Nickell, Eugene et al v. PGA Inc.

Filing 162

ORDER re 161 Joint Response to 160 Order, filed by Erik Sinclair, Eric Schilling, David Krall, Blaine Krohn, Eugene Nickell. Signed by District Judge William M. Conley on 10/23/2019. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ERIC SCHILLING, BLAINE KROHN,
and ERIK SINCLAIR, on behalf of
themselves and others similarly situated,
Plaintiffs,

ORDER

v.
16-cv-202-wmc

PGA INC.,
Defendant.

In response to the court’s October 18, 2019, order, the parties filed a joint response,
clarifying that they intended for only Rule 23 class members to retain their FLSA claim
and submitted a modified, unsigned settlement agreement with updated attachments.
(Dkt. #161.) While the court appreciates the parties’ prompt response, the settlement
agreement itself requires that any modifications must be “signed by the party again whom
enforcement is sought.” (Settlement Agreement (dkt. #157-1) ¶ 11.) As such, the court
will require the parties to submit a modification with the required signatures by the parties
before preliminarily approving the settlement.
The court also notes that the parties filed a revised notice, explaining that those
individuals who did not opt in to the FLSA collective action have retained their FLSA
claims. So far, so good, but the proposed amended notice also states, “You should note,
however, that you may be barred by claim preclusion from bringing your own claim for
overtime pay against PGA for the time period between March 31, 2014 through September
16, 2019, if the Court approves the settlement.” (Revised Not. (dkt. #161-1) 18.) In
their joint response, the parties cite U.S. ex rel. Chovanec v. Apria Healthcare Grp. Inc., 606
F.3d 361 (7th Cir. 2010), for support. However, that case simply cites the well-recognized

proposition that “if the action is related to and based on the facts of an earlier suit, then it
often cannot be refiled—for, once the initial suit is resolved and a judgment entered (on
the merits or by settlement), the doctrine of claim preclusion may block any later
litigation.” Id. at 362.
Here, however, the parties agree that the individuals who did not opt into the FLSA
collective action have not waived that claim, and, therefore, as the parties correctly stated
in the notice previously provided, those who did not opt in to the FLSA collective action
are not bound by the settlement or judgment of that claim. As such, the court will not
approve a notice that states that FLSA claims may be barred by claim preclusion, though
perhaps it would be reasonable to inform these Rule 23 class members that their FLSA
claims (or at least some portion of them) may be time-barred. In amending the notice, the
parties should also amend the language on the first page under the heading “Your Legal
Rights And Options In This Settlement” to clarify that individuals who are only Rule 23
class members are not releasing their FLSA claims.
Once the parties address these concerns, the court will be prepared to issue an order
preliminarily approving the settlement. The court awaits the parties’ response.
Entered this 23rd day of October, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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