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Brown v. Progressions Behavioral Health Services, Inc.

United States District Court, E.D. Pennsylvania

July 13, 2017

SARINA BROWN, APRIL WALKER, and MICHELLE AARON, individually and on behalf of others similarly situated,


          ELIZABETH T. HEY, U.S.M.J.

         Plaintiffs 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.


         The 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.

         Plaintiffs 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.

         The 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).[1] 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.

         By 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.


         A. Motion for Certification and Approval of Settlement (Doc. 13)

         Plaintiffs 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 granted.

         1. Certification

         Class 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 & n.4.

         With the expiration of the initial notice period, the court is now in a position to assess the class.[2] 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 participate.[3]

         In completing the certification of the collective action, the court must determine whether these Plaintiffs are similarly situated. See Lovett v., 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)).

         Although 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.

         For these reasons, I conclude that the Class Members are similarly situated[4] and will certify the collective action and the settlement class.

         3. FL ...

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