United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
in this action, who worked at several restaurants operated by
Defendants in Virginia, Maryland, and the District of
Columbia, bring claims under the Fair Labor Standards Act
(FLSA) and District of Columbia and Maryland law, alleging
Defendants failed to comply with federal and state
minimum-wage, overtime-pay, and sick-leave requirements. The
parties have reached a potential settlement agreement
resolving all claims, and they now seek preliminary approval
of that agreement from the Court. As such, before the Court
is Plaintiffs' Consent Motion for Certification of the
Rule 23 Class Action for Settlement Purposes, Approval of
Notices, and Preliminary Approval of the Settlement
Agreement. ECF No. 56. For the reasons explained below, the
motion will be granted.
Factual and Procedural History
Restaurant Group and co-owners Daniel Simon and Michael
Vucurevich (collectively, “Defendants”) operate
five restaurants in Virginia, Maryland, and the District of
Columbia. ECF No. 5 (“Am. Compl.”) ¶¶
8-9. On June 7, 2017, six then-current and former employees
of Defendants commenced this action, alleging Defendants
violated various federal and state labor laws.
Plaintiffs' complaint, as amended, brings claims under
the FLSA, the District of Columbia Minimum Wage Act (DCMWA),
D.C. Code § 32-1001 et seq., the District of Columbia
Sick Leave Act (DCSLA), Id. § 32-131, the
Maryland Wage and Hour Law (MWHL), Md. Code Ann., Lab. &
Empl. § 3-401 et seq., and the Maryland Wage Payment and
Collection Law (MWPCL), Id. § 3-501 et seq. See
Am. Compl. ¶¶ 45-101.
31, 2017, Plaintiffs filed a motion seeking conditional
certification of a collective action for their FLSA, DCMWA,
and DCSLA claims. ECF No. 13. Defendants opposed
certification, ECF No. 22, and they also filed a motion for
partial judgment on the pleadings, ECF No. 23. The Court
granted Plaintiffs' motion on January 31, 2018,
conditionally certifying Plaintiffs' proposed collective
action and establishing three subclasses for District of
Columbia, Maryland, and Virginia employees. See Stephens
v. Farmers Rest. Grp., 291 F.Supp.3d 95 (D.D.C. 2018).
Upon the Court's approval, Plaintiffs' counsel sent
putative members of the collective action a notice of
lawsuit, see ECF Nos. 34, 35, advising those individuals that
they must provide written consent or “opt in” to
the collective action, no later than April 28, 2018, in order
to participate as a member of the collective action.
According to Plaintiffs' counsel, a total of 119
individuals opted in to the collective action. See ECF No.
56-5 (“Elkin Decl.”) ¶ 13.
March 9, 2018, Plaintiffs sought certification of two classes
covering their District of Columbia and Maryland state-law
claims pursuant to Federal Rule of Civil Procedure 23. See
ECF No. 36. During the course of discovery, however, the
parties decided to enter mediation. Elkin Decl. ¶ 15.
And on May 21, 2018, the Court referred the matter to the
Court's mediation program. On July 24, 2018, the parties
submitted a joint status report indicating that they had
reached a potential settlement agreement and that they
intended to submit that agreement to the Court for
preliminary approval. ECF No. 55. Accordingly, the Court
denied Plaintiffs' motion for class certification and
Defendants' motion for partial judgment on the pleadings
without prejudice in anticipation of the parties' request
for preliminary approval of their proposed settlement.
August 21, 2018, Plaintiffs filed the instant consent motion.
ECF No. 56. The motion requests that the Court (1) certify
the proposed Rule 23 classes for settlement purposes; (2)
preliminarily approve the proposed settlement agreement; (3)
approve the proposed notices to class members of the
settlement; (4) approve their proposed class representatives;
(5) appoint Rust Consulting as the administrator of the
settlement; and (6) appoint Molly Elkin, counsel for
Plaintiffs, as class counsel. Id.
November 6, 2018, the Court ordered supplemental briefing
from the parties. See ECF No. 58. Specifically, the Court
asked the parties to address whether the proposed class
representatives adequately represented the absent Rule 23
class members during the settlement discussions, whether the
proposed settlement sum and distribution of that sum reflect
a fair resolution of Plaintiffs' claims against
Defendants, and whether, as the settlement agreement
contemplates, the absent Rule 23 class members who had not
affirmatively opted in to the collective action can
nonetheless be required to waive their FLSA claims if they do
not affirmatively opt out of the Rule 23 settlement. The
parties submitted their joint response addressing those
questions on December 3, 2018. ECF No. 59 (“Supp.
parties have submitted a proposed settlement agreement, ECF
No. 56-2 (“Agreement”), the pertinent terms of
which are summarized below.
putative Rule 23 settlement classes, under Maryland and
District of Columbia law, respectively, will consist of 862
current and former servers who worked in one of
Defendants' restaurants in either Maryland or the
District of Columbia between June 7, 2014, and July 20, 2018.
Agreement ¶ 1.2. The classes will also include those 119
individuals who have already opted in to the collective
action, with the exception of those individuals who only
worked in Defendants' Virginia locations. Id.
five business days of certification of the Rule 23 classes
and preliminary approval of the Agreement, a notice will be
sent to all 862 putative class members describing the terms
of the Agreement and their various rights and obligations.
Id. ¶ 5.1; ECF No. 59-5 (“Am. R. 23
Notice”). Putative Rule 23 class members will have 45
days from the date the notices are mailed to opt out of the
class action settlement. Agreement ¶ 5.3. A separate
notice of settlement will be sent to those 119 individuals
who opted in to the collective action. Id. ¶
5.1; ECF No. 56-3 (“FLSA Notice”).
have agreed to deposit a total of $1, 490, 000 in a
settlement fund to be distributed as described herein.
Agreement ¶ 9.3. Class counsel will receive an award of
$388, 484 in attorney's fees and $8, 516 for litigation
expenses, and the settlement administrator will be paid in an
amount not to exceed $35, 000 for its services. Agreement
¶¶ 10.3, 10.4. Each of the seven named plaintiffs,
as representatives of the collective action and Rule 23
classes, will receive a service award of $5, 000.
Id. ¶ 10.5. The 119 individuals who opted in to
the collective action will receive a total of $498, 715, to
be distributed to each individual based on the total number
of weeks that he or she worked as a server during the
applicable time period. Id. ¶¶ 10.6-.7.
The remaining $524, 285 will be allocated to the 862 putative
Rule 23 class members and distributed to each individual who
timely submits a claim form. Id. ¶¶ 10.6,
10.8. No individual who opted in to the collective action
will recover from this amount. Id. ¶ 1.2. And
any unclaimed portion of the amount allocated to the Rule 23
class members will revert to Defendants. Id. ¶
preliminary approval of the settlement, and in accordance
with Federal Rule of Civil Procedure 23(e)(2), the Court will
conduct a fairness hearing to determine whether to finally
approve the settlement agreement. Members of the collective
action or the Rule 23 classes may submit written objections
to the proposed settlement and present objections orally at
the hearing. Id. ¶¶ 7.1, 7.2.
to preliminarily approve a proposed class action settlement
lies within the sound discretion of the district court.
See Richardson v. L 'Oréal USA, Inc., 951
F.Supp.2d 104, 106 (D.D.C. 2013). When the parties are
“seeking class certification and settlement at the same
time, however, ” the agreement requires
“‘closer judicial scrutiny' than settlements
that are reached after class certification.”
Trombley v. Nat 'l City Bank, 759
F.Supp.2d 20, 23 (D.D.C. 2011) (quoting Manual for Complex
Litigation (Fourth) § 21.612 (2004)). Courts “will
generally grant preliminary approval of a class action
settlement if it appears to fall ‘within the range of
possible approval' and ‘does not disclose grounds
to doubt its fairness or other obvious
deficiencies.'” Richardson, 951 F.Supp.2d
at 106 (quoting Trombley, 759 F.Supp.2d at 23).
Court's analysis will proceed in three parts. First, the
Court will determine whether to provisionally certify the
proposed Rule 23 classes for settlement purposes. Second, the
Court will address whether to preliminarily approve the
proposed settlement agreement. Third, the Court will outline
further proceedings, including the distribution of notices
and the scheduling of a fairness hearing.
Provisional Class Certification
seeking class certification must demonstrate that they meet
the prerequisites of Rule 23(a) and fall within one of the
categories described in Rule 23(b). See Amchem Products,
Inc. v. Windsor, 521 U.S. 591, 613-14 (1997).
“Rule 23(a) states four threshold requirements
applicable to all class actions: (1) numerosity (a
‘class [so large] that joinder of all members is
impracticable'); (2) commonality (‘questions of law
or fact common to the class'); (3) typicality (named
parties' claims or defenses ‘are typical . . . of
the class'); and (4) adequacy of representation
(representatives ‘will fairly and adequately protect
the interests of the class').” Id. at 613
(alteration in original) (quoting Fed.R.Civ.P. 23(a)). And
under Rule 23(b)(3), by which the parties seek certification,
“they must demonstrate (1) predominance of common
questions of law and fact to the entire class, and (2)
superiority of the class action method to other methods of
adjudication for the controversy.” Trombley, 826
F.Supp.2d at 193.
in this District have generally found that the numerosity
requirement is satisfied and that joinder is impracticable
where a proposed class has at least forty members.”
Cohen v. Warner Chilcott Pub. Ltd. Co., 522
F.Supp.2d 105, 114 (D.D.C. 2007). The parties represent that
there are 962 Rule 23 class members, including the 119 who
have opted in to the collective action and who worked in
either Maryland or the District of Columbia, with 272
individuals in the Maryland class and 690 individuals in the
District of Columbia class. See ECF No. 56-1
(“Memo.”) at 25; Agreement, Exs. 1, 2. The Court
therefore has no trouble concluding that the proposed classes
satisfy the numerosity requirement.
establish commonality under Rule 23(a)(2), a plaintiff must
identify at least one question common to all members of the
class.” Garcia v. Johanns,444 F.3d 625, 631
(D.C. Cir. 2006). “Indeed, factual variations among the
class members will not defeat the commonality requirement, so
long as a single aspect or feature of the claim is common to
all proposed class members.” Bynum v. District of
Columbia,214 F.R.D. 27, 33 (D.D.C. 2003). As the
parties note, “all of the putative class members in
both Rule 23 classes are or were Servers who, according to
Plaintiffs, were subject to the same work policies and
practices” underlying this lawsuit. Memo. at 26.
Namely, according to Plaintiffs, class members “had the
same job duties and responsibilities, had to buy clothing
that the Servers assert were uniforms, had to buy
‘tools of the trade,' were required to engage in
side work, were mandated to contribute to tip pools that they
say were invalid, had to perform pre-shift work while off the
clock, were subject to the same pay and time keeping