Clark v. Pizza Baker, Inc. et al

Filing 181

ORDER GRANTING 176 Unopposed Motion for Settlement Approval between Plaintiff and Defendants Lisa Burkett and Precision Pizza, LLC. The case is DISMISSED WITH PREJUDICE. Within thirty (30) days of Defendants making the first round of payments to the class, the parties will submit a stipulation dismissing, with prejudice, the Precision Defendants from the lawsuit. This Court will retain jurisdiction over the settlement agreement. Signed by Chief Judge Algenon L. Marbley on 10/31/202 (cw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RONALD CLARK, on behalf of
himself and those similarly situated,
Plaintiffs,
v.
PIZZA BAKER, INC., et al.,
Defendants.

:
:
: Case No. 2:18-cv-157
:
: CHIEF JUDGE ALGENON L. MARBLEY
:
: MAGISTRATE JUDGE DEAVERS
:
:
:

FINAL SETTLEMENT APPROVAL ORDER
This matter comes before this Court on Plaintiff’s Unopposed Motion for Settlement
Approval between Plaintiff and Defendants Lisa Burkett and Precision Pizza, LLC (the
“Precision Defendants”). (ECF No. 176). For the following reasons, this Court GRANTS the
Motion for Settlement Approval, and the case is DISMISSED WITH PREJUDICE. As
outlined in the settlement agreement, within thirty (30) days of Defendants making the first
round of payments to the class, the parties will submit a stipulation dismissing, with prejudice,
the Precision Defendants from the lawsuit. (ECF No. 176-1 at 8). This Court will retain
jurisdiction over the settlement agreement.
I. BACKGROUND
Plaintiff Ronald Clark, on behalf of himself and all other persons similarly situated,
initiated this lawsuit in February 2018 by filing a Class and Collective Action Complaint with
this Court against three groups of Defendants: (1) Domino’s Pizza, Inc., Domino’s Pizza, LLC,
and Domino’s Pizza Franchising, LLC (the “Domino’s Defendants”); (2) the Precision
Defendants; and (3) the Christopher Baker and Pizza Baker, LLC (the “Baker Defendants”).
(ECF No. 1). Clark, a pizza delivery driver for Defendants, alleged that they violated the Fair
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Labor Standards Act (“FLSA”), the Ohio Constitution, Article II, Section 34a (“Section 34a”),
O.R.C. § 4113.15 (Ohio’s “Prompt Pay Act”), and O.R.C. § 2307.60. (ECF No. 1).
As a delivery driver, Plaintiff delivered pizza and other items to customers. (ECF No. 158
at ¶¶ 85-86). When not completing deliveries, delivery drivers performed other tasks, including
constructing boxes, cleaning, food preparation, and other duties as necessary. (Id. at ¶ 89).
Delivery drivers were paid at or close to minimum wage, or minimum wage minus a tip credit.
(Id. at ¶ 90). The Defendants required their delivery drivers to maintain and pay for their own
operable, safe, and legally compliant automobiles to make deliveries. (Id. at ¶ 92). Delivery
drivers were responsible for job-related expenses, including automobile costs and depreciations,
gas, automobile maintenance and parts, insurance coverage, financing costs, cell phone costs,
and any other necessary equipment, for which they were not wholly reimbursed. (Id. at ¶¶ 9394). Plaintiff alleges that the Precision Defendants reimbursed drivers a flat per-delivery
payment amount. (Id. at ¶¶ 98-99). The Defendants did not reimburse their drivers at the IRS
standard mileage rate for the delivery miles driven, which they were required to do because they
did not keep records of Plaintiff’s actual expenses. (Id. ¶¶ 120, 148, 153). Due to these expenses,
Plaintiff alleges that he and similarly situated delivery drivers were deprived of minimum and
overtime wages guaranteed to them under the FLSA and Ohio law. (Id. ¶¶ 144–47, 163– 64).
A. Procedural History
Plaintiff brought this action on behalf of himself and similarly situated current and former
delivery drivers who elected to opt in, pursuant to Section 216(b) of the FLSA, and who did not
opt out as a class action under Fed. R. Civ. P. Rule 23. (ECF No. 3 at 45-46). Plaintiff filed the
First Amended Complaint on February 27, 2018. (ECF No. 3). The Defendants sought to dismiss
the action to the extent it sought declaratory relief in April 2018, and this Court granted the

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motion. (ECF Nos. 23, 24, 44, 99). Plaintiff then filed a Motion to Certify the Class and send
notice to similarly situated employees in October 2019. (ECF No. 106). Discovery in the case
and the briefing on the Motion for Conditional Certification were then stayed while the parties
completed all discovery related to the issue of joint employment. (ECF Nos. 122, 128).
Plaintiff filed his Second Amended Complaint against the Defendants in April 2020,
adding a claim for unjust enrichment, and the stay on discovery was lifted that same month.
(ECF Nos. 137, 139). The Defendants filed a new Motion to Dismiss in May 2020, which this
Court denied. (ECF Nos. 140, 141, 142, 144, 151). Plaintiff then filed the Third Amended
Complaint in October 2020, seeking to: (1) dismiss without prejudice the claims asserted against
the Domino’s Defendants; and (2) limit the scope of the proposed FLSA collective/Rule 23 class
to pizza delivery drivers who worked for the Domino’s Pizza franchise locations owned and
operated by the Precision and Baker Defendants during the relevant period. (ECF No. 158 at 3).
He then filed a revised Motion to Certify the Class and send notice to similarly situated
employees, which was held in abeyance pending mediation. (ECF No. 163, 165).
B. Settlement Agreements
Plaintiff and the Precision Defendants reached settlement following a second mediation
session held in January 2021. (ECF Nos. 168, 169, 170). Plaintiff filed an unopposed Motion for
Preliminary Settlement Approval with the Precision Defendants, which this Court granted in part
and denied in part. (ECF Nos. 169, 171). This Court ordered Plaintiff to file an amended notice
properly informing the proposed FLSA putative collective action members how to opt-in to the
settlement, while allowing the Rule 23 class action members to opt out of the settlement. (ECF
No. 171 at 3). Following review of the Amended Notice filed by Plaintiff on May 9, 2022, this
Court issued an order stating the notification deficiencies were satisfied and ordering the Notice

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Period to commence. (ECF No. 174). On September 21, 2022, Plaintiff filed an unopposed
Motion for Final Settlement Approval with the Precision Defendants. (ECF No. 176).
The Precision Defendants agreed to pay $300,000 to resolve all of the claims raised in the
lawsuit, and all claims against the Precision Defendants will be released and they will be
dismissed from the suit. (ECF Nos. 176 at 4, 176-1 at 2). Counsel also requests $100,000.00 in
attorney’s fees, $8,993.29 as reimbursement for the Claim Administrator’s fees, and $835.32 for
expenses related to filing fees, service of process, TransUnion research, and Plaintiff’s portion of
the mediator fee. (ECF No. 176 at 10, 15-16). Additionally, Plaintiff requests $5,000 as a service
award. (Id. at 16). These expenses will be deducted from the total award prior to calculation of
the Class Members’ payments, leaving $185,171.39 from which the class payments will be
calculated. (ECF No. 176-1 at 3).
Under the terms of the Settlement Agreement, the Administrator will calculate each Class
Member’s under-reimbursed expenses at $0.55 per mile driven during the Settlement Period less
any actual reimbursement received. (ECF No. 176-1 at 3). This amount will be multiplied by one
to account for other potential damages under Ohio and federal law. (Id.). These amounts will be
added together to determine each Class Member’s maximum possible award. (Id.). If Class
Members’ maximum possible awards collectively exceed the remaining Settlement Fund, Class
Members’ award amounts will be reduced on a pro-rata basis. (Id.). Due to the Precision
Defendants’ financial inability to withstand a greater settlement, the Precision Defendants will
make three payments to Class Members and Class Counsel over a year. (ECF No. 176 at 4-5).
The Court will retain continuing jurisdiction over the Settlement. (ECF No. 176-1 at 5).
C. Claims Process and Final Fairness Hearing
The Class Members for purposes of the proposed Final Settlement Agreement with the

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Precision Defendants is defined as:
“All non-exempt hourly employees of Precision Pizza LLC and/or Lisa Burkett
who received mileage reimbursement related to the delivery of Domino’s Pizza.
The ‘Class Period’ is from February 23, 2015 to January 26, 2021.” (ECF No.
176-1 at 1-2).
Consistent with this Court’s Preliminary Approval Order (ECF No. 171), the Claims
Administrator for the Settlement with the Precision Defendants mailed and emailed notice to 270
workers. (ECF No. 176 at 9). Of those mailings, 9 were returned undeliverable, even after the
Claims Administrator corrected 37 addresses through a TransUnion search. (Id.). No class
members objected to the settlement nor opted out. (Id.). As such, 100% of the class will receive a
check for their portion of the settlement without taking any additional action. (Id.).
This Court has reviewed Plaintiff’s unopposed Motion for Settlement Agreement, heard
arguments from the parties at a Final Fairness Hearing on October 12, 2022, and approves the
proposed settlement for the following reasons.
II. LAW & ANALYSIS
A. Final Certification and Approval
This Court has already certified the Rule 23 Settlement Class and FLSA Collective (ECF
No. 171) and finds nothing has changed regarding the appropriateness of certification.
B. Sufficiency of Notice
In class actions certified under Rule 23(b)(3) (see ECF No. 171 at 1), notice of settlement
must meet the requirements of both Federal Rules of Civil Procedure 23(c)(2)(B) and 23(e).
First, no class action may be settled, dismissed, or compromised without court approval,
preceded by notice to class members. Fed R. Civ. P. 23(e). Rule 23(c)(2)(B) requires that notice
to the class be “the best notice that is practicable under the circumstances, including individual
notice to all members who can be identified through reasonable effort.” The notice must be
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“reasonably calculated, under all circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objection.” Int’l Union, United Auto.,
Aerospace, and Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F. 3d 615, 629-30
(6th Cir. 2007) (hereinafter UAW) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950).
Here, the Settlement Notice for the agreements with the Precision Defendants “‘fairly
apprised[d] the prospective members of the class of the terms of the proposed settlement’ so that
class members [could] come to their own conclusions about whether the settlement serves their
interest.” Id. at 630 (quoting Grunin v. Int’l House of Pancakes, 513 F. 2d 114, 122 (8th Cir.
1975)). The Notice “explained its purpose, discussed the nature of the pending suit and proposed
class and accurately summarized the [] settlement agreement.” Id.
C. Whether Fair, Adequate, and Reasonable
Before approving a settlement agreement, this Court, must determine if the settlement is
“fair, adequate, and reasonable, as well as consistent with the public interest.” Bailey v. Great
Lakes Canning, Inc., 908 F. 2d 38, 42 (6th Cir. 1990) (citing U.S. v. Jones & Laughlin Steel
Corp., 804 F.2d 348, 351 (6th Cir. 1986)). To do so, the Court balances several factors: (1) the
risk of fraud or collusion; (2) the complexity, expense and likely duration of the litigation; (3) the
amount of discovery completed; (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 in the settlement.” Vigna v. Emery Fed. Credit Union, No. 1:15-CV-51, 2016 WL
7034237, at *3 (S.D. Ohio Dec. 2, 2016). In reviewing a proposed class and collective action
settlement, the district court has “‘wide discretion in assessing the weight and applicability’ of
the relevant factors.” Vassalle v. Midland Funding LLC, 708 F.3d 747, 754 (6th Cir. 2013)

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(quoting Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205–06 (6th Cir. 1992)). Here, this
Court finds that the Settlement Agreement with the Precision Defendants is fair, adequate, and
reasonable, because all seven factors weigh in favor of approval.
1. Risk of Fraud or Collusion
The first factor, risk of fraud or collusion, is negligible, which favors settlement approval.
In the order preliminarily approving the settlement agreement for the Defendants, this Court
noted that the settlement was the result of “arms-length negotiations conducted after Class
Counsel [had] adequately investigated the claims and became familiar with the strengths and
weakness of those claims.” (ECF No. 171 at ¶ 7). The Defendants filed multiple Motions to
Dismiss, the parties argued over the scope of discovery, and the Plaintiff briefed a Motion for
Conditional Certification. (ECF Nos. 32, 99, 122, 151). The parties also engaged in two
mediation sessions in March 2020 and January 2021, before which Defendants provided Plaintiff
financial disclosure statements regarding their ability to pay a settlement or judgment. (ECF No.
176 at 4). “The participation of an independent mediator in settlement negotiations virtually
[e]nsures that the negotiations were conducted at arm’s length and without collusion between the
parties.” Bert v. AK Steel Corp., No. 1:02-cv-467, 2008 WL 4693747, at *2 (S.D. Ohio Oct. 23,
2008). Following the second mediation, the parties reached settlement. (Id.). In this context and
upon the representation of Plaintiff’s Counsel, there is no reason to believed that the settlement
involved fraud or collusion, and this Court finds negotiations were conducted at arm’s-length.
2. Complexity, Expense, and Likely Duration of Litigation
This Court notes that wage and hour class/collective actions are “inherently complex, and
settlement avoids the costs, delays, and multitude of other problems associated with them.” Carr
v. Guardian Healthcare Holdings, Inc., No. 2:20-cv-6292, 2022 WL 501206, at *5 (S.D. Ohio

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Jan. 19, 2022); see also Brandenburg v. Cousin Vinny’s Pizza, LLC, No. 3:16-CV-516, 2019 WL
6310376, at *3 (S.D. Ohio Nov. 25, 2019); In re Teletronics Pacing Sys., Inc., 137 F. Supp. 2d
985, 1013 (S.D. Ohio 2001). Plaintiff also contends that pizza delivery driver cases are especially
complex and time consuming because the appropriate legal standard for delivery driver
reimbursement remains disputed. (ECF No. 176 at 7). As a result, these cases hinge on
regulations, issues of Auer deference, conflicting guidance from the Department of Labor, and
the need for expert testimony. (Id.) This Court also appreciates that providing relief to class
members now will eliminate any uncertainty or delay. Given the important, disputed legal issues
that remain unresolved at this juncture, the complexity, expense, and duration of continued
litigation weighs in favor of settlement.
3. Amount of Discovery Completed
To ensure the “Plaintiff has ‘had access to sufficient information to evaluate [his] case
and to assess the adequacy of the proposed Settlement[],’ the Court must consider the amount of
discovery engaged in by the parties.” Carr, 2022 WL 501206, at *5 (quoting In re Broadwing,
Inc. ERISA Litig., 252 F.R.D. 369, 374 (S.D. Ohio 2005)). This case was originally filed in
February 2018. (ECF No. 1). The Plaintiff has overcome two Motions to Dismiss by both the
Defendants in this case. (ECF No. 176 at 7). The parties are in the midst of discovery, and
Plaintiff alleges that there were several discovery disputes nearly ripe for submission to this
Court prior to mediation. (Id. at 4). The Precision Defendants also provided Plaintiff: (1)
financial disclosures about their ability to pay a settlement or judgment; and (2) adequate
information about the Precision Defendants’ reimbursement rates, total potential damages, and
the type of reimbursement at issue (per mile, per delivery, percent-of-order) from the
Defendants’ records. (ECF No. 169 at 7–8). Plaintiff’s Counsel has litigated a number of cases

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involving pizza delivery drivers, allowing them to effectively evaluate the remaining
complexities of the case and the appropriateness of a settlement. (Id. at 8). This Court finds that
Plaintiff’s Counsel’s experience in this type of litigation and the exchange of information ahead
of mediation was sufficient to inform fully the settlement negotiations. Wright v. Premier
Courier, Inc., No. 2:17-cv-654, 2018 WL 3966253, at *4 (S.D. Ohio Aug. 17, 2018).
4. Likelihood of Success on the Merits
A plaintiff’s probability of success on the merits is the “most important factor” for a court
to consider in approving a wage and hour class/collective action settlement. See Kritzer v.
Safelite Solutions, LLC, No. 2:10-cv-0729, 2012 WL 1945144, at *6 (S.D. Ohio May 30, 2012).
If the Plaintiff’s likelihood of success on the merits is low, “the more desirable a favorable
settlement appears.” Id. While Plaintiff contends that the underlying facts of the case are not
disputed, the appropriate legal standard for reimbursing delivery drivers remains disputed and is
set for Sixth Circuit briefing. (ECF No. 176 at 5). Under Plaintiff’s theory of the case, if Plaintiff
prevailed, the under-reimbursement amount would be $619,988.36, with the possibility of
substantial, additional compensatory and punitive damages under FLSA’s liquidated damages
provision and Ohio law. (Id. at 6). Plaintiff notes, however, that the Defendants “would have a
limited ability to pay them,” especially after expending financial resources for a trial and appeal.
(Id.). If the Defendants prevailed, the parties would litigate whether the Defendants “reasonably
approximated” the drivers’ expenses, necessitating expert testimony. (Id.). Either Plaintiff’s
claims would be eliminated if this Court found that Defendants reasonably approximated drivers’
expenses, or damages would be reduced to a minimal sum if this Court concluded that Plaintiff
was only under-reimbursed by a few cents. (Id.).

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A settlement of $300,000.00 to pay Plaintiff and similarly situated drivers for underreimbursement, as well as awards and fees, is a substantial sum, especially given the Defendants’
financial limitations. (Id. at 6). The amount of recovery, in combination with the uncertainty of
any recovery for Plaintiff and the proposed class if litigation proceeded, demonstrate the value of
the proposed settlement outweighs the likelihood of success on the merits.
5. Judgment of Experienced Counsel
Plaintiff’s Counsel, who regularly litigates FLSA and state wage and hour claims on
behalf of pizza delivery drivers, submits that the proposed final settlement is fair, reasonable, and
adequate. (Id. at 5). The Court gives great weight to the beliefs of experienced counsel. See
Williams v. Vukovich, 720 F.2d 909, 922–23 (6th Cir. 1983) (“The court should defer to the
judgment of experienced counsel who has competently evaluated the strength of his proofs.”).
Accordingly, this factor weighs in favor of approval.
6. Reaction of Absent Class Members
The reaction of potential class members also supports approval. No class or collective
action members objected to settlement nor opted out. (ECF No. 176 at 9).
7. Public Interest
As the district court noted in Kritzer, there is a “public interest favoring settlement . . . as
the proposed settlement ends potentially long and protracted litigation.” 2012 WL 1945144, at *6
(citing In re Broadwing, 252 F.R.D. at 369). The public interest is served where a settlement
“provides relief to the class members, avoids further litigation, and frees the Court’s judicial
resources.” Mullins v. S. Ohio Pizza, Inc., No. 1:17-cv-426, 2019 WL 275711, at *3 (S.D. Ohio
Jan. 18, 2019). Plaintiff also submits that there is a public interest in ensuring that minimum

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wage workers receive a just and speedy resolution to claims for unpaid wages. (ECF No. 176 at
9). This factor also weighs in favor of settlement approval.
D. Attorneys’ Fees
An award of attorneys’ fees must be reasonable, meaning it must be “one that is adequate
to attract competent counsel, but . . . [does] not produce windfalls to attorneys.” Reed v. Rhodes,
179 F.3d 453, 471 (6th Cir. 1999). There are two methods for determining whether a fee is
reasonable: the percentage-of-the-fund method and the lodestar method. Van Horn v. Nationwide
Prop. & Cas. Ins. Co., 436 F. App’x 496, 498 (6th Cir. 2011). The Sixth Circuit has approved
both methods. Rawlings v. Prudential-Bache Prop., Inc., 9 F.3d 513, 515–16 (6th Cir. 1993).
When using the percentage-of-the-fund method, courts in this Circuit generally approve of
awards that are one-third of the total settlement. See, e.g., Rotuna v. W. Customer Mgmt. Grp.,
LLC, 4:09-cv-1608, 2010 WL 2490989, at *8 (N.D. Ohio Jun. 15, 2010) (approving attorneys’
fees in the amount of one-third of the settlement fund). The lodestar figure represents the number
of hours spent multiplied by reasonable rates. Reed, 179 F.3d at 471. Although not mandatory,
courts frequently cross-check counsel’s request for percentage-of-the-fund awards against the
lodestar. Van Horn, 436 F. App’x at 501. A district court has discretion to select which method is
appropriate in light of the “unique characteristics of class actions in general, and of the unique
circumstances of the actual cases before them.” Id.
A district court also analyzes the following factors in determining whether the fee is
reasonable: (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

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standing of counsel involved on both sides. Castillo v. Morales, No. 2:12-cv-650, 2015 WL
13021899, at *6 (S.D. Ohio Dec. 22, 2015) (citing Ramey v. Cincinnati Enquirer, Inc., 508 F.2d
1188, 1196 (6th Cir. 1974)).
1. Value of Benefit to Plaintiff Class
Here, the parties propose a percentage-of-the-fund method. (ECF No. 176 at 10).
Plaintiff’s Counsel would receive attorneys’ fees of $100,000, amounting to one-third of the total
settlement proposed. (ECF No. 176 at 10). Plaintiff alleges that if his legal theory and calculation
of damages prevailed, Precision Defendants would be liable for $619,988.36, which would result
in higher proposed attorneys’ fees under the percentage-of-the-fund method. (ECF No. 176 at
11). Under the proposed approach, after subtracting other fees and costs requested, class
members under the Precision Defendant agreement will receive about 29.9% of their alleged
unpaid wages. (Id.). This is in line with other decisions in the Sixth Circuit and would benefit the
members of the class. See Dillworth v. Case Farms Processing, Inc., No. 5:08-cv-1694, 2010
WL 776933, at *8 (N.D. Ohio Mar. 8, 2010) (explaining that the average recovery in class
actions is 7-11% of claimed damages).
2. Value of Service
Currently, Plaintiff’s Counsel’s lodestar for the Precision Defendants and Baker
Defendants together is $450,142 for a total of 814.1 hours of work as of August 26, 2022. (ECF
Nos. 175 at 12, 176 at 12). Given that the claims against the defendants were the same, nearly all
of Plaintiff’s Counsel’s work in this case was related to both sets of defendants, making it
difficult to distinguish the number of hours dedicated individually to each group of Defendants.
Plaintiff’s Counsel suggested prorating the lodestar between the two settlements based on the
value of the settlements. (Id. at 13). Therefore, roughly 37% of the lodestar, or $166,553, would

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be attributable to the proposed settlement with the Precision Defendants, and roughly 63% of the
lodestar, or $283,589, would be attributable to the Baker Defendants. (Id.).
While this Court accepts Plaintiff’s Counsel’s prorated approach to disaggregating the
lodestar between the two cases in this matter, Plaintiff’s Counsel did not disaggregate the hours
worked between the two cases, such that this Court could crosscheck the percentage-of-the-fund
attorneys’ fees proposal against a lodestar representative of the actual amount of time worked on
addressing the Precision Defendants’ claims. This Court acknowledges, however, that these
cases are unique. Because of the extreme similarities across defendant groups, it is difficult for
Plaintiff’s Counsel to disaggregate the hours worked on each case. Plaintiffs should be advised,
however, that this Court prefers counsel provide a disaggregation of hours worked on multi-party
case when calculating the lodestar and are encouraged to provide such disaggregation in the
future.
Plaintiff’s Counsel requests a total of $180,142, across both settlements, less than their
lodestar, which strongly weighs in favor of granting attorneys’ fees. See Myers v. Memorial
Health System Marietta Memorial Hospital, No. 15-cv-2956, 2022 WL 4079559, at *6 (S.D.
Ohio Sep. 6, 2022) (concluding that an attorneys’ fee that was $1,033,933 less than their lodestar
weighed heavily in favor of approving the fee request); Kritzer, 2012 WL 19545122, at *10
(finding a proposed attorneys’ fee of less than the lodestar calculation reasonable). In fact,
awards of common-fund attorney fees in amounts two or three-times greater than the lodestar
have been found reasonable. See Johnson v. Midwest Logistics Systems, Ltd., 2:11-cv-1061, 2013
WL 2295880, at *6 (S.D. Ohio May 24, 2013) (concluding a lodestar multiplier of 2.25 was
reasonable); Lowther v. AK Steel Corp., 2012 WL 6676131, at *5 (S.D. Ohio Dec. 21, 2012)
(approving a multiplier of 3.06 in an Employee Retirement Income Security Act case).

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Finally, Plaintiff’s Counsel alleges that their hourly rates have been approved in other
cases by this Court, with the sole exception of Mr. Kimble who recently raised his hourly rate
from $550 to $600 to reflect his experience in pizza delivery driver cases. See Waters v. Pizza to
You, LLC, No. 3:19-cv-372, 2022 WL 3048376, at *5 (S.D. Ohio Aug. 2, 2022); Estate of
McConnell v. EUBA Corp., No. 3:18-cv-00355, 2021 WL 1966062, at *6 (S.D. Ohio May 17,
2021); Arp v. Hohla & Wyss Enterprises, LLC, No. 3:18-cv-119, 2020 WL 6498956, at *7 (S.D.
Ohio, Nov. 5, 2020). Despite the increase in Mr. Kimble’s hourly rate, this new amount reflects
the increase in value Mr. Kimble brings to the litigation from his years of experience on pizza
delivery driver cases and weighs in favor of approval of the requested fees.
3. Whether Services Undertaken on Contingency Fee Basis
Third, Plaintiff’s Counsel undertook representation on a one-third contingency fee
agreement and the notice sent to class/collective action members informed them of this
arrangement. (ECF No. 178-1 at 4). In doing so, Plaintiff’s Counsel “undertook the risk of not
being compensated” at all. O’Bryant v. Pillars Protection Servs., LLC, No. 2:19-cv-1354, 2020
WL 7486712, at *6 (S.D. Ohio Dec. 17, 2020) (quoting Kritzer, 2012 WL 1945144, at *9). As
Plaintiff’s Counsel has not been compensated since the beginning of this litigation, this factor
weighs in favor of this Court granting an award of attorneys’ fees. See Feiertag v. DDP, No. 14cv-2643, 2016, WL 4721208, at *7 (S.D. Ohio Sep. 9, 2016).
4. Society’s Stake in Attorneys’ Fees
Society benefits when attorneys take on class actions that ensure “claimants with small
claims may pool their claims and resources.” Waters, 2022 WL 3048376, at *5. This benefit is
“particularly acute in wage and hour cases brought on behalf of minimum wage workers.” Id.
(quoting Arp, 2020 WL 6498956, at *6). There exists a “public interest” in ensuring that

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attorneys who represent clients in class actions are adequately compensated, so that attorneys
will continue to take on such cases in the future. Connectivity Sys. Inc. v. Nat’l City Bank, No.
2:08-cv-1119, 2011 WL 292008, at *14 (S.D. Ohio Jan. 25, 2011). Like Waters, this class and
collective action allows low-wage workers to recover unpaid wages, many of whom would likely
not have been willing or able to pursue their claims individually. See Mullins, 2019 WL 275711,
at *5. Accordingly, this factor also weighs in favor of awarding counsel their proposed
percentage-of-the-fund amount.
5. Complexity of Litigation
As previously discussed, this case was a complex wage and hour class and collective
action with unresolved legal questions and substantial factual investigation, to which Plaintiff’s
Counsel brought unique expertise. This factor also weighs in favor of awarding Plaintiff’s
Counsel the percentage-of-the-fund amount.
6. Professional Skill of Counsel
The attorneys in this matter were highly skilled. Plaintiff’s Counsel has prosecuted many
wage-and-hour claims and had a “heightened difficulty of navigating a lawsuit that contained
elements of a FLSA collective action and a Rule 23 class action.” Graham v. Chumleys of
Columbus, LLC, No. 2:15-cv-136, 2016 WL 11787458, at *7 (S.D. Ohio Mar. 23, 2016) (quoting
Dillworth, 2010 WL 776933 at *8).
E. Expenses and Administration Fee
Plaintiff’s Counsel seeks a reimbursement award of $8,993.29 for the Claim
Administrator’s fees and $835.32 for expenses. (ECF No. 176 at 16). Plaintiff’s Counsel alleges
these fees cover settlement notices, setting up Qualified Settlement Funds (QSFs), distributing
checks, filing fees, service of process, and Plaintiff’s portion of the mediator fee. (ECF No. 176

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at 15). Under the common fund doctrine, Plaintiff’s Counsel will be entitled to reimbursement
expenses that were reasonable and necessary in resolving a case. Mullins, 2019 WL 275711, at
*5 (approving request for $6,310.55 in expenses resulting from filing fees, mediation costs, and
class notice costs). These expenses are reasonable as they are in line with expenses and
administration fees incurred in similar litigation. See e.g., Brandenburg, 2019 WL 6310376, at
*7 (holding that $15,266.88 in litigation expenses were reasonable and necessary in litigating
and resolving a wage and hour pizza delivery driver case).
F. Class Representative Service Award
Finally, the Court approves a $5,000 service award for Plaintiff (ECF No. 176 at 16).
Neither class members nor Defendants object to the requested award. Courts recognize and grant
“incentive awards [as] efficacious ways of encouraging member[s] of a class to become class
representatives and rewarding individual efforts taken on behalf of the class.” Hogan v.
Cleveland Ave Rests. Inc., No. 2:15-CV-2883, 2019 WL 6715976, at *6 (S.D. Ohio Dec. 10,
2019) (quoting Hadix v. Johnson, 322 F. 3d 895, 897 (6th Cir. 2003)). Plaintiff argues that this
award is warranted because the Plaintiff assumed substantial risk in advocating for the Class and
Collective. (ECF No. 176 at 16). Plaintiff will also receive a service award of $5,000 in the
Baker Defendants settlement, which together brings Plaintiff in line with what is typically
awarded in these cases. (Id.); see also Chrismon v. Meadow Greens Pizza, No. 5:19-cv-155BO,
2020 WL 3790866, at *6 (listing pizza delivery driver cases granting a $10,000 service award for
the named plaintiff). Comprising about 1.2% of the global settlement funds, the two service
awards do not significantly reduce the award to other class members, so there is no concern that
such an award would be to the detriment of the class and collective members.

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III. CONCLUSION
For the foregoing reasons, this Court GRANTS the Motion for Final Settlement
Approval with the Precision Defendants for a total settlement amount of $300,000, including
the request for attorneys’ fees amounting to $100,000, Claim Administrator fee reimbursement
of $8,993.29, expenses of $835.32, and a class representative award of $5,000, and orders that
this case be DISMISSED WITH PREJUDICE. The difference between the total settlement
amount ($300,000) and the total fees awarded ($114,828.61)—$185,171.39—will be dispersed
to the Class Members as outlined in the settlement agreement. (ECF No. 176-1)
As outlined in the settlement agreement, within thirty (30) days of Defendants making
the first round of payments to the class, the parties will submit a stipulation dismissing, with
prejudice, the Precision Defendants from the lawsuit. (ECF No. 176-1 at 8). This Court will
retain jurisdiction over this action. The parties shall abide by all terms of the Settlement
Agreement, which are incorporated herein, and this Order.
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE

DATED: October 31, 2022

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