Rivera v. Express Scripts, Inc. et al

Filing 36

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the parties joint motion for approval of the FLSA collective action settlement agreement reached in this case, as amended in accordance with Exhibit A, is GRANTED. (Doc. Nos. 32 and 35.) IT IS FURTHER O RDERED that the parties shall proceed to provide notice to the collective class in accordance with the procedures set forth in the settlement agreement in the form of the Amended Notice (Doc. No. 35-1). IT IS FURTHER ORDERED that the parties shall file dismissal papers in accordance with the terms of the settlement agreement. Signed by District Judge Audrey G. Fleissig on 3/4/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LUZ E. RIVERA, individually and on
behalf of all other similarly situated
individuals,
Plaintiff,
v.
EXPRESS SCRIPTS, INC., and
CURASCRIPT, INC.,
Defendants.

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Case No. 4:13CV00658 AGF

MEMORANDUM AND ORDER
This action for unpaid overtime wages under the Fair Labor Standards Act, 29
U.S.C. § 201, et seq., and under state law for breach of contract is before the Court on the
parties’ joint motion for approval of the settlement agreement reached by the parties
through Court-ordered mediation. The parties seek certification of a collective class
under the FLSA of all current and former Patient/Client Advocates employed by
Defendant CuraScript, Inc. (a wholly owned subsidiary of Defendant Express Scripts,
Inc.) in Orlando, Florida, or Indianapolis, Indiana, who worked at least 39 hours in any
one week from April 1, 2011, to May 27, 2013. They also seek appointment of the
named Plaintiff as collective class representative; appointment of the named Plaintiff’s
counsel as collective class counsel; approval of the parties’ proposed form and method of
giving potential collective class members notice; and approval of the settlement
agreement’s provisions for attorney’s fees for Plaintiff’s/class counsel, and an incentive

award to the named Plaintiff, both of which are to come out of the settlement fund. The
parties have submitted a copy of the Settlement Agreement and of the amended proposed
Notice of Settlement, Claim Form, and related documents to be sent to potential
claimants. (Doc. No. 32.)1 A hearing on the fairness of the proposed settlement and
notice and claim forms was held on February 12, 2014, at which certain settlement terms
were modified. The parties thereafter filed an Amended Notice of Settlement and Claim
Form. (Doc. Nos. 35, 35-1, and 35-2, filed under seal.)
When an FSLA collective action is settled, the court must scrutinize the proposed
settlement documentation and make findings that the litigation involves a bona fide
dispute and that the proposed settlement is fair and equitable to all parties concerned and
that it provides for an award of reasonable attorney’s fees. Lynn’s Food Stores, Inc. v.
United States, 679 F.2d 1350, 1354 (11th Cir. 1982). Further, the Court must determine
whether the settling plaintiff has used the class action claim for unfair personal
aggrandizement in the settlement, with prejudice to absent putative class members. Id.
“To approve an FLSA settlement, the Court must find that (1) the litigation
involves a bona fide dispute, (2) the proposed settlement is fair and equitable to all parties
concerned and (3) the proposed settlement contains an award of reasonable attorney
fees.” Grove v. ZW Tech, Inc., No. 11–2445–KHV, 2012 WL 4867226, at *3 (D.
Kan. Oct. 15, 2012). To determine whether a settlement of an FLSA collective action is

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The parties characterized their motion as one seeking preliminary approval of the
settlement agreement. However, because a settlement of a FLSA collective action is
involved, and not a class action under Federal Rule of Civil Procedure 23, a bifurcated
approval procedure is not necessary.
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fair and equitable to all parties, courts apply the same fairness factors as apply to a
proposed class action settlement under Rule 23, which include “(1) whether the proposed
settlement was fairly and honestly negotiated, (2) whether serious questions of law and
fact exist which place the ultimate outcome of the litigation in doubt, (3) whether the
value of an immediate recovery outweighs the mere possibility of future relief after
protracted and expensive litigation and (4) the judgment of the parties that the settlement
is fair and reasonable.” Id.
Here, upon review of the complaint, the amended terms of the settlement
agreement, the Amended Notice of Settlement and other forms provided to all putative
claimants, the joint memorandum in support of the motion for approval, and the
representations of counsel for Plaintiff to the Court as to the possible size of the
collective class, the Court finds that the litigation involves a bona fide dispute, and that
the settlement agreement is fair and equitable. Further, the form of Amended Notice of
Settlement (Doc. No. 35-1) is fair and accurate, and reasonably advises the putative
claimants of the terms of the settlement and their options with regard thereto.
The Court finds that the attorney’s fees and the enhanced payment for the named
Plaintiff set forth in Exhibit A hereto (filed under seal), are reasonable, and leave a
sufficient fund for payment of fair amounts to potential claimants. The Court notes that it
finds the enhanced payment to be reasonable based on the named Plaintiff’s extensive
contributions to the case as well as the broader release signed by her, which releases other
bona fide claims against Defendants.

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Accordingly,
IT IS HEREBY ORDERED that the parties’ joint motion for approval of the
FLSA collective action settlement agreement reached in this case, as amended in
accordance with Exhibit A, is GRANTED. (Doc. Nos. 32 and 35.)
IT IS FURTHER ORDERED that the parties shall proceed to provide
notice to the collective class in accordance with the procedures set forth in the settlement
agreement in the form of the Amended Notice (Doc. No. 35-1).
IT IS FURTHER ORDERED that the parties shall file dismissal papers in
accordance with the terms of the settlement agreement.
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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of March, 2014.

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