requirement.
Although the Parties jointly stipulated that the Settlement Agreement controls when
inconsistencies between the Notice and the Agreement arise, see DE 127-1 at 32, the Court requires
resolution of any obvious discrepancies within the Notice. See DE 127-1 at 1–34 (Settlement
Agreement); DE 127-1 at 35–43 (Notice Form).
First, the Notice Form states that “[i]n the event there are no records of your miles driven
or weeks worked, you will be apportioned a reasonable approximate share of the settlement fund
based on the aggregate data available.” Id. at 39. However, the Notice Form retains the aggregate
calculation only for miles driven. See id. at 40–41. The Settlement Agreement only confirms that
“average mileage per delivery” will be used for those in the Driver Settlement Pool. Id. at 12.
27

Critically, the Settlement Agreement states that “[t]o the extent the information described above
or necessary to calculate a Settling Plaintiff’s distributive share is unavailable, the Parties will
assign the minimum recovery of $100 to such Settling Plaintiff[.]” Id. This suggests that for drivers
without data, $100 will be the payment. The Notice should accurately reflect the Agreement’s
terms.
Second, the Notice Form leaves blank the approximate dollar amount and Class Member
size for the Driver Settlement Pool and Dispatcher Settlement Pool. Id. at 40. However, the
Settlement Agreement provides for approximate numbers for both pools. Id. at 11. The Parties
should ensure that those numbers are entered into the Notice Form.
Third, the Notice Form and the Settlement Agreement both allow for an individual to
submit a dispute to the Claims Administrator if the individual believes that the miles driven or
weeks worked is incorrect in the Notice Form. Id. at 23, 40. The Notice Form states that the dispute
must be received by a certain date. Id. at 40. The Settlement Agreement, however, does not set a
timeline. Id. at 23. Curiously, this is the only timing issue between the two forms that does not
have some sort of trigger. The Parties shall ensure a fair period (no less than 30 days from mailing
of notice to a Class Member) for notification to the Claims Administrator that the Class Member
contests details of the calculation in the Notice.
Finally, the Notice Form states that an individual who wishes to object to the settlement
“must submit an objection” and that the objection “should be mailed to the Claims Administrator
at the address provided above.” Id. at 42 ¶ 8. Critically, the Settlement Agreement disagrees with
this procedure and states that the “Settlement Class Members must file with the Court and serve
on Counsel for the Parties” the objection. Id. at 24 (emphasis added). For clarity, and to ensure
that Settlement Class Members may appropriately object, this discrepancy must be addressed.

28

Of course, the Court expects the Parties to fill in date blanks and other precise details
consistent with this approval and the Settlement Agreement.
d. Approval of the Proposed Schedule & Procedure for Final Approval
of the Settlement Agreement
Finally, the Parties seek approval of the proposed schedule and procedure for final approval
of the Settlement Agreement. DE 127 at 8. The mechanics of that proposed process are laid out in
the agreement. DE 127-1 at part 7.C. The Court finds the dates and mechanics compliant with
requisites of law. The Parties will also ask the Court to schedule and conduct a Final Approval
hearing and to grant final approval to the settlement agreement according to the minimum timeline
laid out in 28 U.S.C. § 1715 (and no earlier than 120 days after the date of the Court’s preliminary
approval). DE 127-1 at 17. The Parties shall file a status report in seventy (70) days reporting on
progress and requesting assignment of the final hearing date, which shall tentatively be
approximately sixty (60) days following the filing of the report. The Parties will be required to
provide notice of the final date to all Class Members.
IV.

Conclusion

Accordingly,
1. Preliminary certification of the Rule 23 Class as defined in the proposed Settlement
Agreement is GRANTED; and
2. The FLSA collective (as defined in the Settlement Agreement) is CONDITIONALLY
CERTIFIED; and
3. The request to preliminarily appoint Plaintiff Daniel Davis as Class Representative is
GRANTED; and
4. Plaintiff’s counsel (as identified in the Settlement Agreement) are PRELIMINARILY
APPOINTED as Class Counsel; and

29

5. The appointment of Kentucky Legal Aid as the cy pres beneficiary is PRELIMINARILY
APPROVED; and
6. The request for attorney fees and expenses is GRANTED as stated;
7. This terminates by GRANT DE 127 & terminates DE 128; and
8. The request for approval of the Proposed Notice to the Settlement Class Members, and the
proposed schedule and procedure for the final approval is GRANTED, though on the
stated terms, which require noted conforming corrections and modifications to the draft
notice.

This the 30th day of March, 2021.

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