Risch v. Natoli Engineering Company, LLC
Filing
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MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the parties Consent Motion for Settlement (Doc. No. 55) and for Final Approval of the Parties Class Action Settlement Agreement (Doc. No. 55-1) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion fo r Approval of Fees and Costs (Doc. No. 64) is GRANTED.IT IS FURTHER ORDERED that the parties shall distribute the settlement funds, in accordance with the terms of this Memorandum and Order and the SettlementAgreement. IT IS FURTHER ORDERED that Coun t III of Plaintiffs Complaint isDISMISSED with prejudice. re: 64 FINALLY, IT IS ORDERED that the claims of all named Plaintiffs and all class members who did not affirmatively opt out of this action are DISMISSED with prejudice. MOTION for Attorney Fees filed by Plaintiff Melanie Risch Signed by District Judge Audrey G. Fleissig on 9/24/12. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MELANIE RISCH, individually and
on behalf of others similarly situated,
Plaintiff,
vs.
NATOLI ENGINEERING
COMPANY, LLC,
Defendant.
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Case No. 4:11CV1621 AGF
MEMORANDUM AND ORDER
This action, brought pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §
216(b), is before the Court for final approval of proposed class action settlement. (Doc.
No. 55.) On April 13, 2010, Plaintiff, individually and on behalf of others similarly
situated, filed a complaint against Defendant Natoli Engineering Company, LLC, alleging
that she and other non-exempt hourly customer service representatives employed at
Defendant’s call center located in Saint Charles, Missouri, performed overtime work
without receiving overtime pay as required pursuant to the FLSA (Count I), the MMWL
(Count II), and Missouri common law (Count III).1 On November 21, 2011, the Court
conditionally certified a plaintiff class under the FLSA and notice of the opportunity to
join in the suit was approved and sent to putative class members. (Doc. No. 20.)
Following discovery, the matter was referred for mediation. After a fourteen hour,
arm’s-length mediation session, the parties achieved a proposed class action settlement,
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Count III will be dismissed as part of the settlement.
the terms and conditions of which are set forth in the Parties’ Class Action Settlement
Agreement (“Settlement Agreement”) (Doc. No. 55-1.) On August 7, 2012, the Court
issued a Memorandum and Order, granting certification of a class for settlement
purposes, approving a form of notice to class members, and giving preliminary approval
to the Settlement Agreement. (Docket No. 61.) Plaintiffs also have filed a Motion for
Attorney’s Fees. (Doc. No. 64 and supporting affidavits.)
After notice and hearing, and having considered all filings and proceedings herein,
and noting that no objections to approval of the Settlement Agreement have been filed by
any class members, the Court finds that the Settlement Agreement is fair, adequate, and
reasonable and awards Plaintiffs their requested attorney’s fees and costs.
Applicable Law
When employees bring a private action for unpaid wages under the FLSA, and
present to the district court a proposed settlement, the district court may enter a stipulated
judgment after scrutinizing the settlement for fairness. Martin v. Spring Break ‘83 Prod.,
LLC, 688 F.3d 247, 255 (5th Cir. 2012) (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S.
697, 714 (1945)). If the Court is satisfied that a settlement reached in adversarial
proceedings represents a fair and equitable compromise of a bona fide wage and hour
dispute, the settlement may be approved, and stipulated judgment entered. Id. at 255; see
also Sanderson v. Unilever Supply Chain, Inc., No.10-CV-00775-FJG, 2011 WL
5822413, at *3 (W.D. Mo. Nov. 16, 2011); Moore v. Ackerman Investment Co., No. C
07-3058-MB, 2009 WL 2848858, *2 (N.D. Iowa Sept. 1, 2009); Collins v. Sanderson
Farms, Inc., 568 F. Supp. 2d 714, 718-19 (E.D. La. 2008).
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To determine whether the settlement is fair and reasonable under the FLSA, the
Court considers the fairness factors typically applied to a class action certified under
Federal Rule of Civil Procedure 23. Those factors are: the extent of discovery that has
taken place; the stage of the proceedings, including the complexity, expense, and likely
duration of the litigation; the absence of fraud or collusion in the settlement; the
experience of counsel who have represented the plaintiffs; the opinions of class counsel
and class members after receiving notice of the settlement whether expressed directly or
through failure to object; and the probability of the plaintiffs’ success on the merits and
the amount of the settlement in relation to the potential recovery. Lynn’s Food Stores,
Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982); Moore, 2009 WL 2848858,
at *2.
Analysis
The Court has jurisdiction over the subject matter of this proceeding and personal
jurisdiction over all parties to this proceeding, including all class members. In addition,
the Court finds, as set forth in its August 7, 2012 Order, that the Settlement Class2 is
properly certified, pursuant to the applicable requirements, for final approval of this class
action settlement under the FLSA and under the provisions of Fed. R. Civ. P. 23. The
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The Settlement Class includes two sub-classes: (1) all persons who worked for
Defendant as customer service/order entry employees from on or after September 19,
2008, through the payroll period ending March 30, 2012, and who timely filed an
“opt-in” notice pursuant to the Court's conditional certification of the collective action
class in Count I, and (2) all persons who worked for Defendant as customer service/order
entry employees from on or after September 19, 2009, through the payroll period ending
March 30, 2012, and who do not file an election to “opt-out” of the Rule 23 Class
established pursuant to Count II. (Doc. No. 55-1, at 2.)
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Court further finds that adequate notice of the proposed settlement has been disseminated
to the 32 class members,3 as set forth in the Settlement Agreement and previously
approved by this Court. The notices informed class members of their right to exclude
themselves from the settlement, as well as their right to object to any aspect of the
proposed settlement, including the estimated amount of their respective shares of the
Gross Settlement Amount. There is no indication on the record that any mailed notices
were returned for improper addresses and the parties have represented to the Court that
all members of the putative classes received notice.
After adequate notice, a hearing on the fairness, reasonableness, and adequacy of
the settlement, and the expiration of the designated time for objection, no objection to the
Settlement Agreement has been filed by any class member. Of the 32 potential class
members, none requested to opt out of the Settlement Agreement.4 Pursuant to its terms,
the Settlement Agreement is binding on the named Plaintiffs and all class members who
did not opt out, as well as their heirs, executors and administrators, successors and
assigns, and those terms shall be res judicata and hold other preclusive effect in all
pending and future claims, lawsuits or other proceedings maintained by or on behalf of
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Of the 32 class members, 17 belong to the FLSA “opt-in” subclass and 15 to
the Rule 23 “opt-out” subclass.
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At the hearing on the proposed settlement, the parties agreed that they had no
objection to the request of class member Jennifer Bergauer (Doc. No. 66) to rescind her
earlier decision to “opt- out” of the Rule 23 subclass. For purposes of clarification, the
Court therefore recognizes Ms. Bergauer as a member of the Rule 23 subclass to be
bound along with all other members of the Settlement Class by the terms of the
Settlement Agreement.
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any such persons, to the extent those claims, lawsuits or other proceedings constitute
released claims as set forth in the Settlement Agreement.
This settlement is the product of contested litigation, as the parties disputed
numerous aspects of this case. Although the parties had little disagreement on the
question of liability they disagreed vehemently with respect to the amount of damages
recoverable. The parties disagreed as to whether unpaid overtime wages should be at one
and one half times the regular rate or at a halftime rate. The resolution of this issue is
unresolved under current law and may be a question of fact requiring a jury
determination. The parties’ settlement obviated the time and expense of a jury trial. The
parties also disagreed about whether the rounding of clock-in and clock-out times by
Defendant’s “timekeeper software” was unlawful and about the affect of the rounding on
the amount of recoverable damages. The Settlement Agreement includes an unpaid wage
calculation premised upon the one and one-half times wage rate and resolution of the
rounding issue in a manner most favorable to the Settlement Class. The parties also
contested issues related to Defendant’s alternating workweek schedule and the inclusion
of an additional year of unpaid wages in the damage calculation. They reached
compromise on each of these issues with Defendant agreeing to pay the third year’s
wages and a portion of the time period affected by the alternating work week schedule.
Pursuant to the terms of the Settlement Agreement the Plaintiff Class will recover
$99,620.52 of the $215,000.00 Gross Settlement Amount. The portion of the Gross
Settlement Amount paid directly to Plaintiffs constitutes 85-90% of the projected
recovery estimated by Class Counsel had the parties proceeded to trial. After the Court
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granted conditional certification, the parties engaged in extensive fact discovery,
exchanging and reviewing significant numbers of documents. Class Counsel received all
documents necessary to evaluate the class claims and damages. The Settlement
Agreement resulted from intensive and non-collusive arms-length negotiations, including
a lengthy mediation session, and takes into account the amount of overtime hours worked
by the class members, the technical issues associated with calculating overtime hours, and
the risks of continuing this litigation.
Each party was represented by competent counsel during settlement negotiations
and throughout the pendency of this case. The parties have developed their cases enough
to know the potential recovery and the relative risks of proceeding to trial with their
claims, yet the litigation was not so advanced or unduly prolonged that the parties cannot
realize significant benefits by settling before filing motions for summary judgment and
trial.
The terms of the Settlement Agreement have no obvious deficiencies and do not
improperly grant preferential treatment to any individual class member. The Court
approves payment of an individual incentive award to the named Plaintiff in the amount
of $5,000.00 as set forth in the Settlement Agreement for her services as class
representative. The class representative incentive award is reasonable and appropriate
and shall be made from the settlement fund in accordance with the terms of the
Settlement Agreement. See, e.g., Crocker v. KV Pharmaceutical Co., No. 4:09-CV-198
(CEJ), at *8 (E.D. Mo. May 4, 2012) (approving an incentive awards of $4,000 and
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$8,000); Wolfert v. UnitedHealth Group, Inc., No. 4:08CV01643(TIA), at *4 (E.D. Mo.
Aug. 21, 2009) (approving an incentive award of $30,000).
In granting final approval of the Settlement Agreement, the Court has considered
the nature of the claims, the amounts and kinds of benefits paid in settlement, the
allocation of settlement proceeds among the class members, and the fact that a settlement
represents a compromise of the parties’ respective positions rather than the result of a
finding of liability at trial.
On the basis of the foregoing, the Court finds that the parties had a bona fide
dispute, and that the Settlement Agreement is a good faith compromise, as neither party
has received everything it demanded. In addition, the Court finds no basis to doubt that
the Settlement Agreement was made in good faith; and that the monetary value and terms
of the Settlement are fair, reasonable, adequate, and in the best interest of all parties
including each of the plaintiff class members. Therefore, the Court will grant final
approval of the terms and conditions contained in the Settlement Agreement.
Having approved the Settlement Agreement, the Court further finds that as of the
date of this Memorandum and Order, the named Plaintiffs and all class members who did
not affirmatively opt-out shall be bound by the releases set forth in the Settlement
Agreement. Except as to such rights or claims as may be created by the Settlement
Agreement, all class members who did not timely opt out as of the date of this
Memorandum and Order are hereby forever barred and enjoined from prosecuting or
seeking to reopen settled claims, and any other claims released by the Settlement
Agreement against the Defendants.
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Without affecting the finality of the Settlement or Judgment, this Court shall retain
exclusive and continuing jurisdiction over the parties, including all class members,
relating to the Action and the administration, consummation, enforcement and
interpretation of the Settlement Agreement. The terms of the Settlement Agreement and
this Memorandum and Order are binding on and inure to the benefit of the Parties as set
forth in the Settlement Agreement as well as their heirs, trustees, executors,
administrators, successors and assigns.
Attorney’s Fees and Costs
After a careful review of the case and the motion and supporting materials and
affidavits, the Court finds that the requested attorney’s fees and costs are also fair and
reasonable. It is well established that “[t]he starting point in determining attorney fees is
the lodestar, which is calculated by multiplying the number of hours reasonably expended
by the reasonable hourly rate[].” Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th
Cir. 2002).
The Court confirms that Class Counsel, Russell C. Riggan, Sam Moore, D. Eric
Sowers, Fern Wolfe, and Elizabeth S. Dillon adequately and ably represented the Plaintiff
class for purposes of entering into and implementing the Settlement Agreement. As class
counsel they have researched, briefed and argued contested issues, undertaken significant
discovery, negotiated with opposing counsel, participated in mediation, and implemented
all notification requirements.
Defendant does not oppose the award of attorney’s fees and costs requested by
Class Counsel and the Court’s review of the supporting documentation for those fees
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persuades it that both the number of hours and the hourly rates requested are reasonable
based on the novelty and complexity of the issues presented, counsel’s expertise, and the
time and effort necessarily expended in this case. Thus, Class Counsel’s request falls
within the range of reasonableness and the Court is satisfied that the result achieved by
the Settlement Agreement justifies the award of fees and costs.
Therefore, the Court concludes that an award of attorney’s fees in the amount of
$112,997.50 and litigation costs in the amount of $2,381.98 as final payment for, and
complete satisfaction of, any and all attorney’s fees and costs incurred by and/or owed to
Class Counsel will be granted. The payment of fees and costs shall be made from the
Gross Settlement Amount in accordance with the terms of the Settlement Agreement.
Accordingly,
IT IS HEREBY ORDERED that the parties’ Consent Motion for Settlement
(Doc. No. 55) and for Final Approval of the Parties’ Class Action Settlement Agreement
(Doc. No. 55-1) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Approval of Fees and
Costs (Doc. No. 64) is GRANTED.
IT IS FURTHER ORDERED that the parties shall distribute the settlement
funds, in accordance with the terms of this Memorandum and Order and the Settlement
Agreement.
IT IS FURTHER ORDERED that Count III of Plaintiff’s Complaint is
DISMISSED with prejudice.
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FINALLY, IT IS ORDERED that the claims of all named Plaintiffs and all class
members who did not affirmatively opt out of this action are DISMISSED with
prejudice.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 24th day of September, 2012.
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