RAMIREZ

v.

MIKE KELLY CONSTRUCTION, INC.

and other similarly situated individuals,

Plaintiffs, v. Case No: 6:20-cv-538-Orl-37GJK

CONSILIUM GROUP, INC., AEG INSTALLATION CORP., MICHAEL P. KELLY, and ADA D. ORTIZ,

Defendants.

REPORT AND RECOMMENDATION

This cause came on for consideration without oral argument on the following motion: MOTION: SECOND REVISED JOINT MOTION TO APPROVE FLSA SETTLEMENT AND STIPULATION OF DISMISSAL (Doc. No. 38) FILED: September 25, 2020

THEREON it is RECOMMENDED that the motion be GRANTED.

I. BACKGROUND.

On June¹, 2020, Plaintiffs filed a Second Amended Complaint against Defendants, alleging violations of the overtime, minimum wage, and retaliation provisions of the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 201, et seq. Doc. No. 13. Plaintiff alleges that they worked for Defendants from approximately November 15, 2019 through February⁵, 2020, doing construction, remodeling, and moving work. Id. at ¶¶ 25, 36, 37. On September 25, 2020, the parties filed a Second Revised Joint Motion to Approve FLSA Settlement and Stipulation of Dismissal (“the Motion”). Doc. No. 38. The parties’ previous motions to approve prior settlement agreements were denied because they contained confidentiality provisions, a general release without separate consideration, a modification provision that did not provide for judicial approval, and a prohibition on future employment. Doc. Nos. 35, 37. The settlement agreement attached to the Motion (the “Agreement”) remedies these issues. Doc. No. 38-1.

II. LAW.

In Lynn’s Food Stores, Inc. v. United States Department of Labor, 679 F. 2d 1350, 1352- 53 (11th Cir. 1982), the Eleventh Circuit addressed the means by which an FLSA settlement may become final and enforceable: There are only two ways in which back wage claims arising under the FLSA can be settled or compromised by employees. First, under section 216(c), the Secretary of Labor is authorized to supervise payment to employees of unpaid wages owed to them . . . . The only other route for compromise of FLSA claims is provided in the context of suits brought directly by employees against their employer under section 216(b) to recover back wages for FLSA violations. When employees bring a private action for back wages under the FLSA, and present to the district court a proposed settlement, the district court may enter a stipulated judgment after scrutinizing the settlement for fairness.

Thus, unless the parties have the Secretary of Labor supervise the payment of unpaid wages owed or obtain the Court’s approval of the settlement agreement, the parties’ agreement is unenforceable. Id.; see also Sammons v. Sonic-North Cadillac, Inc., No. 6:07-cv-277-Orl-19DAB, 2007 WL 2298032, at *5 (M.D. Fla. Aug. 7, 2007) (noting that settlement of FLSA claim in arbitration proceeding is not enforceable under Lynn’s Food because it lacked Court approval or supervision by the Secretary of Labor). Before approving an FLSA settlement, the Court must scrutinize it to determine if it is a fair and reasonable resolution of a bona fide dispute. Lynn’s Food Store, 679 F. 2d at 1354-55. If the settlement reflects a reasonable compromise over issues that are actually in dispute, the Court may approve the settlement. Id. at 1354. In determining whether the settlement is fair and reasonable, the Court should consider the following factors: (1) the existence of collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of plaintiff’s success on the merits; (5) the range of possible recovery; and (6) the opinions of counsel.

Leverso v. SouthTrust Bank of Ala., Nat’l Assoc., 18 F. 3d 1527, 1531 n.6 (11th Cir. 1994); Hamilton v. Frito-Lay, Inc., No. 6:05-cv-592-Orl-22JGG, 2007 WL 328792, at *2 (M.D. Fla. Jan. 8, 2007), report and recommendation adopted, 2007 WL 219981 (M.D. Fla. Jan. 26, 2007). The Court should be mindful of the strong presumption in favor of finding a settlement fair. See Cotton v. Hinton, 559 F. 2d 1326, 1331 (5th Cir. 1977).1 In FLSA cases, the Eleventh Circuit has questioned the validity of contingency fee agreements. Silva v. Miller, 307 F. App’x 349, 351 (11th Cir. 2009) (citing Skidmore v. John J. Casale, Inc., 160 F. 2d 527, 531 (2d Cir. 1947) (“We have considerable doubt as to the validity of the contingent fee agreement; for it may well be that Congress intended that an employee’s recovery should be net[.]”)).2 In Silva, the Eleventh Circuit stated: That Silva and Zidell entered into a contingency contract to establish Zidell’s compensation if Silva prevailed on the FLSA claim is of little moment in the context of FLSA. FLSA requires judicial review of the reasonableness of counsel’s legal fees to assure both that counsel is compensated adequately and that no conflict of interest taints the amount the wronged employee recovers under a settlement agreement. FLSA provides for reasonable attorney’s fees; the

Silva, 307 F. App’x at 351-52. For the Court to determine whether the proposed settlement is reasonable, counsel for the claimant must first disclose the extent to which the FLSA claim has or will be compromised by the deduction of attorney’s fees, costs or expenses pursuant to a contract between the plaintiff and counsel, or otherwise. Id. When a plaintiff receives less than a full recovery, any payment (whether or not agreed to by a defendant) above a reasonable fee improperly detracts from the plaintiff’s recovery.³ Thus, a potential conflict can arise between counsel and client regarding how much of the plaintiff’s total recovery should be allocated to attorney’s fees and costs.4 It is the Court’s responsibility to ensure that any such allocation is reasonable. See id. As the Court interprets Lynn’s Food and Silva, where there is a compromise of the amount due to the plaintiff, the Court should decide the reasonableness of the attorney’s fees provision under the parties’ settlement agreement using the lodestar method as a guide. In such a case, any compensation for attorney’s fees beyond that justified by the lodestar method is unreasonable unless exceptional circumstances would justify such an award. An alternate means of demonstrating the reasonableness of attorney’s fees and costs was

Bonetti, 715 F. Supp. 2d at 1228 (emphasis added). Judge Presnell maintained that if the matter of attorney’s fees is “addressed independently and seriatim, there is no reason to assume that the lawyer’s fee has influenced the reasonableness of the plaintiff’s settlement.” Id. The undersigned finds this reasoning persuasive.

III. ANALYSIS.

A. Settlement Amount.

This case involves disputed issues of FLSA liability, which constitutes a bona fide dispute. Doc. No. 38 at 2-3. The parties are represented by independent counsel. Id. at 6. Under the Agreement, Plaintiff Ramirez is receiving $4,000, which represents unpaid wages and an equal amount of liquidated damages, and Plaintiff Guerrero is receiving $2,500, which represents unpaid wages and an equal amount of liquidated damages. Doc. 38-1 at 2. In the Motion, Plaintiffs set forth their claimed hours worked. Doc. No. 38 at 1-2. Calculating only overtime owed, and assuming no overtime was paid, Plaintiff Ramirez would be owed $6,102,5 and Plaintiff Guerrero would be owed $5,148,6 in unpaid overtime. See id. Since Plaintiffs are receiving less than the amounts they claimed, they may have compromised their claims under the FLSA. See Caseres v. Tex. de Brazil (Orlando) Corp., 6:13-

cv-1001-Orl-37KRS, 2014 WL 12617465, at *2 (M.D. Fla. April. 2, 2014) (“Because [plaintiff] will receive under the settlement agreement less than she averred she was owed under the FLSA, she has compromised her claim within the meaning of Lynn’s Food Stores.”). The case involves disputed issues regarding FLSA liability, which constitutes a bona fide dispute. Doc. No. 38 at 2- 3. After receiving sufficient information to make informed decisions, the parties decided to settle their dispute. Id. at 3. Considering the foregoing, and the strong presumption favoring settlement, even if Plaintiffs compromised the amount of their original claims, the settlement amount is fair and reasonable.

[F]or five (5) of those eleven (11) weeks, he worked seven (7) days per week for a total of 80.5 hours per week. For three (3) of the eleven (11) weeks, he alleges he worked six (6) days per week for a total of 68 hours per week. For the remaining three (3) of the eleven (11) weeks, he alleges he worked five (5) days per week for a total of 57.5 hours per week.

Doc. No. 38 at 1-2. His overtime claim was calculated by multiplying⁵ weeks by 40.5 hours of overtime per week by 18 (his alleged overtime rate), plus³ weeks of 28 hours of overtime each week multiplied by 18, plus³ weeks multiplied by 17.5 hours of overtime each week multiplied by 18 for a total of $6,102. 6 Plaintiff Guerrero states that he worked for Defendants for six weeks and his pay rate was $13 per hour, and he worked the following hours:

[F]or five (5) of those six (6) weeks, he worked seven (7) days per week from 7:30am until 7:00pm for a total of 80.5 hours per week. For the remaining one (1) week, he alleges he worked seven (7) days from 7:30am until 10:00pm, for a total of 101.5 hours per week.

Doc. No. 38 at 2. His overtime claim was calculated by multiplying⁵ weeks by 40.5 hours of overtime per week by 19.5 (his alleged overtime rate), plus one week of 61.5 hours of overtime multiplied by 19.5 for a total of $5,148. B. Attorney’s Fees and Costs. Under the Agreement, Plaintiffs’ counsel will receive $7,500 in attorney’s fees and costs. Doc. No. 38-1 at 2. The parties represent that attorney’s fees and costs were negotiated separately from Plaintiffs recovery. Doc. No. 38 at 5. The settlement is reasonable on its face, and the parties’ representation adequately establishes that the issue of attorney’s fees and costs was agreed upon separately and without regard to the amount paid to Plaintiffs. See Bonetti, 715 F. Supp. 2d at 1228. Thus, the Agreement is a fair and reasonable settlement of Plaintiffs’ FLSA claims.

IV. CONCLUSION.

Accordingly, it is RECOMMENDED that the Court enter an order as follows: 1. GRANTING the Motion (Doc. No. 38); and

2. DISMISSING the case with prejudice.

NOTICE TO PARTIES

A party has fourteen days from this date to file written objections to the Report and Recommendation’s factual findings and legal conclusions. Failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3-1. If the parties have no objection to this Report and Recommendation, they may promptly file a joint notice of no objection in order to expedite the final disposition of this case. RECOMMENDED in Orlando, Florida, on September 28, 2020.

_ Atay) CLE

GREGORY J. KELLY

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties _7-