# Stephens v. ADS Alliance Data Systems, Inc.

> District Court, S.D. Ohio · March 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10384184

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10384184

## How later opinions describe it (automated extraction)

- discussing a class action settlement under Federal Rule of Civil Procedure 23
- observing that “Injumerous courts” have found that service awards are “efficacious ways of encouraging members of a class to become class representatives and rewarding individual efforts taken on behalf of the class’

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Tammy Stephens,
Plaintiff, Case No. 2:20-cv-2152
Vv. Judge Michael H. Watson
ADS Alliance Data Systems, Inc., Magistrate Judge Jolson
Defendant.
OPINION AND ORDER
Cathy Howard (“Howard”) and Brenda Parsons (“Parsons” collectively with
Howard “Plaintiffs”) move for final approval of the parties’ Rule 23 class action
Settlement, the parties’ settlement of Parsons’s claims under the Fair Labor
Standards Act (“FLSA”), and for an award of attorney’s fees and service awards.
ECF No. 144 & 145. ADS Alliance Data Systems, Inc. (“Defendant”) does not

oppose either motion. For the following reasons, Plaintiffs’ motions are
GRANTED.
I. BACKGROUND
A. Procedural History
Plaintiffs sued ADS Alliance Data Systems, Inc. (“Defendant”) for unpaid
overtime wages and other relief under the FLSA and analogous state laws. Third
Am. Compl., ECF No. 130. Plaintiffs alleged that Defendant required her and
similarly situated employees to perform “off the clock” work without pay, which
resulted in unpaid overtime. /d.

After multiple rounds of mediation, the parties settled all the claims, with
Parsons as the representative plaintiff for the FLSA collective and Howard as the
representative plaintiff for the Rule 23 class. See generally, Mot., ECF No. 144.
As to the Rule 23 settlement, the parties moved for preliminary approval of
their Settlement Agreement, which the Court granted. Order, ECF No. 141. The
Court held a fairness hearing on January 24, 2024, and now turns to Plaintiffs’
unopposed motions for final approval of the Rule 23 and FLSA settlements, and
for an award of attorney's fees, costs, and service awards. ECF Nos. 144 & 145.
B. The Settlement Agreement
The Settlement Agreement creates a $442,000.00 Settlement Fund for
the benefit of the Rule 23 Class and FLSA collective. Settlement Agr. {| 26, 140.
The Settlement Fund will cover settlement payments to Class Members, costs of
notice to the Class and administration of the settlement, reimbursement of Class
Counsel’s reasonable costs and expenses, attorney's fees for Class Counsel,
and service awards to named Plaintiffs. See generally id.
The Settlement Class is defined as follows:
[A]ll employees who are current and former hourly Care Center
employees and Work at Home Care Center employees who were
employed by Defendant in Ohio for a period of more than thirty days
and whose job it was to interact with customers via the telephone
and/or the computer from April 29, 2018 through the final disposition
of this matter. The Ohio Settlement Class shall not include anyone
who has already opted into the Fair Labor Standards Act collective
action in Tammy Stephens, et al. v. ADS Alliance Data Systems, Inc.,
Case No. 2:20-cv-02152-MHW-KAJ. The Ohio Settlement Class
Participants, as finally approved by the Court and subject to the final

Case No. 2:20-cv-2152 Page 2 of 24

judgment entered in this Action, shall not include anyone who has
timely and validly opted out of the Rule 23 Ohio class settlement.
The parties represent that there are over 4,000 Class Members. Mot.,
ECF No. 144.
Notice
The Court appointed ILYM Group, Inc. (“ILYM”) to be the Settlement
Administrator. See Order 4, ECF No. 141. ILYM was responsible for
providing Notice to Class Members. See generally Snow Decl., ECF No.
144-1. ILYM reviewed the records provided by Class Counsel, obtained
updated contact information for the Class Members, and sent the Notice via
mail to 4,256 Class Members. /d. 4—7. Although over 200 notices initially
came back as undeliverable, ILYM was ultimately able to send notices to all
but 85 Class Members. /d. {] 8-10.
ll. | APPROVAL OF CLASS CERTIFICATION FOR SETTLEMENT
To grant final approval of a settlement class, the Rule 23 requirements
must be satisfied. See Fed. R. Civ. P. 23. The Court has already preliminarily
approved the Class for settlement purposes, ECF No. 141, and now finds that
the standards required for final approval are satisfied.
A. Numerosity
To satisfy numerosity, the class must be “so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no strict
numerical test for determining impracticability of joinder.” In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citation omitted). Indeed, “[t]he

Case No. 2:20-cv-2152 Page 3 of 24

numerosity requirement requires examination of the specific facts of each case
and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc., v. EEOC,
446 U.S. 318, 330 (1980). Here, the Class contains over 4,000 members.
Numerosity is satisfied because it would be impractical, if not impossible, to join
all of these members into one action.
B. Commonality
To establish commonality, there must be “questions of law or fact common
to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to
demonstrate that the Class Members have suffered the same injury.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (internal quotation marks and
citations omitted). The claims “must depend upon a common contention[,]" and
“It]hat common contention . . . must be of such a nature that is capable of class
wide resolution—which means that determination of its truth or its falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.” /d. at 350.
Here, the lawsuit raised numerous common questions including whether
class members were subject to the same policy that required them to work off the
clock. In addition, the Class Members have the same alleged injury: unpaid
overtime. Accordingly, the commonality requirement is satisfied.
Typicality
A class representative's claim is typical if “it arises from the same event or
practice or course of conduct that gives rise to the claims of other Class

Case No. 2:20-cv-2152 Page 4 of 24

Members, and if his or her claims are based on the same legal theory.” Beattie

v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quoting /n re Am. Med.
Sys., Inc., 75 F.3d at 1082). The typicality requirement “tend[s] to merge” with
the commonality requirement. Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147,
157, n.13 (1982).
Here, the typicality element is satisfied because the Class claims are
based on the same legal theories and the same alleged conduct.
D. Adequacy of Representation
The adequacy inquiry “serves to uncover conflicts of interest between
named parties and the class they seek to represent.” Amchem Products, Inc., v.
Windsor, 521 U.S. 591, 625 (1997) (citing Falcon, 457 U.S. 157-58). To
determine the adequacy of representation requirement, a court must consider
two elements: (1) “the representative must have common interests with unnamed
members of the class”; and (2) “it must appear that the representative] will
vigorously prosecute the interests of the class through qualified counsel.” Pelzer

v. Vassalle, 655 F. App’x 352, 364 (6th Cir. 2016) (internal quotation marks and
citations omitted).
Here, Howard and the class members share common interests. No
conflict exists between Howard and the class members she seeks to represent.
Also, Class Counsel have extensive experience in class action litigation and
corporate matters. See Alexander Decl. ] 4-5, ECF No. 128-5; DeRose Decl.
q 5, ECF No. 128-6. Thus, adequacy is met.

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E. Rule 23(b) Requirements
Plaintiffs seek certification pursuant to Rule 23(b)(3), which requires a
showing that common questions of fact or law predominate over any individual
questions and that a class action is superior to other available methods for
adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).
1. Predominance
“To meet the predominance requirement, a plaintiff must establish that
issues subject to generalized proof and applicable to the class as a whole
predominate over those issues that are subject to only individualized proof.”
Randleman v. Fidelity Nat’! Title Ins. Co., 646 F.3d 347, 353 (6th Cir. 2011)
(citing Beattie, 511 F.3d at 564).
Predominance is satisfied here. There is one set of core predominate
facts and legal issues, including that all class members worked for Defendant,
were paid by the hour, and were subject to the same policies. Consequently, the
alleged injuries to Class Members are of the same nature, and each class
member would have experienced similar alleged underpayment by Defendant.
The Court therefore finds common questions predominate over individual issues
in this case.
2. Superiority
Finally, before certifying a class under Rule 23(b)(3), the Court must find
that a class action is “superior to other available methods for fairly and efficiently

Case No. 2:20-cv-2152 Page 6 of 24

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). To make this decision,
the Court considers:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
Here, class treatment is superior to other available methods. The Class
Members have little interest in individually controlling separate actions, as the
amount of individual damages is likely to be small. “[S]mall awards weigh in
favor of class suits.” Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of
Mich., 654 F.3d 618, 631 (6th Cir. 2011) (citing cases). The Court is not aware of

any litigation concerning this controversy that has already begun by or against
the class members. It is desirable to concentrate the litigation in this forum as
the parties and, to a lesser extent, the Court have already expended significant
time and resources on this case. Last, the difficulties in managing a class action
do not outweigh the benefits of certifying a class in this case. Accordingly, a
class action is clearly the superior method of adjudicating this case.
For these reasons, the Class is CERTIFIED for purposes of the
Settlement, and the Court APPOINTS Anderson Alexander, LLP and Barkan
Meizlish DeRose Cox, LLP as Class Counsel.

Case No. 2:20-cv-2152 Page 7 of 24

lll. APPROVAL OF THE PROPOSED CLASS SETTLEMENT
When deciding whether to approve a proposed settlement, the Court must
consider whether the settlement is “fair, reasonable, and adequate.” Fed. R.
Civ. P. 23(e)(2).
In making this determination, the Court considers the following factors:
(1) the risk of fraud or collusion; (2) the complexity, expense and likely
duration of the litigation; (3) the amount of discovery engaged in by
the parties; (4) the likelihood of success on the merits; (5) the opinions
of class counsel and class representatives; (6) the reaction of absent
class members; and (7) the public interest.
Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 244
(6th Cir. 2011) (citations and internal quotation marks omitted). The Court
“enjoys wide discretion in assessing the weight and applicability of these factors.”
Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205-06 (6th Cir. 1992)
(citation omitted). For the reasons that follow, the Court concludes that the
Settlement is fair, adequate, and reasonable.
A. _ The Risk of Fraud or Collusion
First, the Court finds that there is no evidence—or even a suggestion—that
the Settlement was the product of fraud or collusion. See [UE-CWA v. Gen.
Motors Corp., 238 F.R.D. 583, 598 (E.D. Mich. 2006) (“Courts presume the
absence of fraud or collusion unless there is evidence to the contrary.” (citation
omitted)). Rather, the Settlement is the result of arm’s-length negotiations and

Case No. 2:20-cv-2152 Page 8 of 24

two rounds of mediation. The Court concludes that this factor favors approval of
the Settlement.
B. Complexity, Expense, and Likely Duration of the Litigation
Generally, “[mjost class actions are inherently complex and settlement
avoids the costs, delays, and multitude of other problems associated with them.”
In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985, 1013 (S.D. Ohio 2001)
(quoting In re Austrian and German Bank Holocaust Litig., 80 F. Supp. 2d 164,
174 (S.D. N.Y. 2000)).
Here, the parties have been litigating this case since 2020. Absent a
settlement, continued litigation of this case would have resulted in substantial
additional time and effort spent preparing for litigation, including additional
discovery, class certification, dispositive motions, trial preparation, and possible
appeals. Settling the case now saves time and money for the parties and the
Court.
Accordingly, this factor weighs in favor of approving the Settlement. It

secures a substantial benefit for the Class Members, undiminished by further

expenses and without the delay, cost, and uncertainty of protracted litigation.
C. The Amount of Discovery Engaged in By the Parties
To confirm that Plaintiffs “nave had access to sufficient information to
evaluate their case and to assess the adequacy of the proposed Settlement,” the
Court must consider the amount of discovery engaged in by the parties. /n re
Broadwing, Inc. ERISA Litig., 252 F.R.D. 369, 374 (S.D. Ohio 2006) (citations

Case No. 2:20-cv-2152 Page 9 of 24

omitted). “In considering whether there has been sufficient discovery to permit
the plaintiffs to make an informed evaluation of the merits of a possible
settlement,” courts “should take account not only of court-refereed discovery but
also informal discovery in which parties engaged both before and after litigation
commenced.” UAW v. Gen’! Motors Corp., No. 05-CV-73991-DT, 2006 WL
891151, at *19 (E.D. Mich. Mar. 31, 2006) (citation omitted). In this
consideration, “the absence of formal discovery is not unusual or problematic, so
long as the parties and the court have adequate information in order to evaluate
the relative positions of the parties.” /d. (citing cases).
In this case, the parties engaged in both formal and informal discovery,
including paper discovery and some depositions. Thus, the parties had ample
evidence with which to evaluate the strengths and weaknesses of their positions
and determine that the Settlement is fair and reasonable under the
circumstances. The Court finds that both sides made well-informed decisions to
enter into the Settlement. This factor weighs in favor of approving the proposed
Settlement.
D. The Likelihood of Success on the Merits
“The most important of the factors to be considered in reviewing a
Settlement is the probability of success on the merits. The likelihood of success,
in turn, provides a gauge from which the benefits of the settlement must be
measured.” Poplar Creek, 636 F.3d at 245 (quoting /n re Gen. Tire & Rubber Co.
Sec. Litig., 726 F.2d 1075, 1086 (6th Cir. 1984)).

Case No. 2:20-cv-2152 Page 10 of 24

Here, Howard alleges that Defendant required Class members to perform
work off the clock, which resulted in unpaid overtime. Defendant unequivocally
opposes all allegations. Among other issues, it could be difficult for Howard to

prove that Defendant had a policy of requiring off-the-clock work. Indeed,
counsel represent that Defendant had a policy prohibiting off-the-clock work.
Accordingly, due to the existence of uncertainties inherent in their claims,
Howard’s likelihood of success on the merits of its claims remains uncertain.
This factor therefore weighs in favor of approving the Proposed Settlement.
E. The Opinions of Class Counsel
The recommendation of Class Counsel, skilled in class actions and
corporate matters, that the Court should approve the Settlement is entitled to
deference. See, e.g., Williams v. Vukovich, 720 F.2d 909, 922~23 (6th Cir. 1983)
(‘The court should defer to the judgment of experienced counsel who has
competently evaluated the strength of his proofs .. . . [T]he deference afforded
counsel should correspond to the amount of discovery completed and the
character of the evidence uncovered.”); see also Kritzer v. Safelite Solutions,
LLC, No. 2:10-cv-0729, 2012 U.S. Dist. LEXIS 74994, at *7 (S.D. Ohio May 30,
2012) (“The Court gives weight to the belief of experienced counsel that a
settlement is in the best interests of the class.”).
In this case, Class Counsel have extensive experience in class action
litigation and wage and hour claims. See Alexander Decl. ff] 4-5, ECF No. 128-
5; DeRose Decl. 7 5, ECF No. 128-6. Equipped with extensive experience, Class

Case No. 2:20-cv-2152 Page 11 of 24

Counsel have concluded that the Settlement is not only fair and reasonable but
also confers meaningful benefits on the Settlement Class. Alexander Decl. {| 18,
ECF No. 128-5; DeRose Decl. J 11, ECF No. 128-6. The Court therefore finds
that this factor favors approval of the proposed Settlement.
F. The Reaction of Absent Class Members
The Court must also consider the reaction of the Class Members. Poplar
Creek, 636 F.3d at 244; In re Broadwing, 252 F.R.D. at 376.
Individual notice packets were sent to 4,256 class members. Snow Decl.
7, ECF No. 144-1. Only 85 of those Class Members were unable to receive
notice. /d. at] 10. No Class Members objected, and only two Class Members
opted out of the Settlement. /d. at {J 11-12. Thus, 0% of Class Members
objected and 0.0005% opted out; both percentages are quite low and
demonstrate that, as a whole, the Class supports the Settlement. Mot. 8, ECF
No. 144. In sum, the overall positive response from the Class Members weighs
in favor of approving the Settlement.
G. The Public Interest
“Public policy generally favors settlement of class action lawsuits.” Hainey
v. Parrott, 617 F. Supp. 2d 668, 679 (S.D. Ohio 2007) (citation omitted). In this

case, the Settlement confers immediate benefits on the Class Members, avoids
the risks and expense in further litigation, and conserves judicial resources. The
Court therefore finds that this factor favors approving the Settlement.

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In sum, after considering all of the relevant factors, the Court concludes
that the Settlement provides a substantial benefit to the parties and is fair,
reasonable, and adequate. See Fed. R. Civ. P. 23(e)(2).
IV. APPROVAL OF THE FLSA SETTLEMENT
“As a general rule, employees’ claims under the FLSA are non-waivable
and may not be settled without supervision of either the Secretary of Labor or a
district court.” Gentrup v. Renovo Servs., LLC, No. 1:07-cv-430, 2011 WL
2532922, at *2 (S.D. Ohio June 24, 2011) (citing Lynn’s Food Stores, Inc. v.
United States, 679 F.2d 1350, 1352-53 (11th Cir. 1982)). To approve a
settlement agreement, a court must conclude that it is a “fair, reasonable, and
adequate” resolution of a bona fide legal dispute. Int’! Union, United Auto,
Aerospace, and Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d
615, 631 (6th Cir. 2007) (discussing a class action settlement under Federal Rule
of Civil Procedure 23); see also Vigna v. Emery Fed. Credit Union, No. 1:15-cv-
51, 2016 WL 7034237, at *3 (S.D. Ohio Dec. 2, 2016) (applying the same
analysis to an FLSA settlement). Factors relevant to this determination include:
(1) “the risk of fraud or collusion behind the settlement”; (2) “the complexity,
expense, and likely duration of the litigation”; (3) “the amount of discovery
completed’; (4) “the likelihood of plaintiff's success on the merits”; and (5) “the
public interest in settlement.” Clevenger v. JMC Mech., Inc., No. 2:15-cv-2639,
2015 WL 12681645, at *1 (S.D. Ohio Sept. 25, 2015) (citation omitted). “The
court may choose to consider only factors that are relevant to the settlement at

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hand and may weigh particular factors according to the demands of the case.”
Gentrup, 2011 WL 2532922, at *3 (citation omitted).
After a careful review of the proposed settlement agreement, the Court
finds that the settlement agreement is a fair, reasonable, and adequate resolution
of a bona fide legal dispute between the parties.
There is a bona fide dispute in this case, as the parties dispute, inter alia,
whether collective members worked hours for which they were not paid. There is

no indication that the settlement was reached by anything other than arms’ length
negotiations between counsel. The settlement will avoid expensive litigation for
both sides, including remaining discovery, dispositive motions, trial, and possible
appeals. Further, the parties represent that they engaged in substantial informal
discovery and, therefore, have had the opportunity to consider their respective
likelihoods of success.
The total settlement amount is $442,000.00. Settlement Agr. 26, ECF
No. 140. From this amount, each FLSA collective member will receive a pro rata
share of their total aggregate workweeks. /d. [| 28. The parties do not indicate
what percentage of the alleged unpaid wages and liquidated damages these
payments cover. However, a review of the filings in this case indicates that these
payments cover a fair and reasonable portion of the possible alleged damages.
Parsons will receive a $3,500.00 service award in addition to her individual
payment. /d. J 31.

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These payments are reasonable. See Vigna, 2016 WL 7034237, at *2-4
(approving a settlement that represented approximately 55% of allegedly owed
wages); Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003) (observing that
“Injumerous courts” have found that service awards are “efficacious ways of
encouraging members of a class to become class representatives and rewarding
individual efforts taken on behalf of the class’).
In sum, the FLSA settlement is fair, reasonable, and adequate and,
therefore, is APPROVED.
V. | ATTORNEY’S FEES AND COSTS
Attorney’s Fees
Class Counsel seeks an award of one-third of the total Settlement Fund in
the amount of $147,333.33. Mot. for Attorney’s Fees 1, ECF No. 145. Neither
Defendant nor any Class Member has opposed this request.
“When awarding attorney’s fees in a class action, a court must make sure
that counsel is fairly compensated for the amount of work done as well as for the
results achieved.” Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 516
(6th Cir. 1993) (citation omitted). Rule 23 authorizes a court to “award
reasonable attorney’s fees and non-taxable costs that are authorized by law or
by the parties’ agreement.” See Fed. R. Civ. P. 23(h).
District courts apply a two-part analysis to assess the reasonableness of

an attorney fee petition. See /n re Cardinal Health Inc. Sec. Litigs., 528 F. Supp.
2d 752, 760 (S.D. Ohio Dec. 31, 2007). First, the court must determine the

Case No. 2:20-cv-2152 Page 15 of 24

appropriate method to calculate the fees, using either the percentage of fund or
the Lodestar approach. /d. Whichever method is used, the United States Court
of Appeals for the Sixth Circuit requires “only that awards of attorney's fees by
federal courts in common fund cases be reasonable under the circumstances.”
Rawlings, 9 F.3d. at 516. Second, the Court should consider six factors to

assess the reasonableness of the fee. See Moulton v. U.S. Steel Corp., 581
F.3d 344, 352 (6th Cir. 2009).
Here, the Court is applying the percentage of the fund method. See, e.g.,
Gascho v. Global Health Fitness Holdings, LLC, 822 F.3d 269, 279 (6th Cir.
2016) (indicating that the district court must make a “clear statement” as to which
calculation method is being applied (citation omitted)). Accordingly, the Court will
consider the following factors in determining whether the fee request is
reasonable under the circumstances:
(1) the value of the benefit rendered to the plaintiff class; (2) the value
of the services on an hourly basis; (3) whether the services were
undertaken on a contingent fee basis; (4) society’s stake in rewarding
attorneys who produce such benefits in order to maintain an incentive
to others; (5) the complexity of the litigation; and (6) the professional
skill and standing of counsel involved on both sides.
Moulton, 581 F.3d at 352 (internal quotation marks and citations omitted).
Under the circumstances of this specific case, particularly where neither
Defendant nor any Class Member opposes the fee request and the Class has
received a “substantial benefit,” the Court concludes that all of these factors
weigh in favor of approving an award of attorney’s fees.

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As to the first factor, the Court has already described at length the benefit
conferred to the Class Members through Settlement. The total settlement
amount is for $442,000.00; each class member received individual payments and
avoided further litigation. This factor therefore weighs in favor of approving the
requested award.
Second, the value of the services on an hourly basis, multiplied by the
hourly rate, favors the proposed fee award. Counsel's represented lodestar is

over $255,000.000, which is almost $80,000.00 more than the requested fee.
Thus, a cross-check using Class Counsel's lodestar amount weighs in favor of
granting the requested fee award.
Third, Class Counsel represents that they took on this case pursuant to a
contingency fee agreement. In doing so, Class Counsel assumed a real risk in
taking on this case, preparing to invest time, effort, and money over a period of

years with no guarantee of recovery. This factor weighs in favor of approving the
requested fee award. See, e.g., In re Sulzer Hip Prosthesis and Knee Prosthesis
Liability Litig., 268 F. Supp. 2d 907, 936 (N.D. Ohio 2003) (“Absent this class
action, most individual claimants would lack the resources to litigate a case of
this magnitude.”).
The Court next considers whether the fourth factor, society’s stake in
rewarding attorneys who produce such benefits, militates in favor of an award of
the requested attorney's fees. Class actions such as this have a “value to
society more broadly, both as deterrents to unlawful behavior—particularly when

Case No. 2:20-cv-2152 Page 17 of 24

the individual injuries are too small to justify the time and expense of litigation—
and as private law enforcement regimes that free public sector resources.”
Gascho, 822 F.3d at 287 (citing cases). Without a class action, the individual
plaintiffs would not have had a strong incentive to pursue recovery because any
monetary award would have been severely outweighed by the costs to litigate
their case.
The remaining two factors, the complexity of the litigation and the
professional skill and standing of the attorneys involved, also militate in favor of
granting the requested award. This is a complex case with nuanced issues and
significant litigation.
Class Counsel have extensive experience in class action litigation similar
to this action. See Alexander Decl. J] 4-5, ECF No. 128-5; DeRose Decl. {| 5,
ECF No. 128-6. As discussed above, the hours expended and time records
submitted by Class Counsel further underscore their competency and efficient
handling of this matter, favoring approval.
For these reasons, the Court APPROVES the fee award of $147,333.33 to
Class Counsel.
B. Settlement Administration Costs and Out-of-Pocket Expenses
“Under the common fund doctrine, class counsel is entitled to
reimbursement of all reasonable out-of-pocket litigation expenses and costs in
the prosecution of claims and in obtaining settlement[.]” In re Cardizem CD
Antitrust Litig., 218 F.R.D. 508, 535 (E.D. Mich. 2003). These costs include

Case No. 2:20-cv-2152 Page 18 of 24

“expenses incurred in connection with document productions, consulting with and
deposing experts, travel and other litigation-related expenses.” /d.
Class Counsel avers that out-of-pocket expenses, which currently amount
to $12,257.58, were necessary and directly related to this litigation. Alexander
2024 Decl. J 18, ECF No. 144-2. The Court finds that these costs are
reasonable and necessary to litigate and settle this case and therefore
APPROVES the request of $25,583.69 for out-of-pocket expenses.
C. Class Representative Awards
Service awards are “efficacious ways of encouraging members of a class
to become class representatives and rewarding individual efforts taken on behalf
of the class.” Hadix, 322 F.3d at 897. Notably, “courts routinely approve
incentive awards to compensate named plaintiffs for the services they provided
and the risks they incurred during the course of the class action litigation.”
Dillworth v. Case Farms Processing, Inc., No. 5:08-cv-1694, 2010 WL 776933, at
*7 (N.D. Ohio Mar. 8, 2010) (internal quotation marks and citations omitted).
Here, the Settlement Agreement proposes to award Howard a service
award of $3,500.00. Settlement Agr. 7 31, ECF No. 140. Howard assisted in the
prosecuting and settling of the litigation, including communication with counsel
and participating in discovery. See Mot. 9, ECF No. 128. In light of this service,
the Court APPROVES the service award of $3,500.00 to Howard.
VI. CONCLUSION
For these reasons, the Court GRANTS final approval of the Settlement.

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The Court observes, however, that this settlement is an unusual one. The Court's
approval of this settlement is limited to only the facts of this case and should not be
viewed as a general approval of “hybrid” Rule 23 and FLSA settlements, let alone
approval of second-chance classes or tiered recovery not based on differences in
damages.
The Court enters final judgment as follows:
1. The Court incorporates by reference the definitions set forth in the
Agreement.
2. This Court has personal jurisdiction over all Representative Plaintiffs,
FLSA Collective Members, and Ohio Class Members, and has subject matter
jurisdiction over all claims asserted in the Third Amended Collective/Class Action
Complaint. In addition, venue in the Southern District of Ohio is proper.
3. The Agreement is approved as fair, reasonable, and adequate,
consistent and in compliance with the applicable provisions of the United States
Constitution and the Federal Rules of Civil Procedure, and in the best interest of
the Class. The Agreement is binding on, and will have res judicata and
preclusive effect in all pending and future lawsuits or other proceedings
encompassed by the Agreement and the Release maintained either by or on
behalf of Representative Plaintiffs and all other Ohio Settlement Class Members
and FLSA Collective Members, as well as their past, current, and future heirs,
representatives, executors, administrators, attorneys, predecessors, successors,
and assigns.

Case No. 2:20-cv-2152 Page 20 of 24

4. The Notice of Class Action Settlement provided pursuant to the
Agreement and the Order Granting Preliminary Approval of Class Settlement:
(a) Constituted the best practicable notice, under the circumstances;
(b) Constituted notice that was reasonably calculated to apprise the Ohio
Class Members of the pendency of this lawsuit, their right to object or exclude
themselves from the proposed settlement, and to appear at the Fairness
Hearing;
(c) Was reasonable and constituted due, adequate, and sufficient notice to
all persons entitled to receive notice; and
(d) Met all applicable requirements of the Federal Rules of Civil Procedure
and the Due Process Clause of the United States Constitution because it stated
in plain, easily understood language the nature of the action; the definition of the
class certified; the class claims, issues, or defenses; that a class member may
enter an appearance through an attorney if the member so desires; that the
Court will exclude from the class any member who requests exclusion; the time
and manner for requesting exclusion; and the binding effect of a class judgment
on members under Rule 23(c)(3).
5. For settlement purposes only, that the Class satisfies the applicable
standards for certification under Fed. R. Civ. P. 23(a) and (b)(3).
6. The Agreement in this action warrants final approval pursuant to
Rule 23(e) of the Federal Rules of Civil Procedure because it is fair, adequate,
and reasonable to those it affects, and resulted from vigorously contested

Case No. 2:20-cv-2152 Page 21 of 24

litigation, including meaningful discovery, motion practice, and extensive good-
faith arm’s length negotiations between the parties.
7. The Agreement in this action warrants approval pursuant to 29
U.S.C. § 216(b) because it constitutes the fair, adequate, and reasonable
resolution of a bona fide dispute, and is approved under the FLSA.
9. Cathy Howard is the Representative Plaintiff for the Ohio Class
Members and Brenda Parsons is the Representative Plaintiff for the FLSA
Collective Members, and they will fairly and adequately represent their respective
Class/Collective Members.
10. Class Counsel and the Representative Plaintiffs adequately
represented the Class and Collective for purposes of entering into and
implementing the settlement.
13. Class Counsel’s requested fees and expenses under the
Agreement, and as set out in their Motion for Fees and Costs, ECF No. 145, are
fair and were reasonably and necessarily incurred.
14. The Service Awards for the Representative Plaintiffs, as set forth in
the Agreement, are approved, and the Representative Plaintiffs shall each be
entitled to receive $3,500.00 to compensate them for their unique services in
initiating and/or maintaining this litigation.
15. _ILYM Group, Inc.’s expenses for administering the settlement,
including the distribution of Notice and the settlement funds, are reasonable and

are approved.

Case No. 2:20-cv-2152 Page 22 of 24

16. Nothing relating to this Order, or any communications, papers, or
orders related to the Agreement, shall be cited to as, construed to be, admissible

as, or deemed an admission by Defendant or the Defendant Releasees of any
liability, culpability, negligence, or wrongdoing toward the Representative
Plaintiffs, Collective Members, Class Members, or any other person, or that class
action certification is appropriate in this or any other matter. There has been no
determination by any Court as to the merits of the claims asserted by
Representative Plaintiffs against Defendant or as to whether a class should be
certified, other than for settlement purposes only. Furthermore, nothing in the
parties’ Agreement shall be cited to as, construed to be, admissible as, or
considered any form of waiver of any alternative dispute resolution agreements,
provisions, or policies by Defendant.
17. Inconsideration of the consideration paid under the Agreement, and
for other good and valuable consideration, each of Ohio Class Members and
FLSA Collective Members shall, by operation of this Judgment, have fully, finally,
and forever released, relinquished, and discharged all of their respective
Released Claims against Defendant in accordance with the terms of the
Agreement.
18. Inthe event that the Effective Date does not occur, this Judgment
shall be rendered null and void and shall be vacated, nunc pro tunc, and without
prejudice to the status quo ante rights of Plaintiffs, Collective Members, Class
Members, and Defendant.

Case No. 2:20-cv-2152 Page 23 of 24

19. All Ohio Class Members and/or their representatives who have not
been excluded from the Class are permanently barred and enjoined from
bringing, filing, commencing, prosecuting, maintaining, intervening in,
participating in (as class members or otherwise), or receiving any benefits from
the assertion of any Released Claim in any other lawsuit (including putative class
action lawsuits), arbitration, administrative, regulatory, or other proceeding, order,
or cause of action in law or equity in any jurisdiction.
20. The Court retains jurisdiction over all proceedings arising out of or
related to the Agreement.
21. This lawsuit (including all individual claims, Collective claims, and
Class claims presented thereby) is dismissed on the merits and with prejudice,
without fees or costs to any party, except as provided above and/or in the
Agreement.
The Clerk shall close the case.
IT IS SO ORDERED. I i . MW, bh eh,
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:20-cv-2152 Page 24 of 24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384184. Public record. Not legal advice.