Lopez v. KMDG LLC et al
Filing
22
ORDER signed by Judge Rudolph T. Randa on 8/24/2015. By 9/11/2015 parties to file response to the questions raised by this Order. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MANUEL LOPEZ,
Individually and on behalf
of those similarly situated,
Plaintiffs,
-vs-
Case No. 14-C-281
KMDG LLC,
d/b/a The Branded Steer Wood
Grill Rotisserie & Saloon, and
DENNIS GIANNOPOULOS,
Defendants.
DECISION AND ORDER
This putative class action to recover unpaid overtime wages under
the Fair Labor Standards Act (“FLSA”) and Wisconsin’s wage and hour
laws is before the Court for approval of a settlement agreement between
“Plaintiff Manuel Lopez and those individuals who have opted into this
action, Jesus Flores, Homero Lopez, Antonio Aquino, Noe Guitron, Ever
Lopez, Pedro Lopez, and Jose Rodriguez . . . and Defendants KMDG LLC,
d/b/a The Braned [sic] Steer Wood Grill Rotisserie & Saloon and Dennis
Giannopoulos.” (ECF No. 21.) As will be further explained, the proposed
stipulation raises several questions and will not be approved until they are
resolved.
The FLSA permits collective action “against any employer . . . by
any one or more employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. § 216(b). Unlike a typical
class action suit under Fed. R. Civ. P. 23, where an unwilling plaintiff must
“opt out” of the class, a class action pursuant to Section 216(b) of the FLSA
requires employees or former employees to “opt in” to the class, by filing a
written consent to join the action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578,
579-80 (7th Cir. 1982) (explaining differences between collective action
under the FLSA and class action certified pursuant to Rule 23).
While seeking court approval of the settlement as required by the
FLSA, the parties do not address the collective action aspect of the case
and, other than having the additional individuals opt in, Manuel Lopez has
not sought conditional certification of the action. The parties’ stipulation
also cites cases regarding attorneys’ fees, In re Linerboard Antitrust Litig.,
292 F. Supp. 2d 631, 640 (E.D. Pa. 2003) and In re Rent-Way Sec. Litig.,
305 F. Supp. 2d 491, 509 (W.D. Pa. 2003); however, both are class action
cases. There is a further concern regarding the impact of Damasco v.
Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011) on the proposed
collective nature of the action. See Morse v. Equity Lifestyle Props. Inc., No.
2:13-CV-00408-JMS-MJD, 2014 WL 1764927 at *3 (S.D. Ind. Apr. 30,
-2-
2014). Therefore, the Court will require the parties to file a response to the
foregoing questions by the stated deadline.
The parties’ attention is also directed to the first sentence in
paragraph six of their stipulation which contains two typographical errors
in the specified years.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
The parties MUST file a response to the questions raised by this
Decision on or before September 11, 2015.
Dated at Milwaukee, Wisconsin, this 24th day of August, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
-3-
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