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Morris v. Southern Concrete And Construction Inc.

United States District Court, D. South Carolina, Anderson Division

May 13, 2019

Phillip Morris, individually and on behalf of all others similarly situated, Plaintiff,
v.
Southern Concrete and Construction, Inc., and Kelly Boulware, Defendants. Joshua Ferguson, Plaintiff,
v.
Southern Concrete and Construction, Inc., and Kelly Boulware, Defendants.

          ORDER AND OPINION APPROVING SETTLEMENT

          Donald C. Coggins, Jr. United States District Court Judge

         This 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.

         I. BACKGROUND

         Plaintiff 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”).

         Defendant 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 litigation.

         Phillip 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.

         On 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).

         The Parties subsequently filed a motion to approve settlement and motion for attorney's fees and costs.

         II. LEGAL STANDARD

         Federal 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.

         III. DISCUSSION

         To 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 exists.

         This 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).

         The 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 ...


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