Beissel et al v. Western Flyer Express, LLC

Filing 83

ORDER granting 81 Motion for Preliminary Approval of Class and Collective Action Settlement. Final Approval and Fairness hearing set for Thursday, July 6th, 2023 at 10:00 a.m. See Order for all details and deadlines set. Signed by Judge David L. Russell on 01/18/2023. (km)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
ANDREW BEISSEL, an individual, J&B
ENTERPRISES, INC., a Colorado
Corporation, individually and on behalf of all
others similarly situated,

Case No. CIV-21-903-R

Plaintiffs,
v.
WESTERN FLYER EXPRESS, LLC,
Defendant.
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL
OF CLASS AND COLLECTIVE ACTION SETTLEMENT (ECF NO. 81)
The Court, having received and carefully considered the Motion for Preliminary
Approval of Class and Collective Action Settlement (the “Motion”) filed by Plaintiffs
Andrew Beissel and J&B Enterprises, Inc. (collectively, “Plaintiffs”) at ECF No. 81, and
Defendant Western Flyer Express, LLC (“Defendant” or “WFX”) having not opposed the
Motion, hereby GRANTS the Motion.
In the operative Second Amended Complaint (ECF No. 79) of the instant lawsuit,
Andrew Beissel, et al. v. Western Flyer Express, LLC, Case No. CIV-21-903-R (the
“Action”), Plaintiffs allege that Defendant violated federal and Oklahoma law with respect
to all current and former individuals who provide(d) transportation services for WFX
within the United States, who entered into an Independent Contractor Agreement, or a
similarly styled agreement, with WFX from December 7, 2017 to July 19, 2022.
Throughout the relevant time period, Plaintiffs allege that Defendant committed violations

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as to Plaintiffs, Oklahoma Class Members, and FLSA Collective Members by inducing
them to join a lease operator program which failed to provide all advertised benefits and/or
improperly paid them. On this basis, Plaintiffs assert claims including, without limitation,
deceptive and unfair trade practices under the Oklahoma Consumer Protection Act (15
Okla. Stat. §§ 751, et seq.); unlawful sale of business opportunities under the Oklahoma
Business Opportunity Sales Act (71 Okla. Stat. §§ 801, et seq.); fraud and
misrepresentation; negligence; failure to pay wages under the Fair Labor Standards Act (29
U.S.C. §§ 201, et seq.); and violation of federal forced labor statutes (18 U.S.C. §§ 1581,
et seq.).
After discovery and investigation by Plaintiffs’ counsel, the Parties entered into
private mediation with respected neutral mediator Michael Russell in an attempt to resolve
the claims alleged by Plaintiffs. As a result of the mediation session on July 19, 2022, the
Parties reached a Settlement that fully resolves the Action. The Parties then executed a
Joint Stipulation of Settlement and Release of Class and Collective Action (“Settlement”
or “Settlement Agreement”) on or about December 5, 2022.
The Court has reviewed, among other things, whether the proposed Settlement is
within the range of possible approval, if the Notice of Proposed Class and Collective Action
Settlement and Hearing Date for Court Approval (“Class Notice”) to Oklahoma Class
Members and FLSA Collective Members (collectively, “Class Members”) is appropriate,
and whether a Final Approval and Fairness Hearing should be scheduled.
Having reviewed the papers and documents presented, having considered the
matter, and good cause appearing, the Court hereby ORDERS as follows:
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1.

This Order incorporates by reference the definitions in the Settlement, and

all terms defined therein shall have the same meaning in this Order as set forth in the
Settlement.
2.

The Court hereby GRANTS preliminary approval of the terms and

conditions contained in the Settlement, filed at ECF No. 81-2, as to the Oklahoma Class.
The Court preliminarily finds that the terms of the Settlement appear to be within the range
of possible approval, pursuant to Federal Rule of Civil Procedure 23 and applicable law.
3.

The Court finds on a preliminary basis that: (1) the settlement amount is fair

and reasonable as to the Oklahoma Class Members when balanced against the probable
outcome of further litigation relating to class certification, liability and damages issues,
and potential appeals; (2) the significant discovery, investigation, research, and litigation
that have been conducted such that counsel for the Parties at this time are able to reasonably
evaluate their respective positions; (3) settlement at this time will avoid substantial costs,
delay, and risks that would be presented by the further prosecution of the Action; and (4)
the proposed Settlement was reached as the result of intensive, serious, and non-collusive
negotiations between the Parties. Accordingly, the Court preliminarily finds that the Parties
entered into the Settlement in good faith.
4.

The Court hereby GRANTS conditional certification of the provisional

Oklahoma Class, in accordance with the Settlement, for the purposes of this Settlement
only. The Oklahoma Class is defined as all current and former individuals who provide(d)
transportation services for WFX within the United States, who entered into an Independent

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Contractor Agreement, or a similarly styled agreement, with WFX from December 7, 2017
to July 19, 2022.
5.

The Court hereby GRANTS approval of the terms and conditions contained

in the Settlement as to the FLSA Collective. The Court finds that the terms of the
Settlement are within the range of possible approval, pursuant to the Fair Labor Standards
Act and applicable law.
6.

The Court finds that: (1) the settlement amount is fair and reasonable as to

the FLSA Collective Members when balanced against the probable outcome of further
litigation relating to collective certification, liability and damages issues, and potential
appeals; (2) the significant formal and informal discovery, investigation, research, and
litigation that have been conducted such that counsel for the Parties at this time are able to
reasonably evaluate their respective positions; (3) settlement at this time will avoid
substantial costs, delay, and risks that would be presented by the further prosecution of the
Action; and (4) the proposed Settlement was reached as the result of intensive, serious, and
non-collusive negotiations between the Parties. Accordingly, the Court finds that the
Parties entered into the Settlement in good faith.
7.

The Court hereby GRANTS conditional certification of the FLSA

Collective, in accordance with the Settlement, for the purposes of this Settlement only. The
FLSA Collective is defined as all current and former individuals who provided
transportation services for WFX within the United States, between December 7, 2017 and
July 19, 2022, who (1) entered into an Independent Contractor agreement with WFX (2)

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were classified as independent contractors, and (3) sign or cash the settlement check(s)
they receive as a result of this Settlement.
8.

The Court hereby authorizes the retention of CPT Group as Settlement

Administrator for the purpose of the Settlement, with reasonable administration costs
estimated not to exceed $21,500.
9.

The Court hereby conditionally appoints Schneider Wallace Cottrell

Konecky LLP and the Law Offices of Robert S. Boulter as Class Counsel for the Oklahoma
Class and the FLSA Collective. The Court also hereby conditionally appoints Plaintiff
Andrew Beissel as the Class Representative for the Oklahoma Class and the FLSA
Collective.
10.

The Court hereby APPROVES the Class Notice attached to the Settlement

as Exhibit 1. The Court finds that the Class Notice, along with the related notification
procedure contemplated by the Settlement, constitute the best notice practicable under the
circumstances and are in full compliance with the applicable laws and the requirements of
due process. The Court further finds that the Class Notice appears to fully and accurately
inform the Class Members of all material elements of the proposed Settlement, of their
right to be excluded from the Settlement, and of their right and opportunity to object to the
Settlement.
11.

The Court hereby authorizes dissemination of the Class Notice to Class

Members. Subject to the terms of the Settlement, the Class Notice shall be mailed via firstclass mail to the most recent known address of each Class Member within the timeframe
specified in the Settlement. The Parties are authorized to make non-substantive changes to
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the proposed Class Notice that are consistent with the terms of the Settlement and this
Order.
12.

The Court hereby APPROVES the proposed procedure for Class Members

to request exclusion from the Settlement, which is to submit a written statement requesting
exclusion to the Settlement Administrator no later than the time period permitted under the
Settlement. Any Class Member who duly submits a written Opt-Out Request shall not be
a Class Participant, shall be barred from participating in the Settlement, and shall receive
no benefit from the Settlement. All Class Members who do not opt out of the Action are
bound by the terms of the Settlement.
13.

The Court PRELIMINARILY APPROVES Plaintiffs’ counsel’s request

for attorneys’ fees of up to 33.33% of the Gross Settlement Amount, or $1,633,170, plus
their costs, not to exceed $100,000.
14.

The Court ORDERS that Plaintiffs’ counsel shall file a motion for final

approval of the Settlement, with the appropriate declarations and supporting evidence,
within 30 days after the expiration of the Opt-Out Deadline.
15.

The Court ORDERS that Plaintiffs’ counsel shall file a request for approval

of the fee and cost award and of the service award to the Class Representative, with the
appropriate declarations and supporting evidence, within 30 days after the expiration of the
Opt-Out Deadline, to be heard at the same time as the motion for final approval of the
Settlement. The request for approval of the fee and cost award and of the service award
may be brought as part of an overall final approval motion or via separate, standalone
motion.
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16.

The Court ORDERS that each Class Member shall be given a full

opportunity to object to the proposed Settlement and request for attorneys’ fees, and to
participate at the Final Approval and Fairness Hearing, which the Court sets to commence
on Thursday, July 6th, 2023 at 10:00 a.m., in Courtroom 302 (Third Floor) of the William
J. Holloway, Jr. United States Courthouse, 200 N.W. 4th Street, Oklahoma City,
Oklahoma 73102. Any Class Member seeking to object to the proposed Settlement
must file such objection in writing by mailing it to the Court, Class Counsel, and Defense
Counsel, as set forth in the Class Notice.
17.

Accordingly, good cause appearing, the Court hereby ORDERS that the

Class Notice shall be disseminated in accordance with the Settlement and adopts the
following dates and deadlines:
Preliminary Approval Date
Deadline for WFX to provide Settlement
Administrator with the class list and
workweek information
Deadline for Settlement Administrator to
mail the Class Notice to Class Members
Deadline for Class Members to postmark
requests to opt-out or file objections to the
Settlement (“Opt-Out Deadline”)
Deadline for Settlement Administrator to
provide all counsel and the Court with a
final report (a) the final pro rata portion of
each Class Participant and (b) the final
number of Opt-Outs
Deadline for filing of final approval motion
Deadline for Settlement Administrator to
provide all Parties’ counsel with a
statement detailing the notice
administration process and settlement
administration costs
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Wednesday, January 18, 2023
Within 14 days after the Preliminary
Approval Date
Within 28 days after the Preliminary
Approval Date
60 days after the Settlement
Administrator mails the Class Notice
Within 10 days after the Opt-Out
Deadline

Within 30 days after the Opt-Out
Deadline
At least 7 days prior to the Court’s
Final Approval and Fairness Hearing

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Final Approval and Fairness Hearing

Thursday, July 6th, 2023 at 10:00 a.m.

Effective Date

The date when all of the following
events have occurred: (a) the
Settlement has been executed by all
Parties and by Class Counsel and
Defense Counsel; (b) the Court has
given preliminary approval to the
Settlement; (c) the Class Notice has
been disseminated to the Class
Members, providing them with an
opportunity to opt-out of the
Settlement; (d) the Court has held the
Final Approval and Fairness Hearing
and entered a final order and judgment
certifying the Class and approving the
Settlement; and (e) in the event there
are written objections filed prior to the
Final Approval and Fairness Hearing
that are not later withdrawn, the later of
the following events: when the period
for filing any appeal, writ, or other
appellate proceeding opposing the
Settlement has elapsed without any
appeal, writ or other appellate
proceeding having been filed; or any
appeal, writ, or other appellate
proceeding opposing the Settlement
has been dismissed finally and
conclusively with no right to pursue
further remedies or relief; or any
appeal, writ, or other appellate
proceeding has upheld the Court's final
order with no right to pursue further
remedies or relief. The Settlement shall
not become effective until the Court’s
order approving the Settlement is
completely final and there is no further
recourse by an appellant or objector
who seeks to contest the Settlement. In
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Deadline for WFX to remit the Gross
Settlement Amount to the Settlement
Administrator
Deadline for Settlement Administrator to
make payments under the Settlement to
Class Participants, Plaintiff for the Service
Award, Class Counsel for attorneys’ fees
and costs, and itself for settlement
administration expenses
Deadline for Settlement Administrator to
redistribute uncashed check funds to Class
Participants
Deadline for Settlement Administrator to
revert uncashed check funds to cy pres
recipient
18.

the event that no objections are filed,
the Effective Date shall be after steps
(a) through (d) have been completed.
Within 7 days after the Effective Date
Within 14 days after the Effective Date

As soon as practicable after the 180day check-cashing deadline for
individual settlement payments
As soon as practicable after the checkcashing deadline for redistribution
checks

The Court further ORDERS that, pending further order of this Court, all

proceedings in the Action, except those contemplated herein and in the Settlement, are
stayed, and all deadlines are vacated.
19.

The Court ORDERS that to facilitate administration of this Settlement, all

Class Members are hereby enjoined from filing or prosecuting any claims, cases, suits or
administrative proceedings regarding claims released by the Settlement unless and until
such Class Members have submitted Opt-Out Requests to the Settlement Administrator.
20.

In the event that any of the following occur, the proposed Settlement

subject to this Order and all evidence and proceedings had in connection with the
Settlement shall be null and void, shall be vacated, and the Parties shall revert back to
their respective positions as of before entering into the Settlement Agreement: (1) the
Settlement does not become effective in accordance with the terms of the Settlement
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Agreement for any reason; (2) the Court does not execute and file a final approval order
and judgment for any reason; or (3), the Settlement or final approval order and judgment
are terminated, cancelled, or fail to become effective for any reason.
21.

The Court may, for good cause, extend any of the deadlines set forth in this

Order or adjourn or continue the Final Approval and Fairness Hearing without further
notice to the Class Members, and retains jurisdiction to consider all further applications
arising out of or connected with the Settlement.
IT IS SO ORDERED this 18th day of January, 2023.

______________________________
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE

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