United States District Court, D. South Carolina, Anderson Division
Phillip Morris, individually and on behalf of all others similarly situated, Plaintiff,
Southern Concrete and Construction, Inc., and Kelly Boulware, Defendants. Joshua Ferguson, Plaintiff,
Southern Concrete and Construction, Inc., and Kelly Boulware, Defendants.
ORDER AND OPINION APPROVING SETTLEMENT
C. Coggins, Jr. United States District Court Judge
matter is before the Court on the Parties' joint motion
for approval of settlement (Dkt. No. 92) and an unopposed
motion to approve attorney's fees. (Dkt. No. 93). For the
reasons set forth below, the Court GRANTS these motions,
approves the settlement, and grants Plaintiff's
counsel's motion for attorney's fees and costs.
Phillip Morris filed this action on May 5, 2016, alleging two
violations of the Fair Labor Standards Act
(“FLSA”): (1) that Southern Concrete did not pay
Phillip Morris and similarly-situated employees for travel
time as a passenger when they traveled back to the Anderson
Shop at the end of the work week (“Travel Time
Claim”), and (2) that Southern Concrete did not pay
Phillip Morris and similarly-situated employees for time
allegedly worked in unloading the work truck at the end of
the work week after they returned to the Anderson Shop
(“Unloading Time Claim”).
Southern Concrete is a concrete construction company.
Defendant Kelly Boulware is the President of Southern
Concrete. Southern Concrete performs many concrete jobs on
state roads that are managed by the South Carolina Department
of Transportation. Southern Concrete performs concrete work
throughout the state of South Carolina and sometimes performs
work into North Carolina. It has operations and offices in
Anderson, South Carolina and Charleston, South Carolina.
Defendants allege that the Plaintiffs' travel time was
outside of their regular working hours and were not required
to pay for this time. Defendants also allege that the
agreement it had with employees was that they would be paid
for travel time to the job site but not back home because
they were not required to return to the Anderson Shop.
Defendants deny that any employee unloaded the trucks and
were not compensated for any such work time. Defendants deny
violating the FLSA and deny that Plaintiff is entitled to any
recovery. There are significant issues of law and fact that
would need to be decided if this case were to proceed in
Morris moved to conditionally certify a class on October 19,
2016. The Court granted conditional certification on June 23,
2017. [Dkt. No. 44]. Notices went out to the potential class
members. In response to the notices, 27 individuals joined
the conditional class. Defendants subsequently moved to
dismiss multiple class members for failure to participate in
depositions. This motion was granted on September 4, 2018.
[Dkt. No. 79]. Pursuant to this order, the only remaining
conditional class members are (1) Jamie Golden, (2) Aaron
Fisher, (3) Clyde Kirkland and (4) Chadwick Jones.
April 17, 2019, the Court issued an order consolidating this
case and the case of Ferguson v. Southern Concrete,
8:18-cv-00942-DCC for purposes of settlement (Dkt. No. 91).
Parties subsequently filed a motion to approve settlement and
motion for attorney's fees and costs.
courts are responsible for scrutinizing FLSA settlements for
fairness. See Walton v. United Consumers Club, Inc.,
786 F.2d 303, 306 (7th Cir.1986) ("[T]he Fair Labor
Standards Act is designed to prevent consenting adults from
transacting about minimum wages and overtime pay. Once the
Act makes it impossible to agree on the amount of pay, it is
necessary to ban private settlements of disputes about
pay."); Lynn's Food Stores, Inc. v. United
States ex rel. U.S. Dep't of Labor, Emp't Standards
Admin., Wage & Hour Div., 679 F.2d 1350, 1353 (11th
Cir. 1982). The FLSA's provisions are generally not
subject to waiver, but a district court may approve a
settlement if the settlement reflects a "reasonable
compromise of disputed issues" rather than "a mere
waiver of statutory rights brought about by an employer's
overreaching." Lynn's Food Stores, Inc.,
679 F.2d at 1354.
determine whether to approve the proposed settlement, the
Court must determine (i) whether the award reflects a fair
and reasonable compromise over the issues in dispute, and
(ii) whether the proposed award of attorneys' fees and
costs is reasonable. The Fourth Circuit has not directly
addressed what factors courts should consider when analyzing
proposed FLSA settlements. Courts tend to follow the Eleventh
Circuit's analysis in Lynn's Food Stores. Id.;
Corominas v. ACI Holdings, LLC, No. 2:15-CV-4372-PMD,
2016 U.S. Dist. LEXIS 191850, 2016 WL 10520235, at *2 (D.S.C.
2016); Saman v. LBDP, Inc., Civ. No. 12-1083, 2013
U.S. Dist. LEXIS 83414, 2013 WL 2949047, at *2 (D. Md. 2013).
Under the analysis outlined in Lynn's Food
Stores, the Court must determine whether there is a bona
fide dispute and whether the proposed settlement is fair and
reasonable. Id. Plaintiffs allege Defendants failed
to pay them certain wages in violation of the FLSA, and
Defendants deny those allegations. A bona fide dispute
Court must consider the following factors to assess whether a
settlement is fair and reasonable: "(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 plaintiffs; (5) the opinions of
class counsel and class members after receiving notice of the
settlement whether expressed directly or through failure to
object; and (6) the probability of plaintiffs' success on
the merits and the amount of the settlement in relation to
the potential recovery." Irvine v. Destination Wild
Dunes Mgmt., Inc., 204 F.Supp.3d 846, 849 (D.S.C. 2016)
citing Lomascolo v. Parsons Brinckerhoff, Inc., No.
1:08CV1310(AJT/JFA), 2009 U.S. Dist. LEXIS 89129, 2009 WL
3094955, at*10 (E.D. Va. 2009).
Parties have provided the Court with sufficient facts to
assess the fairness and reasonableness of the settlements.
Defendants have agreed to pay the remaining Plaintiffs more
than the amount they claim they are owed. In addition, the
Settlement provides for an enhancement payment to Morris and
Ferguson as named plaintiffs in their ...