Benjamin v. DJGN LLC

Filing 49

ORDER granting 47 Plaintiffs' unopposed Motion for Final Approval of Rule 23 Settlement, for Payment of Attorneys' Fees, Costs, and Expenses, and for Entry of Final Judgment. Signed by Judge Timothy S. Black on 11/13/2023. (rrs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ESTATE OF GARETH BENJAMIN,
JOHN HARLEY, CHRISTOPHER
SULLIVAN, AND AUSTIN BRADY,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
vs.
DJGN LLC, DJGN LEXINGTON, LLC,
and DJGN INDY, LLC d/b/a TONY’S
STEAKS & SEAFOOD,
Defendants.

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Case No. 1:22-cv-166
Judge Timothy S. Black

ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL
APPROVAL OF RULE 23 SETTLEMENT, FOR PAYMENT OF ATTORNEYS’
FEES, COSTS, AND EXPENSES, AND FOR ENTRY OF FINAL JUDGMENT
This civil case is before the Court on Plaintiffs’ unopposed motion for final
approval of the class action settlement, for payment of attorneys’ fees, costs, and
expenses, and for entry of final judgment (Doc. 47).
I.

BACKGROUND

This is a collective and class action against Defendants DJGN LLC, DJGN
Lexington, LLC, and DJGN Indy, LLC d/b/a Tony’s Steaks & Seafood. Specifically, in
the operative Second Amended Complaint, Plaintiffs Gareth Benjamin (Ohio), 1
Christopher Sullivan (Kentucky), and Austin Brady (Indiana) (collectively, “Named

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On June 22, 2023, the Estate of Gareth Benjamin was substituted as named plaintiff in place of
Gareth Benjamin. (Not. Order, June 22, 2023).

Plaintiffs”) allege that Defendants required servers at their Ohio, Kentucky, and Indiana
restaurants, who are tipped employees, to participate in a tip pooling arrangement with
management and supervisory employees, in violation of both the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and state wage laws. (Doc. 39).
The parties have entered into a Settlement Agreement to resolve the FLSA claims
of those individuals who opted into the settlement and to resolve the state law claims on a
class action basis. (Doc. 40-1). On May 3, 2023, the Court granted Plaintiffs’ unopposed
motion for Rule 23 class certification for settlement purposes, for preliminary approval of
Rule 23 class action settlement, and for approval of the FLSA collective action
settlement. (Doc. 44). Notice was sent to class members. (Doc. 48-2). And, on October
30, 2023, the Court held a fairness hearing to consider final approval of the settlement.
II.

ANALYSIS

The FLSA Settlement is approved.
The parties’ settlement agreement resolves the FLSA collective action claims of
any Plaintiffs who opted into the action and any Class Member who returned a claim
form. (Doc. 40-1 at Sec. 4.2.1).
The goal of the FLSA is to ensure that a covered employee receives a “fair day’s
pay for a fair day’s work” and is “protected from the evil of overwork as well as
underpay.” Kritzer v. Safelite Solutions, LLC, 2012 WL 1945144, at *5 (S.D. Ohio May
30, 2012) (quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739
(1981)). The FLSA further provides that an employer that violates the Act’s
requirements regarding minimum wages or overtime “shall be liable to the employee or
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employees affected in the amount of their unpaid minimum wages, or their unpaid
overtime compensation, as the case may be, and in an additional equal amount as
liquidated damages.” 29 U.S.C. § 216(b). “The FLSA’s provisions are mandatory and,
except as otherwise provided by statute, are generally not subject to being waived,
bargained, or modified by contract or by settlement.” Kritzer, 2012 WL 1945144, at *5
(citations omitted).
FLSA claims may be compromised, however, “when a court reviews and approves
a settlement agreement in a private action.” Id. (citing Lynn’s Food Stores, Inc. v. United
States, 679 F.2d 1350, 1353 (11th Cir. 1982)). In such circumstances, the Court must
first determine that there is a bona fide dispute between the parties as to the employer’s
liability under the FLSA. Id.; see also Lynn's Food Stores, 679 F.2d at 1353 n.8. The
existence of a bona fide dispute under the FLSA confirms that “the parties are not, via
settlement of the plaintiffs’ claims, negotiating around the clear FLSA requirements of
compensation for all hours worked, minimum wages, maximum hours, and overtime.”
Kritzer, 2012 WL 1945144, at *5 (citations omitted).
For the FLSA claims, the Court previously approved the Settlement Agreement as
to any Plaintiffs who had already opted into the action and as to those actively opting into
the action by submitting a claim form. (Doc. 44 at 8). Now that claim forms have been
submitted, the Court reiterates its approval of the FLSA claims for those individuals who
opted into the action. Specifically, the Court finds that the parties’ resolution of the
FLSA claims set forth in the Settlement Agreement represent a fair and reasonable
resolution of contested issues under the FLSA, including but limited to whether
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Defendants violated the FLSA by requiring servers to share tips with management.
Accordingly, the FLSA Settlement between Defendants and opt-in Plaintiffs remains
APPROVED.

B. The Settlement Classes are appropriate for Rule 23 certification.
Plaintiffs move for final certification of Rule 23 classes for their state law claims.
“The benefits of a settlement can be realized only through the final certification of
a settlement class.” Rikos v. Proctor & Gamble Co., No. 1:11-CV-226, 2018 WL
2009681, at *4 (S.D. Ohio Apr. 30, 2018). The Court maintains broad discretion in
deciding whether to certify a class.
Named Plaintiffs seek final certification of the following Settlement Classes:
The Rule 23 Ohio Class
All current and former Servers of Defendant DJGN LLC at its
Cincinnati, Ohio restaurant who worked as a Server at any time
from March 30, 2019 through July 1, 2022.
The Rule 23 Kentucky Class
All current and former Servers of Defendant DJGN Lexington,
LLC at its Lexington, Kentucky restaurant who worked as a
Server at any time from March 3, 2017 to July 1, 2022.
The Rule 23 Indiana Class
All current and former Servers of Defendant DJGN Indy, LLC
at its Indianapolis, Indiana restaurant who worked as a Server
at any time from April 4, 2020 to July 1, 2022.
a. Numerosity
Rule 23(a)(1) requires a plaintiff to demonstrate that “the class is so numerous that
joinder of all members is impracticable.” While no specific number of class members is
required to maintain a class action, “[w]hen class size reaches substantial proportions ...

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the impracticability requirement is usually satisfied by the numbers alone.” In re Am.
Med. Sys. Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citation omitted). There were 79
Kentucky Class Members, 42 Ohio Class Members, and 52 Indiana Class Members
identified, totaling 173 individuals across the three classes. (E.g., Doc. 40-1 at 3). The
Court finds that this satisfies the numerosity requirement.
b. Commonality
Rule 23(a)(2) requires “questions of law or fact common to the class.”
Commonality does not require “the raising of common ‘questions’—even in droves—but,
rather the capacity of a classwide proceeding to generate common answers apt to drive
the resolution of the litigation.” Zehentbauer Fam. Land, LP v. Chesapeake Expl.,
L.L.C., 935 F.3d 496, 503 (6th Cir. 2019) (quoting Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348 (2011)). Indeed, one common question of law or fact may satisfy this
requirement. Pansiera v. Home City Ice Co., 341 F.R.D. 223, 232 (S.D. Ohio 2022).
Here, Named Plaintiffs’ and Class Members’ claims all turn on common questions
of law and fact. Specifically, Named Plaintiffs’ and Class Members’ claims raise the
same common question: whether Defendants’ mandatory tip-sharing with management
violated applicable state laws. Accordingly, commonality is satisfied.
c. Typicality
Rule 23(a)(3) provides that “the claims or defenses of the representative parties
[shall be] typical of the claims or defenses of the class.” The typicality element is
designed to assess “whether a sufficient relationship exists between the injury to the
named plaintiff and the conduct affecting the class, so that the court may properly
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attribute a collective nature to the challenged conduct.” Sprague v. General Motors
Corp., 133 F.3d 388, 399 (6th Cir. 1998). 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 the named plaintiff’s claims are based on the same legal theory. In re
Am. Med. Sys., Inc., 75 F.3d at 1082.
Here, Named Plaintiffs’ and Class Members’ claims arise from the same conduct
and are based on the same legal theory: whether Defendants violated applicable state
laws by requiring servers to share tips with management. Accordingly, the typicality
element is satisfied.
d. Adequacy of Representation
Rule 23(a)(4) requires that “the representative parties will fairly and adequately
protect the interest of the class.” The Sixth Circuit has counseled that there are two
criteria for determining this element: (1) the representatives must have common interests
with the unnamed class members, and (2) it must appear that the representatives will
vigorously prosecute the class action through qualified counsel. See Senter v. Gen.
Motors Corp., 532 F.2d 511, 524-25 (6th Cir. 1976) (citation omitted).
Here, adequacy of representation is met. Named Plaintiffs and Class Members
possess the same interests and suffered the same injury: each were servers at a Tony’s
Steak & Seafood location who were allegedly required to share tips with management.
Named Plaintiffs, with the assistance of counsel, have vigorously pursued their claims.
Moreover, the classes are represented by extremely qualified counsel with extensive
experience prosecuting class actions. (See Doc. 41-2).
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e. Rule 23(b)
Not only must the four prerequisites of Rule 23(a) be met before a class can be
certified, but “the party seeking certification must also demonstrate that it falls within at
least one of the subcategories of Rule 23(b).” In re Am. Med. Sys., 75 F.3d at 1079.
Plaintiff argues that the class falls within Rule 23(b)(3), which states a class action may
be maintained if:
[T]he court finds that the questions of law or fact common to
the members of the class 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:
(A) the class members’ interest in individually controlling the
prosecuting or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already commenced 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).
Here, common questions predominate over questions affecting only individual
members. The predominating common issue shared by Named Plaintiffs and each class
member is whether Named Plaintiffs and Class Members state law rights were violated
when Defendants allegedly required them to share their tips with management. The

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resolution of these questions does not rise or fall on the individualized conduct of a class
member but on Defendants’ practices.
Further, the Court finds that, given the difficulties that would be inherent in
managing the Rule 23 classes, and the risk of inconsistent judgments, certification is the
most efficient, and the superior, means to adjudicate the claims at issue.
Accordingly, for the foregoing reasons, the Court GRANTS Named Plaintiffs’
request for final certification of the Rule 23 classes and certifies the Rule 23 classes.

c.

The notice program satisfied due process.

For a class certified under Rule 23(b)(3), notice must satisfy Rule 23(c)(2). To
satisfy Rule 23(c)(2), notice to class members must be “practicable under the
circumstances,” including providing “individual notice to all members who can be
identified through reasonable effort.” Indeed, the ultimate objective of notice
requirements is to satisfy due process. To comport with the requirements of due process,
notice must be “reasonably calculated to reach interested parties.” Fidel v. Farley, 534
F.3d 508, 514 (6th Cir. 2008) (citations omitted). “Due process does not, however,
require actual notice to each party intended to be bound by the adjudication of a
representative action.” Id.
Here, the Court approved the notice procedures when preliminarily approving the
settlement agreement. (Doc. 44). The notices described the terms of the Settlement,
including the request for attorneys’ fees and class representative award, the date of the
final fairness hearing, and how to object. (Doc. 40-1 at 27-30).

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On May 26, 2023, direct notice was first sent to 173 class members via First Class
U.S. Mail. (Doc. 48-2 at ¶ 5-6). On July 25, 2023, a reminder notice was sent to
individuals who had not yet submitted an electronic claim form. (Id. at ¶ 9). Forty-three
(43) notice packets were returned undeliverable; however, the settlement administrator
located an updated address for 37 individuals and re-sent the notice. (Id. at ¶ 10). After
these rounds of notices, only six notice packets remained undeliverable. (Id.). However,
of the six undelivered packets, only two individual class members did not submit a claim
form. (Id.)
Considering the notice procedures, nearly all Class Members received notice, and
the Court finds that the notice issued to class members satisfied (if not exceeded) the
requirements of the federal rules and due process.

D. The Settlement Agreement is approved.
Final approval of the proposed settlement is warranted if the Court finds the terms
of the settlement are “fair, reasonable, and adequate.” Granada Inv., Inc. v. DWG Corp.,
962 F.2d 1203, 1205–06 (6th Cir. 1992). When deciding whether a settlement should
receive final approval, the Court considers several factors:
(1) 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.
Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 244 (6th Cir.
2011) (quoting UAW v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007)). See also

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Fed. R. Civ. P. 23(e)(2). The Court “enjoys wide discretion in assessing the weight and
applicability of these factors.” Granada, 962 F.2d at 1205-06. Finally, in considering
these factors, the task of the court “is not to decide whether one side is right or even
whether one side has the better of these arguments…The question rather is whether the
parties are using settlement to resolve a legitimate legal and factual disagreement.”
UAW, 497 F.3d at 632.
1. Risk of Fraud or Collusion
Courts generally presume the absence of fraud or collusion unless proven
otherwise. See In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985, 1016 (S.D.
Ohio 2001) (“Courts respect the integrity of counsel and presume the absence of fraud or
collusion in negotiating the settlement unless evidence to the contrary is offered.”); In re
Delphi Corp. Sec., Derivative & “ERISA” Litig., 248 F.R.D. 483, 501 (E.D. Mich. 2008)
(“Without evidence to the contrary, the court may presume that settlement negotiations
were conducted in good faith and that the resulting agreements were reached without
collusion.”).
Here, the settlement was the result of arm’s-length negotiations conducted by
experienced counsel for both parties and in front of an experienced mediator. (E.g., Doc.
41-2 at ¶ 15). Accordingly, the Court concludes that the settlement was reached in good
faith and does not present the risk of fraud or collusion.
2. Complexity, Expense, and Duration of the Litigation
“Generally speaking, most class actions are inherently complex and settlement
avoids the costs, delays, and multitude of other problems associated with them.” In re
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Telectronics, 137 F. Supp. 2d at 1013 (quotation omitted). Although the specific facts
underlying this action may not have been complex—all Class Members were servers at
Tony’s restaurants who were allegedly required to share tips with management—there
would likely be dispute over the application of those facts—Defendants’ liability under
state laws, and any damages resulting therefrom. Without settlement, the parties would
likely expend significant time and money litigating this case through class certification,
dispositive motions, trial, and appeal. Additionally, proceeding as a class is an efficient
resolution of 173 potential actions for both the parties and the court system. Thus, this
factor weighs in favor of approval.
3. Amount of discovery
The parties exchanged a large amount of documents and information throughout
the litigation. Importantly, Defendants produced payroll and timekeeping data for Class
Members, which data was reviewed by an expert for Plaintiffs. (Doc. 41-2 at ¶ 17). Thus,
the Court concludes that the discovery conducted in this case was sufficient.
4. Likelihood of Success on the Merits
The settlement provides relief to 173 class members. Although Plaintiffs believe
that they would ultimately prevail on the issues, there is an inherent risk of litigation and
trial. Moreover, there is an inherent risk that Class Members would face inconsistent
judgments if they were to proceed on a case-by-case basis. By agreeing to the settlement,
risks are eliminated, and Class Members are guaranteed to receive an excellent recovery
now, rather than possibly receiving a recovery years from now (or not receiving any
recovery ever). This factor weighs in favor of approval.
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5. Opinion of Counsel & Representatives
The Class Representatives approve the settlement. (Doc. 41-3 at ¶ 8; Doc. 41-4 at
¶ 10; Doc. 41-5 at ¶ 10). Class Counsel also believes the settlement is fair, reasonable,
and adequate. (Doc. 41-2 at ¶ 18). Further, the competency and experience of Class
Counsel is not in dispute. This factor weighs in favor of approval.
6. Reaction of Absent Class Members
The reaction of absent class members strongly supports approving the settlement.
Of the 173 Class Members, no class member rejected, objected, or excluded themselves
from the settlement. Moreover, 131 of the 173 Rule 23 class members have returned
claims forms, claiming approximately 88% of the estimated net settlement funds. (Doc.
44 at ¶¶ 14-15). Accordingly, this factor weighs heavily in favor of approval.
7. Public interest
“[T]here is a strong public interest in encouraging settlement of complex litigation
and class action suits because they are ‘notoriously difficult and unpredictable’ and
settlement conserves judicial resources.” In re Cardizem CD Antitrust Litig., 218 F.R.D.
508, 530 (E.D. Mich. 2003) (quoting Granada, 962 F.2d at 1205); see also In re
Nationwide Fin. Servs. Litig., No. 2:08-cv-00249, 2009 WL 8747486, at *8 (S.D. Ohio
Aug. 19, 2009) (“[T]here is certainly a public interest in settlement of disputed claims
that require substantial federal judicial resources to supervise and resolve.”). This case is
no exception, and this factor weighs in favor of approval.

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Accordingly, considering the foregoing, all factors weigh in favor of approving the
settlement. The Court finds that the settlement is fair, reasonable, and adequate. The
settlement is approved.

E. Plaintiffs’ and Class Counsel are entitled to their requested fee.
Plaintiffs’ and Class Counsel (collectively, “Counsel”) requests an order
approving $500,000 in attorneys’ fees.
District courts may award reasonable attorneys’ fees and expenses from the
settlement of a class action under Rules 54(d)(2) and 23(h). When assessing the
reasonableness of a fee petition, district courts engage in a two-part analysis. See In re
Cardinal Health Inc. Sec. Litig., 528 F.Supp.2d 752, 760 (S.D. Ohio 2007). First, the
district court determines the method for calculating fees: either the percentage of the fund
approach or the lodestar approach. Id. (citation omitted). Second, the court must analyze
the six Ramey factors. Id. (citing Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188,
1196 (6th Cir. 1974)).
1. The Court Adopts the Percentage Approach.
In the Sixth Circuit, district courts have the discretion to determine the appropriate
method for calculating attorneys’ fees considering the unique characteristics of class
actions in general, as well as the particular circumstances of the actual cases pending
before the Court, using either the percentage or lodestar approach. Id. at 761. Here, the
Court uses the percentage approach given the common fund nature of the settlement.
Moreover, the Court finds that Counsel’s request for one-third of the common
fund to be reasonable; it is well within the range of fees typically approved by Courts in
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the Sixth Circuit. See In re Broadwing, Inc. ERISA Litig., 252 F.R.D. 369, 380-81 (S.D.
Ohio 2006) (“Attorneys fees awards typically range from 20 to 50 percent of the common
fund”) (collecting cases); In re Telectronics, 137 F. Supp. 2d at 1029 (“the range of
reasonableness ... has been designated as between twenty to fifty percent of the common
fund”); In re S. Ohio Corr. Facility, 173 F.R.D. 205, 217 (S.D. Ohio 1997), rev’d on
other grounds, 24 Fed. Appx. 520 (6th Cir. 2001) (“[t]ypically, the percentage awarded
ranges from 20 to 50 percent of the common fund”).
2. Ramey Factors
In reviewing the reasonableness of the requested fee award, the Sixth Circuit
requires district courts to consider six factors, known as the Ramey factors: (1) the value
of the benefits rendered to the class; (2) society’s stake in rewarding attorneys who
produce such benefits in order to maintain an incentive to others; (3) whether the services
were undertaken on a contingent fee basis; (4) the value of the services on an hourly basis
(the lodestar cross-check); (5) the complexity of the litigation; and (6) the professional
skill and standing of counsel on both sides. Ramey, 508 F.2d at 1196. After review, the
Court concludes that all factors weigh in favor of the reasonableness of the fee award.
a. Value of the benefits
Counsel’s work resulted in a benefit of $1,500,000 to the class. The benefit
provides significant tangible relief to Class Members now and eliminates the risk, the
uncertainty, and the inconsistent judgments parties would otherwise incur if this litigation
were to continue. Moreover, Class Members seem to recognize the value of the benefits.
Discovery revealed 173 Class Members. After notice was sent, no Class Member opted14

out or objected to the settlement. And 131 Class Members have returned claims forms,
claiming 88% of the estimated net settlement funds. (Doc. 44 at ¶¶ 14-15).
b. Society’s stake
There is a benefit to society in ensuring that small claimants may pool their claims
and resources, and attorneys who take on class action cases enable this. See Moore v.
Aerotek, Inc., Case No. 2:15-cv-2701, 2:15-cv-1066, 2017 WL 2838148, at *8 (S.D. Ohio
June 30, 2017) (citation omitted). Here, Counsel’s efforts resulted in a tangible reward
for Class Members. Many Class Members would not have been able or willing to pursue
their claims individually, and many would likely not even be aware that they had a claim
against Defendants. Id. Society has a stake in rewarding attorneys who achieve a result
that the individual class members probably could not obtain on their own. Id. (citation
omitted).
c. Contingent Fee Services
Despite the risks associated with prosecuting this case, Counsel litigated this
matter on a wholly contingent basis with no guarantee of recovery. (Doc. 48-1 at ¶ 10).
d. Lodestar Cross-Check
Conducting a lodestar cross-check is optional; however, the lodestar method also
supports Counsel’s fee request. Under the lodestar calculation, the Court multiplies the
number of hours reasonably expended on the litigation by a reasonable hourly rate. See
Gascho v. Global Fitness Holdings, LLC, 822 F.3d 269, 279 (6th Cir. 2016) (citation
omitted). The Court then has the discretion to enhance the lodestar with a separate
multiplier that can serve to account for the risk an attorney assumes in undertaking a case,
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the quality of the attorney’s work product, and the public benefit achieved. Id. at 279,
280.
Here, up to October 10, 2023, Counsel expended over 700 total hours on this case
which, at their customary billing rates, provided a cumulative lodestar of $303,251.50,
more than the requested fee. 2 (Doc. 48-1 at ¶¶ 4-8). The lodestar results in a multiplier
of 1.65, which well within the range of multipliers for cases such as this. E.g., Dillow v.
Home Care Network, Inc., No. 1:16-CV-612, 2018 WL 4776977, at *7 (S.D. Ohio Oct. 3,
2018) (approving 2.9 multiplier) (collecting cases). Thus, the lodestar cross-check
supports the requested fee award.
e. Complexity of the Litigation
As already discussed, the litigation was complex, and resolving the merits of
litigation through dispositive motions, trial, or appeal would have been risky, costly, and
time consuming. See Sec. D(2), supra.
f. Skill of Counsel
Finally, the Classes and Defendants are represented by highly experienced
counsel. There is no dispute that all counsel are highly qualified and have substantial
experience in federal courts and class action litigation.
Accordingly, considering all the factors, the Court determines the fees requested
are reasonable, and GRANTS Counsel’s request for fees in the amount of $500,000.

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The motion requesting attorneys’ fees did not mention how many hours Counsel expended in
the litigation up to the date of filing their motion. (See Doc. 47). However, at the fairness
hearing, Counsel represented to the Court that Counsel expended over 700 hours, which the
Court finds sufficient to review the lodestar cross-check.

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F. Counsel is entitled to reimbursement of expenses.
Under the common fund doctrine, Counsel are entitled to reimbursement of all
reasonable out-of-pocket expenses and costs incurred in the prosecution of claims and in
obtaining settlement. See In re Cardizem, 218 F.R.D. at 535. Expense awards are
customary when litigants have created a common settlement fund for the benefit of a
class. Id. (quotation omitted).
Here, Counsel requests $25,142.42 in litigation expenses. Counsel avers that these
were reasonably incurred to advance the claims in this case. (Doc. 48-1 at ¶ 9). Upon
review, all of Counsel’s expenses were reasonable and necessary in connection with
litigating and resolving this case and are therefore reimbursable. Moreover, absent Class
Members and Defendants do not dispute that the fees are reasonable and reimbursable.
Accordingly, the Court GRANTS Counsel’s request for $25,142.42 in expenses.

G. The Court approves the administrative and notice expenses.
The settlement agreement contemplates that settlement administrative fees will be
disbursed from the common fund. (E.g., Doc. 40-1 at 4, Sec. 2.15). Counsel now
requests that the Court approve payment of settlement administration costs from the
common fund. (Doc. 48 at 13). The settlement administrator estimates that the total
costs to administer the settlement will be $17,500. (Doc. 48-2 at ¶ 16). The Court finds
these costs reasonable and necessary to administer the settlement and APPROVES
payment of settlement administration costs from the common fund.

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Named Plaintiffs are entitled to a service award.

\\.

Finally, Named Plaintiffs requests that the Court approve a $15,000 service award

to the three Named Plaintiffs. “Courts typically authorize contribution (or ‘incentive’
awards) to class representatives for their often extensive involvement with a lawsuit.”
Rikos, 2018 WL 2009681, at *10. “Such compensation to named plaintiffs is typically
justified where the named plaintiffs expend time and effort beyond that of the other class
members in assisting class counsel with the litigation, such as by actively reviewing the
case and advising counsel in the prosecution of the case.” Id.
Here, Named Plaintiffs stayed informed throughout the litigation. (Doc. 41-2;
Doc. 41-3; Doc. 41-4; Doc. 41-5). Moreover, no class member objected to the potential
for a $15,000 service award for each Named Plaintiff. Accordingly, the Court GRANTS
Named Plaintiffs’ request for a service award of $15,000 each.
III.

CONCLUSION

Based upon the foregoing, Plaintiffs’ unopposed motion for final approval of Rule
23 class action settlement, for payment of attorneys’ fees, costs, and expenses, and for
entry of judgment (Doc. 47) is GRANTED. Accordingly:
1.

Pursuant to Fed. R. Civ. P. 23(a) and (b)(3), for settlement purposes, the

Court certifies the following Settlement Classes:
The Rule 23 Ohio Class
All current and former Servers of Defendant DJGN LLC at its
Cincinnati, Ohio restaurant who worked as a Server at any time
from March 30, 2019 through July 1, 2022.

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The Rule 23 Kentucky Class
All current and former Servers of Defendant DJGN Lexington,
LLC at its Lexington, Kentucky restaurant who worked as a
Server at any time from March 3, 2017 to July 1, 2022.
The Rule 23 Indiana Class
All current and former Servers of Defendant DJGN Indy, LLC
at its Indianapolis, Indiana restaurant who worked as a Server
at any time from April 4, 2020 to July 1, 2022.
2.

Pursuant to Fed. R. Civ. P. 23(c)(3), all such persons who satisfy the

Settlement Classes definitions above are members of the Settlement Class. Because no
member of the Settlement Classes opted out of the Settlement, all Settlement Class
Members are bound by this Final Approval Order.
3.

The Court grants final approval to its appointment of the Estate of

Benjamin Gareth as Class Representative for the Rule 23 Ohio Class; Christopher
Sullivan as Class Representative for the Rule 23 Kentucky Class; and Austin Brady as
Class Representative for the Rule 23 Indiana Class. The Court finds that each Class
Representative is similarly situated to absent Class Members, is typical of the Class, and
is an adequate Class Representative, and that Class Counsel and the Class Representative
have fairly and adequately represented the Class.
4.

The Court grants final approval to its appointment of Class Counsel,

appointing David W. Garrison and Joshua A. Frank of Barrett Johnston Martin &
Garrison, PLLC. Class Counsel have extensive experience handling class action cases
and have thoroughly represented the Class Members’ interests in this case.
5.

The Court’s Preliminary Approval Order approved the notice procedures to

the Rule 23 Classes and found the distribution and publishing of the various notices as
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proposed met the requirements of Fed. R. Civ. P. 23 and due process, and was the best
notice practicable under the circumstances, constituting due and sufficient notice to all
persons entitled to notice. The Court finds that the distribution of the Notices has been
achieved pursuant to the Preliminary Approval Order and the Settlement Agreement, and
that the Notice to Class Members complied with Fed. R. Civ. P. 23, due process, and any
other applicable law.
6.

Pursuant to Fed. R. Civ. P. 23(e)(2), the Court finds that the Settlement

Agreement (Doc. 40-1) is fair, reasonable, and adequate, as expressed further herein. The
Court also finds the Settlement Agreement was entered into in good faith, at arm’s length,
and without collusion.
7.

The Court APPROVES the distribution and allocation of the settlement

fund pursuant to the Settlement Agreement.
8.

The Court AWARDS Class Counsel $500,000 in attorneys’ fees, which is

1/3 of the $1,500,000 settlement fund, and reimbursement of expenses of $25,142.42 to
be paid according to the terms of the Settlement Agreement. These amounts of fees and
expenses are fair and reasonable.
9.

The Court AWARDS the Class Representatives, the Estate of Gareth

Benjamin, Christopher Sullivan, and Austin Brady, $15,000 each to be paid according to
the terms of the Settlement Agreement. The award is justified based on their service to
the Classes.
10.

Nothing in the Settlement Agreement, the Final Approval Order, Judgment,

or the fact of the settlement constitutes any admission by any of the parties of any
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liability, wrongdoing, or violation of law, damages or lack thereof, or of the validity or
invalidity of any claim or defense asserted in the action.
11.

The Court DISMISSES WITH PREJUDICE all claims of the Rule 23

Settlement Class Members against Defendants in this action, without costs and fees
except as explicitly provided for in the Settlement Agreement. Specifically, the Rule 23
Class Members’ state law claims against Defendants pertaining to Defendants’ alleged tip
sharing violations are DISMISSED with prejudice. Additionally, any FLSA claims
arising from the same alleged conduct of Class Members who submitted a Claim Form
(i.e., opted into the settlement) are DISSMISSED with prejudice.
12.

Without affecting the finality of the Judgment, the Court reserves

jurisdiction over the implementation, administration, and enforcement of the Judgment
and the Settlement Agreement, and all matters ancillary thereto.
13.

The Clerk shall enter judgment accordingly, whereupon this case is

TERMINATED on the docket of this Court.
IT IS SO ORDERED.
Date: 11/13/2023

s/Timothy S. Black
Timothy S. Black
United States District Judge

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