United States District Court, E.D. Pennsylvania
SARINA BROWN, APRIL WALKER, and MICHELLE AARON, individually and on behalf of others similarly situated,
PROGRESSIONS BEHAVIORAL HEALTH SERVICES, INC.
MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.
Sarina Brown, April Walker, and Michelle Aaron
(“Plaintiffs” or “Class
Representatives”) have filed an unopposed motion to
approve the settlement in this Fair Labor Standards Act
(“FLSA”) collective action (Doc. 13), and an
unopposed motion for attorneys' fees and reimbursement of
expenses (Doc. 14). For the reasons that follow, I will
certify the collective action and settlement class and
approve the settlement, and grant the motion for
attorneys' fees and expenses.
Class Representatives brought this collective action on
behalf of themselves and other lead clinicians, behavioral
specialist consultants, and/or mobile therapists who worked
for Defendant for at least thirty (30) billable hours in four
(4) or more workweeks from November 17, 2013, until May 8,
2017 (“Class Members”), alleging that Defendant
unlawfully misclassified them as independent contractors,
resulting in the denial of overtime compensation and certain
wages and employee benefits, and failed to pay them for
certain work deemed “non-billable” by Defendant.
See Doc. 13 at 1; Joint Stipulation of Settlement
and Release, Doc. 13-2 Exh. 2 (“Agreement”)
¶¶ 1, 4. Defendant disputes the class allegations
and that it violated applicable wage laws. See
Agreement ¶ 2.
aver that counsel engaged in “vigorous arms-length
negotiations, ” Doc. 13-1 at 20 -- a characterization
that Defendant does not contest. On January 20, 2017, the
parties agreed to stay proceedings and attend mediation in an
effort to resolve the case. Doc. 5. On April 4, 2017, the
parties participated in a full-day mediation with the
Honorable Thomas M. Blewitt (retired) of JAMS, who assisted
the parties in reaching the Agreement.
Agreement provides for a total settlement amount of $865,
000.00, of which approximately $542, 586.00 will be
distributed to Class Members (the “Settlement
Fund”), with the remaining amount sought by counsel for
attorneys' fees representing 33 percent of the settlement
amount ($285, 450.00), plus costs ($3, 714.00),
“service award” payments for each of the Class
Representatives ($10, 000.00 x 3 = $30, 000.00), and Claims
Administrator's expenses ($3, 250.00). Agreement
¶¶ 5, 11-13. The Agreement further provides that
Class Members will receive payment from the Settlement Fund,
on a pro rata basis, based on the degree to which they were
economically impacted by the alleged wage shortfalls.
Id. ¶ 5. Class counsel avers that participating
Class Members may receive amounts ranging from approximately
$500.00 up to a maximum of $70, 000.00, with an average
payout of approximately 10, 000.00. Doc. 13-1 at 4.
Order dated May 8, 2017, I conditionally certified the
collective action and settlement class, preliminarily
approved the Agreement, approved the form of the class notice
and opt-out form, and set a final hearing date of June 28,
2017. See Doc. 12 (“Preliminary Approval
Order”). Pursuant to the Preliminary Approval Order,
class members were informed of the terms of the Agreement,
that they had the right to opt-out of the monetary provisions
and pursue their own remedies, that the deadline for
returning executed claim forms requesting exclusion from the
proposed settlement was 30 days from the date the
exclusion/opt-out forms were mailed, and that they had a
deadline of June 21, 2017, for filing and serving written
notices of intent to appear at the Final Approval Hearing.
Doc. 12 ¶¶ 8-9, 11; Doc. 13-1 at 5; Doc. 13-2 Exh.
4. The Claims Administrator mailed the Class Notice and
Exclusion/Opt-Out Forms to the 55 class members on May 16,
2017, using contact information provided by Defendant.
See Decl. of -Melissa Baldwin (“Baldwin
Decl.”), Doc. 13-1 Exh. 5 ¶¶ 3-5; Doc. 13-2
at 46 (ECF pagination). The Claims Administrator did not
receive any Exclusion/Opt-Out Forms before or after the June
21, 2017 deadline, and did not receive any objections to the
settlement, see Baldwin Decl. ¶¶ 3-5, and
counsel represented to the court that they had had not
received any objections or any notices of intent to appear at
the final approval hearing. As a result, the Final Approval
Hearing was cancelled by Order dated June 26, 2017,
see Doc. 16, and the uncontested motions will be
decided on the pleadings and exhibits attached thereto.
Motion for Certification and Approval of Settlement (Doc.
first move for an order certifying the settlement class,
granting a service award to the Class Representatives, and
approving the settlement agreement. Doc. 13. Class actions
are governed by Federal Rule of Civil Procedure 23, which
requires that a settlement class meet four prerequisites: (1)
the class is so numerous that joinder of all the members is
impracticable, (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the
representative parties are typical of those of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class. Fed.R.Civ.P.
23(a)(1)-(4); In re Comm. Bank of N. Va., 418 F.3d
277, 302 (3d Cir. 2005), rev'd on other grounds,
622 F.3d 275 (3d Cir. 2010); see also Bredbenner v.
Liberty Travel, Civ. Nos. 09-905, 09-1248, 09-4587, 2011
WL 1344745 (D.N.J. Apr. 8, 2011) (applying Rule 23 analysis
in FLSA case). For the following reasons, the motion will be
certification in an FLSA collective action is a two-step
process. During the first or notice stage, the court
“determines whether similarly situated plaintiffs do in
fact exist.” Amadi v. Cardo Windows, Inc., 299
F.R.D. 68, 78 (D.N.J. 2014) (citing Camesi v. Univ. of
Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013);
Zavala v. Wal Mart Stores Inc., 691 F.527, 535 (3d
Cir. 2012)). At the second or final stage of certification,
following notice to prospective Class Members and an
opportunity for them to opt-out or object, the court
“determines whether the plaintiffs who have opted in
are in fact similarly situated to the named
plaintiffs.” Zavala, 691 F.3d at 536 &
the expiration of the initial notice period, the court is now
in a position to assess the class. Of the 55 Class Members,
none opted-out of the settlement, and none objected to the
Agreement. Thus, all of the individuals identified as
potential class members have opted to
completing the certification of the collective action, the
court must determine whether these Plaintiffs are similarly
situated. See Lovett v. ConnectAmerica.com, Civ. No.
14-2596, 2015 WL 5334261, at *2 (E.D. Pa. Sept. 14, 2015)
(citing Singleton v. First Student Mgmt., LLC, Civ.
No. 13-1744, 2014 WL 3865853, at *3 (D.N.J. Aug. 6, 2014)
(certifying collective action for settlement absent specific
argument on issue); Bredbenner, 2011 WL 1344745, at
*17 (granting final notification prior to approving
settlement of FLSA collective action)). The burden is on
Plaintiffs and “the court must consider a number of
factors, including but not limited to: ‘whether the
plaintiffs are employed in the same corporate department,
division and location; whether they advance similar claims;
whether they seek substantially the same form of relief, and
whether they have similar salaries and circumstances of
employment.'” Lovett, 2015 WL 5334261, at
*2 (quoting Keller v. TD Bank, N.A., Civ. No.
12-5054, 2014 WL 5591033, at *8 (E.D. Pa. Nov. 4, 2014;
Zavala, 691 F.3d at 536)).
there has been no supplemental information regarding the
opt-in Plaintiffs, the information provided prior to the
conditional certification of the class directs a finding that
Plaintiffs are similarly situated. Based on the allegations
in the Complaint and those contained in the Agreement, each
of the class members is a lead clinician, behavioral
specialist consultant, and/or mobile therapist who worked for
Defendant for at least thirty (30) billable hours in four (4)
or more workweeks from November 17, 2013, until May 8, 2017.
Agreement ¶¶ 1, 4. As a result, the class members
were all non-exempt, hourly employees of Defendant, and all
were paid the same way and were subject to the same payroll
and time-keeping practices. Not surprisingly, therefore, each
member of the class has virtually identical claims
--specifically, that Defendant misclassified them as
independent contractors and thereby failed to pay them
statutorily-mandated overtime compensation and wages, and
failed to pay them for certain work deemed
“non-billable” by Defendant. Id.
¶¶ 3-5. The Agreement provides Class Members with
payments from the Settlement Fund on a pro rata basis, based
on the degree to which they were economically-impacted by the
alleged wage shortfalls. Id. ¶¶ 5-6. The
Agreement further provides that 60 percent of each settlement
payment will represent alleged lost wages, and 40 percent
will represent alleged liquidated damages and/or alleged
interest. Id. ¶ 6. Plaintiffs aver that the
payments from the Settlement Fund will “represent a
significant recovery of the unpaid wages and overtime
compensation that could reasonably have been proven at
trial.” Doc. 13-1 at 11.
these reasons, I conclude that the Class Members are
similarly situated and will certify the collective action and
the settlement class.