United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, Judge
matter is before the Court for consideration of
Plaintiffs' Motion for Approval of a Fair Labor Standards
Act ("FLSA") Settlement, and Plaintiffs' Motion
for Award of Attorney's Fees and Expenses. On March 4,
2019, the Court held a Settlement Fairness Hearing. ECF No.
257. For the reasons stated below, the Motion for Approval of
FLSA Settlement is GRANTED, and
Plaintiffs' Motion for Approval of Attorney's Fees
and Expenses is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
action is an FLSA case filed pursuant to 29 U.S.C. §
216(b) to recover compensatory and liquidated damages,
attorney fees, and other relief. Plaintiffs assert that
Defendants violated the FLSA and bring this case on behalf of
themselves and all other employees similarly situated.
December 13, 2018, both parties participated in a mediation
in Norfolk, VA with retired Judge F. Bradford Stillman. After
an all-day mediation, the parties were able to come to a
settlement agreement that resolves the disputed issues before
this Court as well as the disputed issues before the District
Court of South Carolina. See ECF No. 250-1. On
January 9, 2019, the parties filed a Joint Notice of
Settlement before the Court. ECF No. 243. On February 4,
2019, Plaintiffs filed the instant Motion for Settlement
Approval and a Motion for Attorney's Fees and Expenses.
ECF Nos. 249, 251. On March 4, 2019, the Court held a
Fairness Hearing for Settlement Approval. ECF No. 257.
settlement agreement and dismissal of FLSA action requires
court approval after the Court has reviewed the settlement
for fairness and reasonableness. 29 U.S.C. § 216(b);
Taylor v. Progress Energy, Inc., 493 F.3d 454, 460
(4th Cir. 2007); Lynn's Food Stores, Inc. v. U.S. By
& Through U.S. Dep't of Labor, Employment Standards
Admin., Wage & Hour Div., 679 F.2d 1350, 1353 (11th
Cir. 1982); Baker v. Dolgencorp, Inc., 818 F.Supp.2d
940, 941 (E.D. Va. 2011). There is a "strong presumption
in favor of finding a settlement fair" that the court
should keep in mind in when determining whether a settlement
is fair, adequate and reasonable. LaFleur v. Dollar Tree
Stores, Inc., 189 F.Supp.3d 588, 593 (E.D. Va. 2016).
evaluating a FLSA settlement agreement, the Court must
determine three things: (1) that the FLSA issues are actually
in dispute; (2) that the settlement is a reasonable
compromise over the issues; and (3) if there is a clause on
attorneys' fees then the award must reasonable and
independently assessed. See Silva v. Miller, 307
Fed.Appx. 349, 351 (11th Cir.2009) (citations omitted).
Generally, "where there is an 'assurance of an
adversarial context' and the employee is 'represented
by an attorney who can protect [his] rights under the
statute,' the settlement will be approved. Duprey v.
Scotts Co. L.L.C., 30 F.Supp.3d 404, 408 (D. Md. 2014)
(quoting Lynn's Food Stores, 679 F.3d at 1354).
the first prong, "courts examine the pleadings in the
case, along with the representations and recitals in the
proposed settlement agreement." Id. The Court
must find that the employees seek to enforce their FLSA
rights and that the parties demonstrate an actual
disagreement as to the factual allegations that undergird the
action. See Lynn's Food Stores, 679 F.2d. at
the reasonable compromise factor, courts weigh a number of
(1) the extent of discovery that has taken place;
(2) the stage of the proceedings, including the complexity,
expense and likely duration of the litigation;
(3) the absence of fraud or collusion in the settlement;
(4) the experience of counsel who have represented the
(5) the probability of plaintiffs' success on the
merits[;] and [(6)] the amount of the settlement in relation
to the potential recovery.
LaFleur, 189 F.Supp.3d at 593 (citing Flinn v.
FMC Corp., 528 F.2d 1169, 1173 (4th Cir. 1975)).
while the FLSA requires the defendant to pay plaintiffs
attorneys' fees if the plaintiff is successful, 29 U.S.C.
§ 216(b), a settlement means that judgment is not
entered in favor of either party, so attorneys' fees are
not required. Dees v. Hydradry, Inc., 706 F.Supp.2d
1227, 1243 (M.D. Fla. 2010). However, if the settlement
agreement does consider awarding attorneys' fees, the
Court must still determine if the attorneys' fees are
reasonable and that they were "independently assessed,
regardless of whether there is any suggestion that a conflict
of interest taints the amount the wronged employee recovers
under a settlement agreement." Id.
determining the fairness and reasonableness of a FLSA
settlement agreement, the Court may confirm the agreement,
preliminarily grant the agreement but order parties to strike
portions that it deems unfair or unreasonable, or deny the
agreement if there are too many issues with the agreement.
See, e.g., Lomascolo, 2009 WL 9094955, at *l
(granting settlement approval); Stephens v. MAC Bus.
Sols., Inc., No. 15-3057, 2016 WL 3977473, at *3 (D. Md.
July 25, 2016) (approving settlement but ordering parties to
submit a new agreement that removes the unreasonable