TOMPKINS et al v. FARMERS GROUP, INC. et al
MEMORANDUM/OPINION THAT PLAINTIFF'S UNOPPOSED MOTION FOR FINAL COLLECTIVE AND CLASS ACTION SETTLEMENT APPROVAL, ECF NO. 99, IS GRANTED. THE COURT CERTIFIES THE STATE LAW SETTLEMENT CLASS AND APPROVES THE TERMS OF THE PROPOSED $775,000.00 SETTLEMENT AS FAIR AND REASONABLE. A SEPARATE ORDER FOLLOWS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 9/27/17. 9/27/17 ENTERED AND COPIES E-MAILED. (ky, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
WOODROW TOMPKINS; DAVID AMMON;
GARY BASSLER; ANTHONY DEFRANCESCO;
SCOTT MUMLEY; CARLOS NAVARRO;
ADAM WAYCHOFF; JUSTIN ROUNDABUSH;
MARK MORRILL; KEVIN HAYNES; and
JEFF ROUNDTREE, individually and for all those
FARMERS INSURANCE EXCHANGE,
Plaintiffs’ Unopposed Motion for Final Collective and Class Action Settlement Approval,
ECF No. 99 – Granted
Joseph F. Leeson, Jr.
United States District Judge
September 27, 2017
Plaintiffs Woodrow Tompkins, David Ammon, Gary Bassler, Anthony DeFrancesco,
Scott Mumley, Carlos Navarro, Adam Waychoff, Justin Roudabush, Mark Morrill, Kevin
Haynes, and Jeff Roundtree, on behalf of a putative class, and Defendant Farmers Insurance
Exchange have negotiated and agreed to a collective and class settlement that will resolve
Plaintiffs’ claims under the Fair Labor Standards Act, 29 U.S.C. § 201-19 (“FLSA”) and under
the laws of Pennsylvania, Connecticut, New York, Illinois, Washington, and Oregon.
The Court previously determined, on a preliminary basis, that the proposed class satisfies
the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3) and that the proposed
settlement agreement is fair, reasonable, and adequate, and the Court approved Plaintiffs’
proposal to send notice to the members of the potential class and collective action. Plaintiffs now
seek final approval of the class and collective action settlement. For the reasons that follow, the
Court will grant the motion for final approval.
In June 2014, Plaintiffs Woodrow Tompkins, David Ammon, Gary Bassler, Anthony
DeFrancesco, Scott Mumley, Carlos Navarro, and Adam Waychoff filed a complaint against
Farmers alleging that they and other similarly-situated auto claims representatives and field
adjusters were required by Farmers to perform a variety of tasks, such as starting up their
computers and obtaining work assignments, before beginning their shifts each day, and that they
were not paid for this work. Compl. ¶¶ 1-18, ECF No.1. Plaintiffs filed their claims as a
“collective action” under the Fair Labor Standards Act (FLSA), Compl. ¶¶ 44-56, and as a class
action under the laws of Pennsylvania, Compl. ¶¶ 57-67, and Connecticut, Compl. ¶¶ 68-79.
In August 2015, upon Plaintiffs’ motion, the Court approved the distribution of “opt-in”
consent forms to potential members of the collective action. See Opinion & Order, ECF Nos. 4344. By the end of December 2015, a total of about 200 persons had returned opt-in consent forms
to join the litigation. See Opt-in Notices, ECF Nos. 48-53, 55.
In February 2016, Plaintiffs amended their complaint, adding Stephen Guy, Kevin
Haynes, Greg Moore, Mark Morrill, Justin Roudabush, and Jeff Roundtree as named Plaintiffs
and asserting additional state law claims under the laws of New York, Illinois, Washington,
Oregon, and Colorado. Am. Compl., ECF No. 60.
On May 23, 2016, in response to a Motion for Partial Judgment on the Pleadings filed by
Farmers, Plaintiffs voluntarily dismissed their Colorado claims as well as their request for
certification of a proposed Colorado class, and they withdrew Greg Moore, a Coloradoan, as a
named Plaintiff. See Pls.’ Mem. Opp’n Def.’s Mot. 3, ECF No. 78-1. At that time, Plaintiffs also
withdrew Stephen Guy as a Named Plaintiff. Id.at 10 n.2.
On May 31, 2016, the parties participated in a full-day mediation session with mediator
David A. Rotman, at the conclusion of which they accepted the mediator’s proposal to set the
settlement value at $775,000. See Pls.’ Mem. Supp. Mot. Final Approval [hereinafter Pls.’
Mem.] Ex. C, Cohen Dec. ¶ 2, ECF No. 99-9.
In January 2017, upon Plaintiffs’ unopposed motion, the Court made a preliminary
determination that the proposed class action (composed of state law subclasses asserting claims
under the laws of Connecticut, Illinois, New York, Oregon, Pennsylvania, and Washington)
satisfied the applicable requirements of Federal of Civil Procedure Rule 23(a) and Rule 23(b)(3)
and thus appeared to be suitable for certification. See Order, January 24, 2017, ¶¶ 2-3, ECF No.
96. The Court also made a preliminary determination that the proposed class action settlement
terms were “fair, reasonable, and adequate” under Rule 23(e). Id. ¶ 6. The Court appointed the
named Plaintiffs to serve as settlement class representatives, appointed settlement class counsel,
approved the distribution to class members of a form notifying them of the class action lawsuit
and of their rights to participate in, object to, or exclude themselves from the lawsuit, and
appointed Simpluris, Inc., to distribute the notice and to administer claims under the settlement
agreement. Id.¶¶ 4, 5, 10-13. The Court also made a preliminary determination that the parties to
the FLSA collective action had a bona fide dispute regarding the payment of wages and that the
settlement of the FLSA claims was fair, adequate, and reasonable. Id. ¶ 8.
Following the mailing of the notice, one class member submitted a timely, valid request
to be excluded from the settlement. See Pls.’ Mem. Ex. D, Salinas Dec. ¶ 12, ECF No. 99-10. No
objections to the settlement were filed. Id. ¶ 13.
Plaintiffs have now filed an unopposed motion for both (1) final approval of the class
action settlement and (2) final approval of the FLSA collective action settlement. Pls.’ Mot., ECF
No. 99. After a fairness hearing with counsel for the parties on May 23, 2017, the motion for
final approval is ripe for disposition.
The Settlement Agreement
The parties have agreed to settle this case for a total of $775,000.00. See Pls.’ Mem. Ex.
A, Settlement Agreement ¶ 1.14, ECF No. 99-4 [hereinafter “Settlement Agreement”]. The
combined settlement (including both the FLSA collective action and the state law class actions)
will benefit a total of 376 persons. Pls.’ Mot. Ex. D., Salinas Dec. ¶ 8. The FLSA collective
action incudes 208 Plaintiffs, including the 11 named Plaintiffs plus 197 persons who returned
valid opt-in forms. See id. ¶ 6. The class action includes 199 total members, who are divided into
the following six state subclasses: 12 Connecticut residents, 29 Oregon residents, 34
Pennsylvania residents, 39 Illinois residents, 40 New York residents, and 45 Washington
residents. Id. ¶ 6.
Specifically, the six state law subclasses are defined as follows:
The “Connecticut Sub-Class,” including: all current or former non-exempt
employees employed by FIE as APD Claims Representatives, APD Claims
Adjusters, or APD Claims Appraisers in the State of Connecticut from June 17,
2011, until the Preliminary Approval Date of January 23, 2017.
The “Illinois Sub-Class,” including: all current or former non-exempt employees
employed by FIE as APD Claims Representatives, APD Claims Adjusters, or
APD Claims Appraisers in the State of Illinois from February 18, 2013, until the
Preliminary Approval Date of January 23, 2017.
The “New York Sub-Class,” including: all current or former non-exempt
employees employed by FIE as APD Claims Representatives, APD Claims
Adjusters, or APD Claims Appraisers in the State of New York from February 18,
2010 until the Preliminary Approval Date of January 23, 2017.
The “Oregon Sub-Class,” including: all current or former non-exempt employees
employed by FIE as APD Claims Representatives, APD Claims Adjusters, or
APD Claims Appraisers in the State of Oregon from February 18, 2014 until the
Preliminary Approval Date of January 23, 2017.
The “Pennsylvania Sub-Class,” including: all current or former non-exempt
employees employed by FIE as APD Claims Representatives, APD Claims
Adjusters, or APD Claims Appraisers in the Commonwealth of Pennsylvania
from June 17, 2011 until the Preliminary Approval Date of January 23, 2017.
The “Washington Sub-Class,” including: all current or former non-exempt
employees employed by FIE as APD Claims Representatives, APD Claims
Adjusters, or APD Claims Appraisers in the State of Washington from February
18, 2013 until the Preliminary Approval Date of January 23, 2017.
See Settlement Agreement ¶1.25
Plaintiffs propose to divide the total $775,000.00 settlement amount as follows: a
$414,211.72 net settlement fund to the FLSA Opt-In Plaintiffs and the Settlement Class
Members; $48,500.00 to the eleven Named Plaintiffs as Service Awards; $271,250.00 in
attorneys’ fees to Class Counsel; a $26,038.28 cost reimbursement to Class Counsel; and
$15,000.00 to Simpluris for class notice and settlement administration services. Id. ¶ 8.The
Settlement Class Members will receive an average payment of about $1,100.50. Id.
The Court considers below, first, whether the proposed class action meets the
requirements of Federal Rule of Civil Procedure 23; second, whether the proposed FLSA
settlement is fair and adequate; and third, whether Plaintiffs’ request for attorneys’ fees and costs
Plaintiffs have met Rule 23’s requirements for certification of the settlement class
and for approval of the state law class action settlement.
Plaintiffs have met Rule 23(a) and (b)(3)’s requirements for certification of the
A court may only grant final certification “if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23 are met.” In re Hydrogen Peroxide Antitrust Litig.,
552 F.3d 305, 309 (3d Cir. 2008) as amended (Jan. 16, 2009) (quoting Gen. Tel. Co. of SW v.
Falcon, 457 U.S. 147, 161 (1982)). For certification under Rule 23, the Class must satisfy the
prerequisites of Rule 23(a) and one of Rule 23(b)’s three subparts. Hydrogen Peroxide
Antitrust Litig., 552 F.3d at 309–10. The party seeking class certification “bears the burden of
establishing each element of Rule 23 by a preponderance of the evidence.” Marcus v. BMW of
N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012). In this case, the Court finds that the parties
have satisfied the requirements for certification under Rule 23.
The class satisfies the requirements of Rule 23(a).
Under Rule 23(a), a party seeking certification must demonstrate the following:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
Fed. R. Civ. P. 23(a).
First, Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
impracticable.” Moreover where, as here, subclasses are created, Rule 23(c)(5) requires that each
subclass be treated as a class. “This means that each subclass must independently meet the
requirements of Rule 23 for maintenance of a class action.” Fanty v. Com. of Pa., Dep’t of Pub.
Welfare, 551 F.2d 2, 7 n.4 (3d Cir. 1977) (quoting 7A C. Wright & A. Miller, Federal Practice
and Procedure § 1790 at 191-92 (1972)). Thus, each of the six subclasses proposed by Plaintiffs
must independently satisfy Rule 23(a)(1)’s numerosity requirement.
“No minimum number of plaintiffs is required to maintain a suit as a class action, but
generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40,
the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir.
2001). This inquiry should be “particularly rigorous” when the putative class consists of fewer
than forty members, and leading treatises have recognized the general rule that a class of twenty
or fewer is usually insufficiently numerous. See In re Modafinil Antitrust Litigation, 837 F.3d
238, 250 (3d Cir. 2016). Relevant factors to consider when determining whether joinder would
be impracticable include “judicial economy, the claimants’ ability and motivation to litigate as
joined plaintiffs, the financial resources of class members, the geographic dispersion of class
members, the ability to identify future claimants, and whether the claims are for injunctive relief
or for damages.” See id. at 253.
As indicated above, three of the six proposed state law subclasses include fewer than
forty members, with the Connecticut class including only twelve members. Nevertheless,
consistent with the Court’s preliminary determinations in its previous Order, ECF No. 96, the
Court finds that because of the gains in judicial economy realized by litigating the individual
parties’ claims as part of this action and because the individual parties in this case lack the ability
and motivation to pursue their litigation via joinder, the numerosity requirement is met for each
subclass. In particular, in view of the fact that the maximum average value of the class members’
claims is $5,586.00—a relatively low figure in comparison with the potential complexity of the
issues involved—it is unlikely that the individual class members would have the ability or
motivation to litigate individually or as joined plaintiffs. See Pls.’ Mem. 12. Moreover, the
individual class members are insurance adjusters or appraisers who likely have relatively limited
financial resources to pursue these relatively low-value claims. See id. at 13. Finally, the twelve
Connecticut class members live in eleven different cities or towns across eleven different postal
zip codes, posing a further obstacle to joinder of their claims in particular. See Salinas Dec. ¶ 6.
Second, Rule 23(a)(2) requires the existence of “questions of law or fact common to the
class.” Here, there are common questions of law concerning whether Farmers paid class
members all wages due under the respective state laws, and there are common questions of fact
concerning whether the class members were required to perform pre-shift work. See Pls.’ Mem.
Third, Rule 23(a)(3) requires the claims of the representative plaintiffs to be “typical” of
the claims of the class. Here, the Named Plaintiffs worked on a full-time basis in the same or
similar positions to the class members (i.e., APD Claims Representative, APD Claims Adjuster,
or APD Claims Appraiser). See Pls.’ Mem. 17.
Fourth and finally, Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class.” The class members are adequately represented if (1)
the interests of the class representative do not conflict with the class members’ interests and (2)
class counsel are experienced, vigorously prosecuted the action, and acted at arm’s length from
the defendant. See In re Wafarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004). Here,
Plaintiffs’ counsel have significant experience in prosecuting class and collective actions,
including multi-state wage and hour claims, see Pls.’ Mem. 17-18, and the named Plaintiffs do
not appear to have any interests incompatible with those of the class members.
In sum, the proposed state law classes meet Rule 23(a)’s requirements of numerosity,
commonality, typicality, and adequacy of representation.
The class also satisfies the requirements of Rule 23(b)(3).
Rule 23(b)(3), under which Plaintiffs seek final class certification, requires that
“questions of law or fact common to class members 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.” Fed. R. Civ. P. 23(b)(3).
First, the “predominance” inquiry tests “whether the defendant’s conduct was common as
to all of the class members, and whether all of the class members were harmed by the
defendant’s conduct.” Sullivan v. DB Investments, Inc., 667 F.3d 273, 298 (3d Cir. 2011) (en
banc). Here, as discussed above in connection with the Rule 23(a)(2) commonality criterion,
there are questions of law and fact common to the class. In view of Plaintiffs’ allegations that
Farmers enforced common policies and procedures that required the class members, all of whom
worked in similar positions, to perform pre-shift work, the Court finds that these commonalities
predominate over any questions affecting individual class members.
Second, the superiority requirement asks the Court to consider (1) “the class members’
interests in individually controlling the prosecution or defense of separate actions”; (2) “the
extent and nature of any litigation concerning the controversy already begun by or against class
members”; (3) “the desirability or undesirability of concentrating the litigation of the claims in
the particular forum”; and (4) “the likely difficulties in managing a class action.” Fed. R. Civ. P.
23(b)(3)(A)-(D). With respect to this fourth criterion, in cases of settlement-only class
certifications, as here, “a district court need not inquire whether the case, if tried, would present
intractable management problems . . . for the proposal is that there be no trial.” See Amchem
Prod., Inc. v. Windsor, 521 U.S. 591, 620 (1997). As set forth above, in view of the relatively
small amount recoverable by the individual class members and their relatively limited financial
resources, the superiority element is satisfied in this case.
Therefore, because the prerequisites of Rule 23(a) and Rule 23(b)(3) are satisfied, the
Court will certify the settlement class, including each of the six state-law subclasses.
Class Notice was the best notice practicable under the circumstances.
“Before approving a proposed settlement, a court must also ensure that there has been
compliance with Rule 23’s provisions regarding . . . adequate notice to class members. Phillips v.
Philadelphia Hous. Auth., No. CIV.A. 00-4275, 2005 WL 1025151, at *3 n.2 (E.D. Pa. May 2,
2005). Specifically, Federal Rule 23(c)(2)(B) requires that the Court direct to class members “the
best notice that is practicable under the circumstances, including individual notice to all members
who can be identified through reasonable effort.”
The Court previously approved the notice process proposed by Plaintiffs. As described in
the declaration provided by Jarrod Salinas of Simpluris, the claims administrator in this action,
Simpluis followed the approved process. Pls.’ Mem. Ex. D, Salinas Dec. Accordingly, the Court
finds that Plaintiffs provided sufficient notice under Rule 23.
The terms of the class action settlement are “fair, reasonable, and adequate” under
After considering the certification of the settlement class, the next step is to consider
whether the terms of the settlement are “fair, reasonable, and adequate” under Rule 23(e). In
doing so, the District Court “evaluates the agreement as a fiduciary for absent class members.”
Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir. 2010). “The reason for judicial
approval is to ensure that other unrepresented parties (absent class members) and the public
interest are fairly treated by the settlement reached between the class representatives and the
defendants.” Id. “In cases of settlement classes, where district courts are certifying a class and
approving a settlement in tandem, they should be “even ‘more scrupulous than usual’ when
examining the fairness of the proposed settlement.” See In re Nat’l Football League Players
Concussion Injury Litig., 821 F.3d 410, 436 (3d Cir.), as amended (May 2, 2016) (quoting In re
Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir. 2004)).
The Third Circuit has held that there is a “presumption of fairness” where: (1) the
settlement negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the
proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of
the class objected. Warfarin, 391 F.3d at 535. Here, as discussed above, the parties reached the
settlement after a full-day mediation session with an experienced mediator. See Cohen Dec. ¶ 2.
Second, Farmers’ produced a significant amount of discovery. Id. ¶ 3. Third, both parties were
represented by experienced counsel. Fourth, there were no objections and only one person
requested exclusion from the class. Accordingly, the proposed settlement meets the four criteria
required for the presumption of fairness to apply. 1
After determining whether the initial presumption of fairness applies, the court is
required to consider whether the proposed settlement is fair, reasonable, and adequate under the
nine factors identified in Girsh v. Jepson:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction
of the class to the settlement; (3) the stage of the proceedings and the amount of
discovery completed; (4) the risks of establishing liability; (5) the risks of
establishing damages; (6) the risks of maintaining the class action through the
trial; (7) the ability of the defendants to withstand a greater judgment; (8) the
range of reasonableness of the settlement fund in light of the best possible
recovery; and (9) the range of reasonableness of the settlement fund to a possible
recovery in light of all the attendant risks of litigation.
521 F.2d 153, 157 (3d Cir. 1975).
Here, the first factor—regarding the complexity, expense, and likely duration of the
litigation—weighs in favor of settlement because, absent a negotiated settlement, this case would
have required, initially, resolution of Farmers’ motion for partial judgment on the pleadings,
which sought dismissal of Plaintiffs’ wage payment claims under the laws of Pennsylvania,
Illinois, and Washington, as well as Plaintiffs’ claims under New York law. See Def.’s Mot.,
ECF No. 75. Resolution of this motion would have required analysis of each of these states’
laws, adding to the complexity and duration of the litigation. Moreover, following resolution of
Farmers’ motion, the case would have required “class-wide merits and damages discovery, likely
including dozens of depositions and then on to contested motions for final FLSA certification (or
decertification) . . . and summary judgment if not trial,” all of which would have contributed
significantly to the duration and expense of the litigation. See Pls.’ Mem. 25.
The second factor also weighs in favor of settlement because the parties have not
received any objections and have received only one request for exclusion from the class, thus
indicating that the class members support the settlement.
The third factor requires the court to “determine whether counsel had an adequate
appreciation of the merits of the case before negotiating.” Warfarin, 391 F.3d at 537 (quoting In
re Cendant Corp. Litig., 264 F.3d 201, 235 (3d Cir. 2001)). As discussed above, the experienced
counsel in this case conducted extensive discovery and a daylong mediation session before
reaching settlement. Accordingly, this factor also weighs in favor of settlement.
At least one court of this District has recognized that this presumption of fairness creates
a paradox in light of the simultaneous Wafarin Sodium requirement of even more scrupulous
review than usual for settlement classes, where district courts are certifying a class and
approving a settlement in tandem. See Altnor v. Preferred Freezer Servs., Inc., 197 F. Supp. 3d
746, 760 n.4 (E.D. Pa. 2016).
With respect to the fourth and fifth factors, concerning the risks of establishing liability
and damages, Farmers has pleaded several defenses, including that its policies and procedures
did not require off-the-clock work and that it had no reason to know that the class members were
performing such work. And, as discussed above, Farmers has filed motion for judgment on the
pleadings, seeking dismissal of several of Plaintiffs’ state law claims. The Court concludes that,
in view of the risks of establishing liability in the face of these defenses, the fourth and fifth
factors also weigh in favor of settlement.
With respect to the sixth factor, the Third Circuit has instructed that this factor is
essentially “toothless” in settlement classes in light of the Supreme Court’s statement in Amchem
Products, Inc. v. Windsor that, in such cases, a district court need not inquire whether the case, if
tried, would present intractable management problems. See In re Prudential Ins. Co. Am. Sales
Practice Litig. Agent Actions, 148 F.3d 283, 321 (3d Cir. 1998).
The seventh factor “is most relevant when the defendant’s professed inability to pay is
used to justify the amount of the settlement.” Nat’l Football League Players Concussion Injury
Litig., 821 F.3d at 440. Farmers is a large corporation that likely could withstand a larger
settlement. But “‘in any class action against a large corporation, the defendant entity is likely to
be able to withstand a more substantial judgment, and, against the weight of the remaining
factors, this fact alone does not undermine the reasonableness of the . . . settlement.’” Sullivan,
667 F.3d at 323 (quoting Weber v. Gov’t Empl. Ins. Co., 262 F.R.D. 431, 447 (D.N.J. 2009)).
In evaluating the eighth and ninth Girsh factors, the court asks “whether the settlement
represents a good value for a weak case or a poor value for a strong case.” Warfarin, 391 F.3d at
538. Here, the typical class member’s claim has a maximum value of $5,586, while, under the
settlement agreement, the class members will receive an average payment of about $1,100,
which is about 20% of the maximum claim value. See Pls.’ Mem. 30. These factors appear to be,
at best, neutral in this case. Although Plaintiffs have cited several cases involving securities
litigation in which courts approved settlements with a lower percentage of the maximum claim
value, Plaintiffs have not pointed to any cases involving wage-and-hour claims with comparable
percentages of maximum claim value.
Nevertheless, despite the ambiguous results of factors eight and nine, the Girsh factors,
on balance, favor approval of the Settlement Agreement, and the Court finds the terms to be fair,
reasonable, and adequate.
The Court approves the FLSA Collective Action settlement.
Having determining the fairness of the class action settlement, the Court next
determines whether the proposed settlement of Plaintiffs’ FLSA claims “‘is a fair and
reasonable resolution of a bona fide dispute over FLSA provisions’ rather than ‘a mere waiver
of statutory rights brought about by an employer’s overreaching.’” Cuttic v. Crozer–Chester
Med. Ctr., 868 F. Supp. 2d 464, 466 (E.D. Pa. 2012) (quoting Lynn’s Food Stores, Inc. v.
United States, 679 F.2d 1350, 1354 (11th Cir. 1982)). A proposed settlement resolves a bona
fide dispute if its terms “reflect a reasonable compromise over issues, such as . . . back wages,
that are actually in dispute.” Lynn’s Food, 679 F.2d at 1354. Here, the Settlement Agreement
resolves a bona fide dispute between the parties. As discussed above, Farmers asserted several
defenses to Plaintiffs’ claims and the parties disagree on various legal issues.
Having determined that the Settlement Agreement resolves a bona fide dispute under the
FLSA, the Court must conduct a two-part fairness inquiry to ensure that (1) the settlement is fair
and reasonable for the employees and (2) the settlement furthers the FLSA’s implementation in
the workplace. See Mabry v. Hildebrandt, No. 14-5525, 2015 WL 5025810, at *2 (E.D. Pa. Aug.
24, 2015); McGee v. Ann’s Choice, Inc., No. 12-cv-2664, 2014 WL 2514582, at *2 (E.D. Pa.
June 4, 2014). In evaluating whether a settlement is “fair and reasonable” under the FLSA, courts
in the Third Circuit have considered the Girsh factors as they do in the state law class context.
Waltz v. Aveda Transportation & Energy Servs. Inc., No. 4:16-cv-00469, 2017 WL 2907217, at
*3 (M.D. Pa. July 7, 2017); Brumley v. Camin Cargo Control, Inc., No. 08-1798, 2012 WL
1019337, at *4 (D.N.J. Mar. 26, 2012) (noting courts’ use of Girsh factors in FLSA context in
the absence of clear Third Circuit standards). Here, as discussed above, the Girsh factors favor
approval of the proposed Settlement Agreement. Therefore, the Court finds that the proposed
settlement of Plaintiffs’ FLSA claims is fair and reasonable for the employees.
Lastly, the Court must consider whether the settlement furthers or frustrates the
implementation of the FLSA in the workplace. The proposed Settlement Agreement here does
not contain a confidentiality clause and thus avoids a common basis for rejecting a proposed
FLSA collective settlement. See, e.g., Mabry, 2015 WL 5025810, at *2–3. Nor does the
Settlement contain the sort of impermissibly broad release provisions that courts have found
invalid. See, e.g., Kraus, 155 F. Supp. 3d at 532–33; Bettger v. Crossmark, Inc., No. 13-2030,
2015 WL 279754, at *8–10 (M.D. Pa. Jan. 22, 2015). Therefore, the Court finds that the
Settlement’s terms do not impermissibly frustrate the FLSA's implementation.
The Settlement Agreement meets all the requirements for approval of a FLSA
collective action and this Court grants final approval. 2
Plaintiffs also seek “final FLSA certification for settlement purposes,” Pls.’ Mem. 21, but
as Farmers pointed out at the fairness hearing, this step is unnecessary for approval of the
settlement. See In re Wells Fargo Wage & Hour Employment Practices Litig. (No. III), 18 F.
Supp. 3d 844, 853 (S.D. Tex. 2014) (“While there is a second stage in FLSA collective action
cases during which the court may decertify the class if the plaintiffs are not similarly situated in
light of information gathered during post-certification discovery, there was no need to reach the
decertification stage here since the parties settled the case.”).
The Court approves Plaintiffs’ unopposed request for incentive, fee, and expense
The requested service awards are appropriate in this case.
The Third Circuit has explained that incentive awards to named plaintiffs in class actions
exist “to compensate named plaintiffs for the services they provided and the risks they incurred
during the course of class action litigation.” Sullivan, 667 F.3d at 333 n.65. Where, as here, the
proposed incentive award comes out of the common fund, independent of attorneys’ fees, the
court must “carefully review” the request for fairness to other class members. Altnor v. Preferred
Freezer Servs., Inc., 197 F. Supp. 3d 746, 770 (E.D. Pa. 2016). Factors courts use to evaluate the
appropriateness of awards include the financial, reputational, and personal risks to the plaintiff;
the degree to which the plaintiff was involved in discovery and other litigation responsibilities;
the length of the litigation; and the degree to which the named plaintiff benefitted as a class
member. Hall v. Best Buy Co., 274 F.R.D. 154, 173 (E.D. Pa. 2011).
Here, Plaintiffs propose that of the eleven class representatives, two representatives
should receive awards of $5,000; five representatives should receive awards of $4,500; and four
representatives should receive awards of $4,000. Pls.’ Supp. Br. 3, ECF No. 100. 3 The awards
that Plaintiffs request fall within “the range of compensation” that courts have approved for
individual incentive awards. See In re Shop-Vac Mktg. & Sales Practices Litig., No. 4:12-md2380, 2016 WL 7178421, at *4 (M.D. Pa. Dec. 9, 2016) (citing examples of incentive awards
between $2,500 and $6,000). In this case, the reputational risk the Named Plaintiffs took by
having their names attached to a class action suit they brought against their employer particularly
justifies an award. Additionally, the named Plaintiffs have participated actively in this litigation:
they produced and assisted in the review of documents, spoke with putative class members and
encouraged their cooperation with this case, provided declarations in support of motions, and
assisted with settlement negotiations. See Pls.’ Supp. Br. 2. This involvement and personal risk
justifies the awards which Plaintiffs seek.
The requested attorneys’ fees and costs are appropriate in this case.
Plaintiffs seek $271,250 in attorneys’ fees, equal to approximately 35% of the $775,000
Settlement Fund, as well $26,038.28 in litigation costs and expenses and a separate amount of
$15,000 owed to the Simpluris firm for administering the settlement.
The Court may award fees and costs under the “common fund” doctrine, which holds that
“a private plaintiff, or plaintiff’s attorney, whose efforts create, discover, increase, or preserve a
Specifically, Plaintiffs propose the following amounts: Woodrow Tompkins ($5,000.00),
Gary Bassler ($5,000.00), David Ammon ($4,500.00), Anthony DeFrancesco ($4,500.00), Scott
Mumley ($4,500.00), Carlos Navarro ($4,500.00), Adam Waychoff ($4,500.00) Justin
Roudabush ($4,000.00), Mark Morrill ($4,000.00), Kevin Haynes ($4,000.00) and Jeff
fund to which others also have a claim, is entitled to recover from the fund the costs of his
litigation, including attorneys’ fees.” See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank
Prod. Liab. Litig., 55 F.3d 768, 820 n.39 (3d Cir. 1995). In addition, with respect to the FLSA
claims, the FLSA provides that the Court “shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of
the action.” 29 U.S.C. § 216(b).
In the Third Circuit, the percentage-of-recovery method is generally favored in common
fund cases because it allows courts to award fees from the fund in a manner that rewards counsel
for success and penalizes it for failure. See Altnor, 197 F. Supp. 3d at 765. This method is also
the prevailing methodology used by courts in the Third Circuit in wage and hour cases. Id.
Courts generally consider seven factors to determine the reasonableness of the requested
fees under the percentage-of-recovery method:
(1) the size of the fund created and the number of persons benefitted; (2) the
presence or absence of substantial objections by members of the class to the
settlement terms and/or the fees requested by counsel; (3) the skill and efficiency
of the attorneys involved; (4) the complexity and duration of the litigation; (5) the
risk of nonpayment; (6) the amount of time devoted to the case by counsel; and
(7) awards in similar cases.
These factors justify the fees and costs requested. With respect to the first factor, the size
of the fund created and number of people benefitted, “[a]s a general rule, as the size of a fund
increases, the appropriate percentage to be awarded to counsel decreases.” In re Cendant Corp.
Derivative Action Litigation, 232 F. Supp. 2d 327, 337 (D.N.J. 2002). “This inverse relationship
rests on the assumption that the increase in a recovery’s size is often due to the size of the class
and not the efforts of counsel.” Altnor, 197 F. Supp. 3d at 765. This factor is neutral in the
present case because, as discussed below, the requested percentage of recovery is near the
midpoint of the spectrum of requests approved in this Circuit.
Second, the Court considers the presence or absence of objections to the fees requested.
As discussed above, no potential Class Members have objected to the Settlement Agreement or
the requested attorneys’ fees and expenses. This factor favors approval of the fees as requested.
With respect to the third factor, the skill and efficiency of the attorneys, as discussed
above, class counsel has substantial experience litigating class and collective action employment
disputes. This factor also favors approval of the fees as requested.
The fourth factor considers the complexity and duration of the litigation. This litigation
began in 2014 and, as discussed above, but for the settlement reached here, would have required
resolution of Farmers’ motion for judgment on the pleadings, which concerned several of
Plaintiffs’ state law claims, adding to the complexity of this matter. Moreover, class counsel had
to analyze the wage and hour data of over two hundred persons, which involved complicated
and time-consuming calculations of damages. See Brumley, 2012 WL 1019337, at *11 (analysis
of records for 112 plaintiffs to reach settlement of wage and hour case found to be complex).
Furthermore, preparation of this case involved research of complex legal and factual issues and
preparation for a full day’s mediation session that led to the favorable outcome for the
settlement class. This factor also favors approval of the requested fees.
Next, the Court considers the risk of nonpayment and the amount of time devoted to the
case by counsel. Here, class counsel provided their representation on a contingent basis, without
any promise or guarantee of recovery, see Pls.’ Supp. Br. Ex. A, Cohen Dec. ¶ 21, ECF No.
100-1, and spent more than 753 hours on this case, including review of employee wage and hour
data and preparing for and attending the mediation session that led to the settlement, see Pls.’
Supp. Br. 5.
Lastly, the Court compares the requested award with awards in similar cases. “In this
Circuit, the percentage of the recovery award in FLSA common fund cases ranges from roughly
20–45%.” Mabry, 2015 WL 5025810, at *4. Overall, “a benchmark of one-third of the
settlement fund is often appropriate to prevent a windfall to counsel.” Id. See Altnor, 197 F.
Supp. 3d at 768–69. Plaintiffs’ request for a slightly higher figure of 35% is reasonable. This last
factor weighs heavily in favor of approving the award and, weighing it with each of the factors
discussed above, the Court grants the attorneys’ fees as requested. 4
Finally, “[i]n the Third Circuit, it is standard practice to reimburse litigation expenses in
addition to granting fee awards.” McDonough v. Toys R Us, Inc., 80 F. Supp. 3d 626, 658 (E.D.
Pa. 2015). “There is no doubt that an attorney who has created a common fund for the benefit of
the class is entitled to reimbursement of his reasonable litigation expenses from that fund.”
Lachance v. Harrington, 965 F. Supp. 630, 651 (E.D. Pa. 1997). Here, class counsel state that
they have incurred expenses in the amount of $26,038.28, and the Court grants this request as
reasonable relative to the size of the common fund. The Court observes, however, that although
attorneys Cohen and Zouras have provided a reasonably detailed description of their expenses in
the total amount of $7,311.37, see Pls.’ Supp. Br. Ex. A, Cohen Dec. ¶¶ 17-20, the attorneys for
the Theirman Buck law firm have failed to describe, much less document, the expenses for
which they seek reimbursement in the amount of $18,726.91, see Pls.’ Supp. Br. Ex. B, Buck
Dec. ¶ 5, ECF No. 100-2. This latter approach is disfavored, but the Court will grant the
requested amount nevertheless. See Lachance v. Harrington, 965 F. Supp. 630, 651 (E.D. Pa.
1997) (“Ideally, expense petitions should contain not just the total expense requested for a
particular service, but also a breakdown of the price per unit of the service and the number of
units consumed, especially when those services are provided in-house.”).
Plaintiffs also contend that the requested fee is supported by a lodestar crosscheck, see
Pls.’ Supp. Br. 5-6, but as the court in Altnor observed, the relevance of this method “is
increasingly challenged by the realities of today’s legal practice.” 197 F. Supp. 3d at 767.
Specifically, “when many areas of legal practice today are no longer founded on standard hourly
rates and more commonly driven by fixed fees, blended rates, and contingency fee agreements,
the lodestar cross-check has become largely illusory.” Id. (footnote omitted).
Finally, the Court approves the $15,000 fee to Simpluris. See, e.g., Van Kempen v.
Matheson Tri-Gas, Inc., No. 15-CV-00660-HSG, 2017 WL 3670787, at *9 (N.D. Cal. Aug. 25,
2017) (awarding costs to Simpluris and observing that courts “regularly award administrative
costs associated with providing notice to the class”).
For the foregoing reasons, the Court certifies the state law settlement class (including the
six state law subclasses) and approves the terms of the proposed $775,000.00 settlement as fair
The Court approves payment of $48,500.00 in Enhancement Awards to Named Plaintiffs
Woodrow Tompkins ($5,000.00), Gary Bassler ($5,000.00), David Ammon ($4,500.00),
Anthony DeFrancesco ($4,500.00), Scott Mumley ($4,500.00), Carlos Navarro ($4,500.00),
Adam Waychoff ($4,500.00) Justin Roudabush ($4,000.00), Mark Morrill ($4,000.00), Kevin
Haynes ($4,000.00) and Jeff Roundtree ($4,000.00).
The Court approves the requested $271,250.00 attorneys’ fee, the proposed $26,038.28
cost reimbursement, and the requested $15,000.00 settlement administration cost.
A separate order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.__________
JOSEPH F. LEESON, JR.
United States District Judge
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