Baudin v. Res. Mktg. Corp.

JERRY BAUDIN, individually and on behalf of all other similarly situated individuals;JOSEPHINE DUFFNEY, individually and on behalf of all other similarly situated individuals;and KARISHMA PERSAUD, individually and on behalf of all other similarly situated individuals, Plaintiffs, v. RESOURCE MARKETING CORP., LLC, Defendant.

1:19-cv-386 (MAD/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 13, 2020

APPEARANCES:

BROWN, LLC

111 Townsquare Place

Ste. 400

Jersey City, New Jersey 07310

Attorneys for Plaintiffs

SOMMERS SCHWARTZ, P.C.

One Towne Square, Suite 1700

Southfield, Michigan 48076

Attorneys for Plaintiffs

JACKSON LEWIS, P.C.

677 Broadway, 9th Floor

Albany, New York 12207

Attorneys for Defendant

OF COUNSEL:

JASON T. BROWN, ESQ.

KEVIN J. STOOPS, ESQ.

ROD JOHNSTON, ESQ.

VINCENT E. POLSINELLI, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On April 1, 2019, Plaintiffs filed a collective and class action complaint against Defendant alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the New York State Labor Law, breach of contract, and unjust enrichment, based on Defendant's failure to pay overtime wages. See Dkt. No. 1. On January 29, 2020, the Court preliminarily approved the parties' proposed settlement, directing that notice be mailed to Class Members, and setting the date for the final fairness hearing. See Dkt. No. 42.

On July 16, 2020, Plaintiffs filed their motions to certify class settlement and for attorneys' fees and costs. See Dkt. Nos. 47 & 48. On July 27, 2020, the Court held a final approval hearing, during which it signaled its intent to approve of the settlement and requested fees and that a written decision would follow.

As set forth below, the Court hereby grants Plaintiffs' unopposed motions for final approval of class settlement and for attorneys' fees and costs.

II. BACKGROUND

A. Factual Allegations

Plaintiffs and Class Members are 497 current and former account representatives and transfer agents ("Agents") who worked for Defendant at any time between April 1, 2016 through November 7, 2019. Plaintiffs alleged that Defendant violated the FLSA and New York wage and hour law by failing to pay Agents for "off-the-clock" overtime hours. See Dkt. No. 1; see also Dkt. No. 47-1 at ¶ 4; Dkt. No. 47-2 at ¶ 4.

Plaintiffs alleged that they and the Class Members were employed by Defendant as Agents at Defendant's Clifton Park, New York call center facility and were required to perform unpaid off-the-clock overtime work before and after their scheduled shifts and during their unpaid meal breaks, such as booting up and shutting down computers and logging into computer software programs and applications that were integral and necessary for the performance of their work. See Dkt. No. 47-1 at ¶ 13; Dkt. No. 47-2 at ¶ 13. According to Plaintiffs, Agents were notcompensated for this time because Defendant trained and instructed Agents not to record this time on their timesheets. See id. Plaintiffs sought to recover unpaid overtime wages arising from the alleged off-the-clock overtime work, as well as liquidated damages, prejudgment interest, and reasonable attorneys' fees and costs. See id.

With respect to the alleged off-the-clock overtime work, Plaintiffs alleged that Defendant failed to pay Agents for the following tasks:

a. At the beginning of each shift in connection with: locating workstations, starting-up and logging into the computers, systems and programs utilized during their shift, and reading e-mails - averaging five-to-ten minutes per shift;

b. During their meal periods in connection with logging back into Defendant's programs and systems - taking up to five minutes per shift; and

c. At the end of each shift in connection with: shutting-down and logging out of computers, systems and programs - averaging two-to-three minutes per shift.

Dkt. No. 1 at ¶¶ 52-63. Additionally, Plaintiffs alleged that Defendant refused to compensate its Agents for any time spent disconnected from Defendant's auto-dialing system. See id. at ¶ 8. According to Plaintiffs, Defendant unlawfully deducted this compensable time - averaging up to one hour per week - from the Agent's timesheets. See id. at ¶¶ 64-74.

Defendant answered the complaint on June 18, 2019. See Dkt. No. 20. Defendant denied all liability, damages, and that class or collective action certification was proper. See id. On April 15, 2019, Plaintiffs filed their motion for conditional certification, see Dkt. No. 11, which Defendant indicated that it would oppose. See Dkt. No. 47-1 at ¶ 15; Dkt. No. 47-2 at ¶ 15.

B. Settlement Negotiations

In lieu of briefing conditional certification, the parties engaged in settlement discussions, including the exchange of payroll records and data, with the goal of settling, rather than litigating, the dispute. See Dkt. No. 47-1 at ¶ 16; Dkt. No. 47-2 at ¶ 16. In preparation for mediation, the parties exchanged targeted discovery aimed at allowing them to perform damages calculations. See id. at ¶ 17. As part of this exchange, Defendant produced data showing the number of Class Members employed as Agents, average earnings, and number of weeks worked. See id. Plaintiffs performed damages calculations based on the data Defendant provided. See id.

On November 7, 2019, the parties attended a mediation session in Albany, New York with William G. Bauer, Esq. See id. at ¶ 18. The parties reached a successful settlement during the mediation and then began working to formalize the settlement terms agreed upon and preparing a motion for Court approval of the settlement. See id.

On January 24, 2020, Plaintiffs filed their unopposed motion for preliminary approval of class action settlement, approval of class notice, and setting final approval hearing. See Dkt. No. 41. In their motion, Plaintiffs requested, among other things, that the Court grant preliminary approval of the Settlement Agreement and conditionally certify the settlement class. See Dkt. No. 47-1 at ¶ 21; Dkt. No. 47-2 at ¶ 21. On January 29, 2020, the Court granted Plaintiffs' motion for preliminary approval. See Dkt. No. 42.

C. CAFA Notice

Defendant sent notices to federal and state authorities required by the Class Action Fairness Act ("CAFA") on February 27, 2020. See 28 U.S.C. § 1715(d). The 90-day CAFA notice period concluded on May 27, 2020. See Dkt. No. 47-1 at ¶ 23; Dkt. No. 47-2 at ¶ 23.

D. Summary of the Settlement Terms

1. The Settlement Fund

The settlement establishes a gross settlement amount of $244,000 to settle claims against Defendant (the "Fund"). See Dkt. No. 41-1 at § 1.13. The Fund covers Class Members' awards, service payments, attorneys' fees and costs, and the settlement administrator's fees and costs. See id. Defendant will pay all applicable employer-side payroll taxes. See id. at § 3.5(C).

2. Eligible Employees and Releases

Class Members who are entitled to receive payments from the Fund include all of Defendant's current or former account representatives and transfer agents who worked for Defendant at any time between April 1, 2016 through November 7, 2019. See id. at § 1.4. All Class Members who sign and cash a settlement check or who do not timely opt out of the settlement will release Defendant from all state and federal wage and hour claims. See id. at § 4.1(A)-(B). In addition, Plaintiffs will provide a general release, including a release of unknown claims. See id. at § 4.1(C).

3. Allocation Formula

Class Members will be paid pursuant to an allocation formula based on the number of weeks they worked during the Class Period. See id. at § 3.4. The Settlement Claims Administrator will calculate Settlement Awards based on the class information provided by Defendant, and will allocate such payments as follows:

(Total of Settlement Awards ÷ Total Weeks Worked by All Settlement Class Members During the Class Period) x Total Weeks Worked by the Respective Settlement Class Member During the Class Period = Settlement Class Member's Portion of Settlement Awards.

Id. For any Class Member whose Settlement Check is returned as undelivered, the Settlement Claims Administrator will attempt to locate the claimant and re-mail the check. See id. at §2.10(C). Any uncashed settlement checks remaining in the Fund 180 days after the check was mailed will revert to Defendant. See id. at § 1.13.

4. Attorneys' Fees and Costs

Class Counsel also seek an award of attorneys' fees of $81,333.33, which is 33% of the Settlement Fund. See Dkt. No. 48. Additionally, Class Counsel seek reimbursement of up to $10,000 in necessarily incurred out-of-pocket expenses. See id.

5. Settlement Claims Administration

To facilitate the logistics of executing this settlement, the parties retained Simpluris to serve as the Settlement Claims Administrator ("Claims Administrator"). See Dkt. No. 47-1 at ¶ 30; Dkt. No. 47-2 at ¶ 30. The Claims Administrator's fees of $25,000 are to be paid from the Fund. See Dkt. No. 41-1 at § 1.13.

On March 11, 2020, the Claims Administrator mailed the Court-approved Class Notice ("Notice") to 497 Class Members whose names and addresses were provided by Defendants. See Dkt. No. 47 at 17. If a Class Member's Notice was returned as undeliverable and without a forwarding address, the Claims Administrator performed an advanced address search (i.e., skip trace) on all of these addresses by using Accurint, a research tool owned by Lexis-Nexis. See id. at 17-18. Through the advanced address searches, the Claims Administrator was able to locate seventy-five updated addresses and promptly mailed Notices to those updated addresses. See id. at 18. Ultimately, sixteen Class Member's Notices were undeliverable because the Claims Administrator was unable to locate a current address. See id.

The Notice advised Class Members of their right to object to or exclude themselves from the settlement, and explained how to do so. See id. To date, there have been no objections, andonly two Class Members ...