United States District Court, W.D. Louisiana
REBECCA F. DOHERTY JUDGE.
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
the Court on referral from the District Judge is a Joint
Motion for Settlement Approval and to Dismiss [Rec. Doc. 53]
following a settlement in this case which has been
conditionally certified as a collective action under Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201,
et seq. Under the proposed Settlement Agreement, Plaintiffs
Kristain Areana Vedol and Beverly Salter, and all the opt-in
Plaintiffs, will receive a pro rata share in back pay
equivalent to a certain percentage of the back pay in
dispute, described in detail in the Settlement Agreement and
Release. As described in the Settlement Agreement
and Release, Kristain Areana Vedol will be paid a fee for her
efforts in prosecuting this case out of the Gross Settlement
Amount and Attorney Kenneth D. St. Pe' will be paid
Attorney's fees in the percentage stated out of the Gross
Settlement Amount. The action will be dismissed with
prejudice and except as provided in the proposed settlement
agreement, each party will bear its own attorney's fees
and costs. For the following reasons, it is recommended that
the Joint Motion for Settlement Approval and to Dismiss the
Collective Action With Prejudice [Rec. Doc. 53] be GRANTED.
is a home health services provider who employed Plaintiffs at
various times as home health workers, also known as Direct
Service Workers (DSWs). Generally, DSWs work with individuals
with special needs to provide services and assistance with
daily living. R. 53. For years, persons performing
the duties of a DSW were considered exempt from the overtime
requirements of the FLSA. An amendment to the Home Healthcare
Exemption to the FLSA in January 1, 2015 arguably changed
that exemption. Id.
Kristain Areana Vedol [“Vedol”] and Plaintiff
Beverly Salter [“Salter”] held the DSW position
from April 2015 to October 28, 2015, and from October 1, 2009
to present, respectively. Vedol, individually and on behalf
of others similarly situated, filed a collective action on
November 11, 2015 in this Court, alleging violations of the
FLSA. She specifically alleged that Defendant improperly
classified her and others similarly situated as exempt
employees who were not required overtime compensation
pursuant to the FLSA. R. 1. This Court conditionally
certified the class pursuant to 29 USC § 216(b) on
August 29, 2016. R. 15. The conditionally certified
class consisted of all current and former DSWs who were
classified as exempt at any time between January 1, 2015 and
November 8, 2015. R. 53.
March 22, 2016, Plaintiff, Beverly Salter filed a FLSA
Collective Action and Rule 23 Class Action against Leading
Health Care of LA, Inc. in the 14th Judicial District Court,
Parish of Calcasieu, State of Louisiana, alleging FLSA and
various state law claims. Salter's claim was removed to
Federal Court on April 11, 2016. On June 13, 2016, this
Court, dismissed the state law claims and the Rule 23 Class
Action, leaving only the FLSA Collective Action. On December
12, 2016, the Vedol and Salter cases were consolidated.
R. 39. On August 4, 2017, the parties filed a Joint
Motion for Settlement Approval and to Dismiss [Rec. Doc. 53]
following a settlement in this case.
this case has been conditionally certified as a collective
action under the FLSA, this Court must approve the settlement
before it may be finalized. Legros v. Mud Control Equip.,
Co., No. CV 15-1082, 2017 WL 925730, at 1 (W.D. La. Mar.
6, 2017) (citing Rivas v. Beaucoup Crawfish of Eunice,
Inc., 2014 WL 5488390, *2 (W.D. La. 2014), Brooklyn
Sav. Bank v. Oneil, 324 U.S. 697 (1945); Camp v.
Progressive Corp., 2004 WL 2149079 (E.D. La. 2004); and
Liger v. New Orleans Hornets NBA Limited
Partnership. 2009 WL 2856246 (E.D. La. 2009)). Before
the Court may approve a settlement in a collective action
brought under the FLSA, it must first determine whether the
settlement involves the resolution of a bona fide
dispute over an FLSA provision and then decide whether the
settlement is fair and reasonable. Id. (citing
Camp at 4); see also Lynn's Food Stores,
Inc. v. United States, 679 F.2d 1350, 1352-55 (11th Cir.
1982), Jarrad v. Southern Shipbldg. Corp., 163 F.2d
960 (5th Cir. 1947); and Stalnaker v. Novar Corp.,
293 F.Supp.2d 1260, 1263 (M.D. Ala. 2003).
instant case, the Parties vigorously dispute (1) whether
Plaintiffs were properly classified as exempt employees, (2)
whether Plaintiffs were entitled to statutorily mandated
overtime and (3) whether Vedol and Salter and any opt-in
Plaintiffs are “similarly situated” under the
applicable law. Thus, the Court finds the instant action
presents a bona fide dispute over FLSA provisions
because these issues are sufficient for this Court to find
"that genuine uncertainty as to the outcome
existed" for each side. Id. at 2.
determining whether a settlement is fair, adequate and
reasonable, the Court should consider the following six
factors: (1) the existence of fraud or 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
plaintiffs' success on the merits; (5) the range of
possible recovery; and (6) the opinions of the class counsel,
class representatives, and absent class members. Id.
citing Reed v. General Motors Corp., 703 F.2d 170, 172
(5th Cir. 1983) citing Parker v.
Anderson, 667 F.2d 1204, 1209 (5th Cir.
1982). When considering these factors, the court should keep
in mind the “strong presumption” in favor of
finding a settlement fair. Id.
Court will address each of the Six Factors in turn:
(1) The Existence of Fraud or Collusion Behind the Settlement
- The parties have represented to the Court that there is no
fraud or collusion behind the settlement. R. 53, p.
6. In addition, this Court may presume that no fraud or
collusion occurred between counsel, in the absence of any
evidence to the contrary. Camp, 2004 WL 2149079 at 7
citing 4 Newberg on Class Actions § 11.51 (4th
ed.); Liger, 2009 WL 2856246 at 3. Moreover, since
this case was filed in 2015, counsel for the parties have
vigorously represented and advanced the position of their
clients, engaging in sufficient informal discovery and ample
investigation, and competently addressing the issues
presented in this litigation. Furthermore, given the
Court's active role in overseeing this litigation and the
attendance by the parties at court ordered conferences on
April 25, 2017 and July 31, 2017, which culminated in the
proposed Settlement Agreement, it is clear that the
settlement has been arrived at by arms-length bargaining and
good faith negotiations. Thus, the first factor favors
approval of the settlement as fair, adequate and reasonable.
(2) The Complexity, Expense, and Likely Duration of the
Litigation - This FLSA action presented multiple complex
legal issues which have been vigorously litigated by
experienced counsel, at significant expense. Had a settlement
not been consummated, the Court is of the opinion that this
case would likely have remained in litigation for a
significant amount of time, causing the parties to incur
significant additional expense. The parties and the Court
recognize the expense of bringing and defending against a
motion for decertification, and the expense and length and of
trial and appeals, which could take several years.
Accordingly, the second factor weighs heavily in favor of
finding that the settlement is fair, adequate and reasonable.
(3) The Stage of the Proceedings and the Amount of Discovery
Completed -This case has been pending nearly two years.
During its pendency, the parties have conducted informal
discovery, and independent investigations of fact and law
throughout this action. Further, counsel for Plaintiffs and
Defendant have analyzed the applicable law as applied to the
facts discovered regarding Plaintiffs' allegations,
Defendant's defenses thereto, and the damages claimed by
Plaintiffs. The agreement to settle did not occur until the
Parties had engaged in such activities. Counsel for the