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Acevedo v. BrightView Landscapes, LLC

United States District Court, M.D. Pennsylvania

March 21, 2017

JONATHAN AMADOR ACEVEDO, MITCHELL BRATTON, JEREMY BUSSE, STEPHEN PULLUM, ERIC MIGDOL, and JOSE GONZALEZ, individually and on behalf of all other similarly situated, Plaintiffs,
BrightView Landscapes, LLC, f/k/a/ THE BRICKMAN GROUP LTD. LLC, Defendant.


          MALACHY E. MANNION United States District Judge.

         Currently before the court is the plaintiffs' amended, unopposed motion for preliminary approval of the parties' settlement agreement. (Doc. 118). Having reviewed and considered the motion, the memorandum in support of the motion, the parties' amended settlement agreement, the proposed notice for class settlement, and pertinent portions of the entire record in this litigation to date, the plaintiffs' motion is GRANTED and the court will preliminarily approve the parties' amended settlement agreement. The court will also preliminarily certify the State Settlement Class named in the parties' amended agreement. The plaintiffs' original, unopposed motion for preliminary approval of the original settlement agreement, (Doc. 104), and the parties joint motion for a hearing to discuss changes to the original agreement, (Doc. 115), are DENIED as moot.


         On October 8, 2013, named plaintiff, Jonathan Amador Acevedo (“Amador”), filed a putative, class action complaint, (Doc. 1), against the defendant, The Brickman Group Ltd. LLC (“Brickman”), [1] a national landscaping and snow removal company, alleging that, between October 8, 2010 and June 8, 2014, the defendant had a policy and practice of failing to pay its employees who were paid on a fluctuating work week basis all overtime compensation, in violation of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. (“FLSA”), and Pennsylvania state wage and hour laws. Amador, on behalf of himself and all other similarly situated plaintiffs, sought all unpaid overtime wages, plus liquidated and/or punitive damages, an injunction requiring the defendant to cease unlawful practices under the state law claims, and reasonable attorneys' fees and costs. On December 20, 2013, with permission from the court, the defendant filed an answer to the complaint beyond the deadline to answer. (Doc. 21). The defendant denied all allegations and asserted that Amador was properly paid under the FLSA.

         On February 7, 2014, the parties filed a joint motion to stay discovery, to conditionally certify the FLSA claims as a collective action (the “Collective Group”) under Section 16(b) of the FLSA, 29 U.S.C. § 216(b), to order notice of the action, and to permit mediation. (Doc. 33). On February 14, 2014, the court granted the joint motion and conditionally certified the FLSA claims in the action, the Collective Group. (Doc. 35). The Collective Group was defined as:

All current and former employees in the United States who have worked for The Brickman Group and who, at any time between October 8, 2010 and the present, were paid a salary, but only received “fluctuating workweek”-type half-time overtime pay for hours worked over 40 hours in a workweek (meaning at a rate that decreased with each overtime hour worked, rather than at time-and-a-half their hourly rate), including but not limited to salaried landscape/crew/irrigation Supervisors and those in similarly titled positions.

         Notice, with an opt-in consent form, was then sent to 1, 360 Collective Group members. Ultimately, 417 Collective Group members filed opt-in consent forms, though not all of these forms were sent in by the agreed upon deadline.

         Meanwhile, in an effort to reach settlement, counsel for the parties exchanged information and engaged in numerous discussions to address several issues involving class certification, the merits of the claims in the complaint, and the possibility of a class settlement. The parties also participated three full-day sessions of mediation in Philadelphia, Atlanta, and Los Angeles between July 2014 and February 2015 with the Honorable Joel B. Rosen (Ret.), retired Magistrate Judge for the United States District Court of the District of New Jersey, and Hunter Hughes, Esq. During this settlement process, counsel for the plaintiff uncovered potential violations of wage laws in various other states and identified five more named plaintiffs that could be joined in the action, Mitchell Bratton, Jeremy Busse, Stephen Pullum, Eric Migdol, and Jose Gonzalez.

         The parties ultimately reached a settlement. On May 29, 2015, with the concurrence of the defendant, the plaintiffs filed an amended complaint asserting the additional state law claims and including the additional named plaintiffs as class representatives of a putative state law class.[2] (Doc. 103). On the same day, the plaintiffs filed an unopposed motion to preliminarily approve the settlement agreement, with the settlement agreement attached.

         On December 11, 2015, the court held a telephone conference with counsel for the parties to discuss several areas of concern regarding the settlement agreement and subsequently ordered the parties to submit letter briefs regarding these areas of concern. (Doc. 110). On July 6, 2016, the parties submitted an amended settlement agreement redlining proposed changes to the original agreement. (Doc. 114).

         On November 21, 2016, the court held another telephonic conference with the parties to discuss their proposed changes and lingering areas of concern regarding the amended agreement. At the end of that conference, the court directed the parties to file a formal, amended motion for preliminary approval of the settlement agreement after discussing and addressing the court's remaining issues with the agreement. On February 13, 2017, the plaintiffs filed the current amended motion, attaching their amended settlement agreement to the motion. (Doc. 118).


         The terms of the amended settlement agreement are attached to the current, amended motion as Exhibit 1. (Doc. 118-3). The amended agreement includes the original FLSA Collective Group that was preliminarily certified as a class and also includes a State Settlement Class. The Collective Group is defined exactly as it was for preliminary certification purposes. The “State Settlement Class, ” as provided in the amended agreement, is defined as follows:

[A]ll individuals in Groups 1 and 2 (who worked in the states of Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, Wisconsin) unless removed from the State Settlement Class by either (i) timely opting-out of the Settlement, (ii) being identified by the Claims Administrator as having his/her Notice of Settlement returned as undeliverable (and not subsequently delivered prior to the Claim Deadline following the Settlement Administrator's reasonable efforts as outlined in Paragraph 20(b)(4)), or (iii) for Group 2 members only, Defendant's decision to nullify this Settlement Agreement as to Group 2 members as set forth in Paragraph 44.

(Id. ¶18(bb)). The proposed State Settlement Class takes into account the added claims in the plaintiffs' amended complaint and must be, at a minimum, preliminarily certified before proceeding with the settlement.

         A. Settlement Groups and Distribution

         The settlement divides all putative plaintiffs and named plaintiffs from the above two classes into two groups, Group 1 and Group 2. Group 1 includes all FLSA Collective Group members who filed an opt-in form, including all named plaintiffs, and all Collective Group members who worked in Pennsylvania, regardless of their opt-in status. Group 1 consists of approximately 476 individuals. Group 2 includes all remaining Collective Group members who did not file an opt-in form and who did not work in Pennsylvania. Group 2 is, essentially, a catch-all for all of those putative plaintiffs in the Collective Group who did not file an opt-in form, other than those who worked in Pennsylvania. Group 2 consists of approximately 839 individuals.

         Settlement treatment per the parties' agreement depends on inclusion within a certain group. Group 1 members are guaranteed a minimum payment without further action and will be excluded only if the member submits a timely request for exclusion, thereby opting-out of the settlement. The defendant has agreed to pay a maximum of $3.25 million for Group 1 claims. After deducting class counsel attorneys' fees and costs, administrator fees and costs, and service awards, each Group 1 member is initially entitled to $150.00 as an award. After this initial set-aside award, the settlement administrator will determine how to distribute the remaining funds to Group 1 members by using a formulation that creates a per dollar share, taking into account the members' actual overtime pay during weeks the member was eligible to receive “fluctuating workweek”-type half-time overtime pay for hours worked over forty in a work week. This calculation will be based on the defendant's payroll and timekeeping data. The remaining funds will then be divided pro rata among Group 1 members based on their per dollar share figure.

         The defendant has agreed to pay a maximum of $3.7 million for Group 2 claims. However, the defendant's actual gross payment for Group 2 claims will be based on the percentage of Group 2 members who timely submit a claim form-i.e., if 30% of individuals in Group 2 opt in, then only 30% of the Group 2 maximum fund, or $1.11 million, would be the gross fund from which a portion would be going to Group 2 members. The net fund would be determined after deducting attorneys' fees and costs, administrator fees and costs, and service awards.

         Only Group 2 members who timely submit a claim form will be eligible to receive a settlement payment. Like Group 1 members, however, eligible Group 2 members will receive a minimum $150.00 set aside from the Group 2 net fund. The settlement administrator will then determine a per dollar share figure for eligible Group 2 members, which will be based on the defendant's previously produced payroll and timekeeping data. The settlement administrator will distribute the remaining funds pro rata based on the net amount in the Group 2 fund and each Group 2 member's per dollar share figure.

         Also unlike the Group 1 settlement, the Group 2 settlement is subject to the defendant's unilateral option to void the agreement if more than thirty-one percent of Group 2 members become eligible to receive a payment. Paragraph forty-four of the parties agreement provides as follows:

In the event the Group 2 Calculated Gross Settlement Fund (“the Gross Fund Total”) exceeds one million one hundred and fifty thousand dollars ($1, 150, 000.00), [3] Defendant shall have the unilateral right to void this Settlement Agreement as to Group 2 members if it provides written notice of its intent to void as to Group 2 members to Class Counsel . . . . If the right to void is exercised in accord with the terms of this paragraph, all portions of the Settlement Agreement shall apply only to Group 1 members.

(Doc. 118-3, ΒΆ44). The void provision, by its express terms, does not effect Group 1 members. The defendant's decision to void the agreement is optional, not mandatory. It also ...

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