Burns et al v. EGS Financial Care, Inc.
ORDER - The Court GRANTS the parties' joint motion for settlement approval 51 as modified in their supplemental briefing 53 and as set forth in the Named Plaintiff Settlement 55 and Unnamed Plaintiff Settlement [55-1]. Signed on 9/19/16 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
LANCE BURNS, et al
EGS FINANCIAL CARE, INC.,
ORDER APPROVING FLSA SETTLEMENT
This case arises out of plaintiffs’ employment as telephone-dedicated customer service
representatives for Defendant EGS Financial Care, Inc. (“EGS”). Plaintiffs allege that EGS
violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, by failing to compensate
them for overtime hours worked.
Now before the Court is the parties’ joint motion for approval of settlement (Doc. 51) and
supplemental briefing to the joint motion to approve the FLSA settlement (Docs. 53, 55). For
the following reasons, the motion is GRANTED. Plaintiffs’ motion to certify class (Doc. 12) is
DENIED AS MOOT.
On December 15, 2015, Lance Burns, Cynthia Coons Annigan, Michael Rudesal, and
Susan Keller (“Named Plaintiffs”) filed this FLSA collective action against EGS on behalf of
themselves and all others similarly situated.
The remaining 110 plaintiffs (“Unnamed
Plaintiffs”) later joined this action by filing opt-in consent forms (Docs. 3-11, 25, 28, 29, 30,
34).1 Before plaintiffs’ motion for conditional certification of the class was ripe for review, the
parties reached proposed settlements of the Named Plaintiffs’ and Unnamed Plaintiffs’ claims.
The claims of thirteen unnamed plaintiffs that filed opt-in consent forms are not included in the proposed
settlement and have been dismissed without prejudice (Doc. 56).
There are two separate settlement agreements: one regarding the four Named Plaintiffs’ claims
(the “Named Plaintiff Settlement”) (Doc. 55), and another regarding the Unnamed Plaintiffs’
claims (the “Unnamed Plaintiff Settlement”) (Doc. 55-1).
Under the settlements, EGS will pay Named Plaintiffs and Unnamed Plaintiffs using the
following formula: (12 minutes per day x 5 days x the average hourly rate per minute x the
number of weeks worked between December 2012 and December 2015) – (paid time off
(“PTO”) x 1.25). Additionally, each of the Named Plaintiffs will receive a $250 enhancement
award in consideration for their role in the litigation. 30% of each individual’s compensation
will be set aside for attorneys’ fees.2 In return, the Named Plaintiffs and Unnamed Plaintiffs
agree to dismiss their FLSA claims against EGS with prejudice, release EGS from future liability
relating to employee compensation, and set aside 30% of each award for attorneys’ fees. Both
settlements also contain confidentiality clauses. Named Plaintiffs shall keep all non-public terms
and conditions of the settlement, non-public facts regarding EGS’s business operations, and the
negotiations concerning the settlement confidential (Doc. 55 ¶ 10). Unnamed Plaintiffs shall
keep all non-public terms and conditions of the settlement, the settlement amount, and nonpublic facts regarding EGS’s business operations confidential (Doc. 55-1 ¶ 8).
An employee may compromise or waive an FLSA claim “if [the] employee brings suit
directly against a private employer pursuant to § 216(b) of the statute, and the district court
enters a stipulated judgment” on the settlement after scrutinizing the settlement for fairness.
Copeland v. ABB, Inc., 521 F.3d 1010, 1014 (8th Cir. 2008) (noting that FLSA rights can only be
compromised in a court action where the employee initiates the lawsuit against the employer);
These fees are to be paid out after each settlement agreement is executed by the individual (Doc. 55 ¶ 8; Doc. 55-1
Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982). To approve an
FLSA settlement under 29 U.S.C. § 216(b), 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 attorneys’ fees.” Grove v. ZW Tech,
Inc., No. 11-2445-KHV, 2012 WL 4867226, at *3 (D. Kan. Oct. 15, 2012).
Public policy favors settlements of FLSA claims. Lynn’s Food Stores, 679 F.2d at 1354.
In reviewing a proposed settlement, a court must not substitute “its own judgment as to optimal
settlement terms for the judgments of the litigants and their counsel.” Petrovic v. Amoco Oil Co.,
200 F.3d 1140, 1148-49 (8th Cir. 1999) (affirming an order approving a proposed settlement in a
class action case).
The Court finds each Settlement satisfies all of the prerequisites for approval.
The parties have shown a bona fide wage and hour dispute exists.
To demonstrate a bona fide wage and hour dispute exists, the parties must provide the
reviewing court with the following information:
(1) a description of the nature of the dispute (for example, a
disagreement over coverage, exemption or computation of hours
worked or rate of pay); (2) a description of the employer’s business
and the type of work performed by the employees; (3) the
employer’s reasons for disputing the employees’ right to a
minimum wage or overtime; (4) the employees’ justification for
the disputed wages; and (5) if the parties dispute the computation
of wages owed, each party’s estimate of the number of hours
worked and the applicable wage.
Gambrell v. Weber Carpet, Inc., No. 10-2131-KHV, 2012 WL 162403, at *3 (D. Kan. Jan. 19,
The parties have demonstrated a bona fide dispute exists concerning: (1) whether
plaintiffs correctly followed company policy regarding login and timekeeping system access
procedures; (2) whether plaintiffs performed off-the-clock work; (3) the amount of such off-theclock work; (4) whether EGS had any knowledge of plaintiffs’ off-the-clock work; and (5)
whether plaintiffs’ off-the-clock work was de minimis and therefore not compensable as a matter
of law. EGS operates a collection business and employs collectors who work in its call centers
and remotely from their home offices using the business network. Plaintiffs here primarily
worked from home. Plaintiffs contend that pre-shift time spent accessing the business network
and timekeeping system is compensable. They further contend that the time spent logging into
and out of the network and timekeeping system for lunch breaks is compensable. EGS asserts
that no work was performed off the clock and it paid plaintiffs for every minute that they were
logged into the company’s timekeeping system. Plaintiffs allege that some employees were not
compensated by as much as 30 minutes each work day. EGS asserts that any unpaid time was de
Thus, a bona fide dispute exists.
Each settlement is fair and equitable to all parties.
To evaluate the fairness and equitableness of an FLSA settlement, the Court considers the
(1) at what stage of the litigation the settlement was reached, and the complexity,
expense, and likely duration of the remaining litigation; (2) how the settlement
was negotiated, i.e., whether there are any indicia of collusion; (3) class counsel,
the parties, and the class members’ opinions about the settlement; and (4) whether
the present value of the settlement outweighs the potential recovery after
McGee v. Concentra Health Servs., Inc., No. 12-CV-1277-W-DGK, 2015 WL 58532, at *3
(W.D. Mo. Jan. 5, 2015).
Taken together, these factors favor approving the settlements.
Though the parties
reached these agreements before performing substantive motion work, the Court stayed this
matter for the express purpose of allowing the parties to engage in meaningful discovery and
negotiate a settlement. The settlements were obtained after arms-length negotiations and there
are no indicia of collusion.3
The parties’ counsel agree that the agreements were fairly
negotiated, and the Named Plaintiffs have expressly stated that they agree to the settlement
terms. Plaintiffs have declined to pursue class certification. The Court further finds that the
agreements are equitable to the plaintiffs with regard to one another.
compensation paid to the Named Plaintiffs is only $250, and fairly accounts for the time and
effort the named plaintiffs have put forth in the litigation. Finally, the Court accepts the parties’
assertion that plaintiffs’ immediate recovery under the agreements outweighs the risk of taking
this claim to trial.
The settlements provide for a reasonable award of attorneys’ fees.
Finally, the settlements provide for a reasonable award of attorneys’ fees. The FLSA
entitles a prevailing plaintiff to an award of fees and costs, and although the court has discretion
in determining what a reasonable fee is, a fee award is mandatory. Gambrell, 2012 WL 162403,
at *2. Because the settlements provide plaintiffs with some benefit, they are the prevailing party
and their attorneys are entitled to a reasonable fee.
Under the agreements, plaintiffs’ counsel’s fees are individualized and directly related to
each settlement. Counsel will recover 30% of each settling plaintiff’s individual gross settlement
amount, and counsel will be compensated only for such plaintiffs who actually claim their
The Court has expressed concerns about the confidentiality clauses of the agreements, given the presumption in
favor of openness attending FLSA wage-settlement agreements. See, e.g., Stewart v. USA Tank Sales & Erection
Co., Inc., No. 12-051360-CV-SW-DGK, 2014 WL 836212, at *7 (W.D. Mo. Mar. 4, 2014). Here, the settlement
calculation formula is part of the judicial record and is available to the public, and both Named and Unnamed
Plaintiffs may disclose the formula under the terms of the confidentiality clauses. Further, the agreements do not
contain a liquidated damages penalty in the event of a breach related to the confidentiality clauses. For these
reasons, the Court finds that the confidentiality clauses are fair and equitable.
settlement payment. If each plaintiff claims his or her settlement, plaintiffs’ counsel will receive
a gross amount of $33,630.64, an amount slightly less than the lodestar amount calculated in
their brief. Supp. Br. at 3 (calculating a lodestar amount of $34,408.25 for hours worked by
attorneys and a paralegal).
The Court finds that this amount is reasonable under the
Because the relevant factors support approval, the Court GRANTS the parties’ joint
motion for settlement approval (Doc. 51) as modified in their supplemental briefing (Doc. 53)
and as set forth in the Named Plaintiff Settlement (Doc. 55) and Unnamed Plaintiff Settlement
(Doc. 55-1) submitted to the Court. Plaintiffs’ motion to conditionally certify the class (Doc. 12)
is DENIED AS MOOT.
IT IS SO ORDERED.
Date: September 19, 2016
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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