United States District Court, D. Colorado
KAYLEE WILSON, individually and on behalf of similarly situated persons, Plaintiff,
DFL PIZZA, LLC; MINUTEMAN PIZZA, LTD.; TRI-CITY PIZZA, INC.; and PINNACLE PIZZA, INC., Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
action was brought on behalf of delivery drivers at
Defendants' Domino's Pizza stores who were allegedly
under-reimbursed for the automotive expenses they incurred
such that their wages were reduced below the federal minimum
wage. This matter is now before the Court on (1) the Joint
Renewed Motion to Approve Collective Action Settlement with
Memorandum in Support (the “Renewed Motion”) (ECF
No. 64), with incorporates by reference the parties'
previous Motion for Settlement (ECF No. 58) which was denied
without prejudice; and (2) Plaintiffs' Application for
Fees, Costs and Expenses (the “Application”) (ECF
No. 61). These filings seek approval of the
parties' settlement agreement of this action brought
under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq., and an award of attorney's
fees and costs to Plaintiffs' attorneys. Upon
consideration of the Renewed Motion and Application, the
court record, and the applicable rules and case law, and
being otherwise fully advised, the Renewed Motion and
Application are GRANTED.
Plaintiff Kaylee Wilson was a delivery driver at one of
Defendants' Domino's Pizza stores. As relevant here,
Plaintiff Wilson, individually and on behalf of similarly
situated persons, filed this FLSA collective action alleging
Defendants under-reimbursed their delivery drivers for the
automotive expenses they incurred to such an extent that
their unreimbursed business expenses reduced their wages
below the federal minimum wage. Pursuant to the parties'
stipulation, the Court conditionally certified this case as a
collective action to facilitate its potential settlement.
After notice of this action, 215 of Defendants' delivery
drivers, including Plaintiff Wilson, filed opt-in forms.
parties engaged in settlement discussions and reached a
settlement after a full day of mediation with an experienced
employment mediator and subsequent direct negotiations.
Plaintiffs' attorneys disseminated a notice of the
settlement terms to all Plaintiffs, Plaintiffs were afforded
a month to object to the settlement, and no Plaintiff has
objected. Plaintiffs now seek court approval of their
proposed settlement via the Renewed Motion and Application,
providing publicly available, unredacted copies of the
“Settlement and Release Agreement” and
“Supplemental Settlement Agreement and Release.”
Collective Action Settlement
have held that settlements of FLSA actions such as this one
must or may require court approval. Cooper v. OFS 2 Deal 2,
LLC, No. 15-cv-01291-RM-NYW, 2016 WL 1071002, at *2 (D.
Colo. Mar. 17, 2016); Lynn's Food Stores, Inc. v.
United States, 679 F.2d 1350, 1353 (11th Cir. 1982);
Baker v. Vail Resorts Mgmt. Co., No.
13-cv-01649-PAB-CBS, 2014 WL 700096, at *1 (D. Colo. Feb. 24,
2014). Approval may be granted when: (1) the FLSA settlement
is reached as a result of bona fide dispute; (2) the proposed
settlement is fair and equitable to all parties concerned;
and (3) the proposed settlement contains a reasonable award
of attorneys' fees. Cooper, 2016 WL 1071002, at
*2; Lynn's Food Stores, 679 F.2d at 1354;
Baker, 2014 WL 700096, at *1. In addition, the
“Court must determine whether the settlement agreement
undermines the purpose of the FLSA, which is to protect
employees' rights from employers who generally wield
superior bargaining power.” Baker, 2014 WL
700096 at *2. To determine whether the settlement agreement
complies with the FLSA, the court evaluates the following
factors: “(1) the presence of other similarly situated
employees; (2) a likelihood that plaintiffs'
circumstances will recur; and (3) whether defendants had a
history of non-compliance with the FLSA.”
Baker, 2014 WL 700096 at *2 (citing Dees v.
Hydradry, Inc., 706 F.Supp.2d 1227, 1244 (M.D. Fla.
2010)). Finally, before approval of any settlement may be
had, final collective action certification may be required,
as well as notice to opt-in plaintiffs of any settlement and
an opportunity to object. Ostrander v. Customer
Engineering Servs., LLC, No. 15-cv-01476-PAB-MEH, 2018
WL 1152265, at *2 (D. Colo. Mar. 5, 2018).
Attorney's Fees under the FLSA
FLSA requires any judgment to include an award of reasonable
attorney's fees and the costs of the action. 29 U.S.C.
§ 216(b) (“The court in such action shall, in
addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney's fee to be paid
by the defendant, and costs of the action.”). The Court
has discretion to determine the amount and reasonableness of
the fee to be awarded. Davis v. Crilly, 292
F.Supp.3d 1167, 1173 (D. Colo. 2018).
primary methods for determining attorney-fee awards in
common-fund cases are the percentage-of-the-fund method and
the lodestar method. See Chieftain Royalty Co. v.
Enervest Energy Institutional Fund XIII-A, L.P., 888
F.3d 455, 458 (10th Cir. 2017) (discussing fee awards in
class actions). The Tenth Circuit has expressed a preference
for the percentage-of-the-fund approach in common fund cases.
Id. To determine the appropriate percentage, the
Tenth Circuit considers the twelve factors first announced in
Johnson v. Georgia Highway Express, 488 F.2d 714,
717-19 (5th Cir. 1974) (commonly called the Johnson
factors). Those factors are:
the time and labor required, the novelty and difficulty of
the question presented by the case, the skill requisite to
perform the legal service properly, the preclusion of other
employment by the attorneys due to acceptance of the case,
the customary fee, whether the fee is fixed or contingent,
any time limitations imposed by the client or the
circumstances, the amount involved and the results obtained,
the experience, reputation and ability of the attorneys, the
“undesirability” of the case, the nature and
length of the professional relationship with the client, and
awards in similar cases.
Chieftain Royalty, 888 F.3d at 458 (quoting
Gottlieb v. Barry, 43 F.3d 474, 482 n.4 (10th Cir.
1994)). In addition, courts frequently conduct a lodestar
crosscheck to ensure the reasonableness of the percentage
that attorneys seek. 5 W. Rubenstein, Newberg on Class
Actions § 15:85 (5th ed. 2019); Aragon v. Clear
Water Prods. LLC, No. 15-cv-02821-PAB-STV, 2018 WL
6620724, at *7 (D. Colo. Dec. 18, 2018).
The Renewed Motion
Renewed Motion, Plaintiffs rely heavily on Nelson v.
Mountainside Pizza, Inc., No. 16-cv-02825-RM-NRN. Such
reliance was not misplaced due to the substantial
similarities between Nelson and this action. Thus,
for much of the same reasons given in Nelson, the
Court finds approval may be had in this case.
FLSA provides “a private right of action for one or
more employees to bring an action against their employer to
recover unpaid wages or overtime compensation on behalf of
himself or themselves and other employees similarly
situated.” In re Chipotle Mexican Grill, Inc.,
No. 17-1028, 2017 WL 4054144, at *1 (10th Cir. Mar. 27, 2017)
(quotation marks and citation omitted). Under the two-step
“ad hoc” approach, “a court typically makes
an initial notice stage determination of whether plaintiffs
are similarly situated, ” applying a fairly lenient
standard. Thiessen v. Gen. Elec. Capital Corp., 267
F.3d 1095, 1102 (10th Cir. 2001) (quotation marks and
citation omitted). Then, after discovery, the court makes a
second similarly-situated determination, applying a stricter
standard. Thiessen, 267 F.3d at 1102-03. Under that
standard, a court considers “(1) disparate factual and
employment settings of the individual plaintiffs; (2) the
various defenses available to defendant which appear to be
individual to each plaintiff; [and] (3) fairness and
procedural considerations.” Thiessen, 267 F.3d
at 1103 (quotation marks and citation omitted).
request, and Defendants conditionally consent to, a final
collective certification of the collective action members. In
support of their request, Plaintiffs rely on several other
pizza delivery driver cases which have been certified under
Fed.R.Civ.P. 23 or under the FLSA for settlement purposes.
See, e.g., Gassel v. American Pizza Partners, L.P.,
No. 14-cv-00291-PAB-NYW (D. Colo. filed Aug. 24, 2016) (final
certification under FLSA for purposes of collective action
settlement); Bass v. PJCOMN Acq. Corp., No.
09-cv-01616-REB-MEH, 2011 WL 2149602 (D. Colo. June 1, 2011)
(certification under Rule 23). In addition, Plaintiffs
contend the facts which support certification in those cases
support certification in this case as well, e.g., that the
delivery drivers were subject to the same delivery driver
reimbursement policy and were reimbursed similar set amounts
of automobile expenses per delivery. Upon review of
Plaintiffs' contentions, the record, and prior cases
which have found final certification appropriate, the Court
agrees. Accordingly, the Court finds final collective action
certification may be had.