Authored by Robert S. Whitman and Howard M. Wexler

Seyfarth Synopsis: The U.S. District Court for the Southern District of New York recently announced that cases filed under the FLSA and assigned to Judges Abrams, Briccetti, Carter, Daniels, Ramos, Seibel, and Woods will be ordered directly to mediation, before the initial Rule 16 conference, with limited pre-mediation disclosures. If successful, other Districts may implement similar procedures.

As we all know, wage and hour litigation continues to soar to record highs.  We expect 2016 will be another record year and that the revisions to the white collar exemptions effective December 1st will further increase the number of lawsuits around the country.

In an attempt to stem its ever-increasing caseload of FLSA cases, the U.S. District Court for the Southern District of New York recently announced that, beginning October 3, 2016, cases filed under the FLSA and assigned to Judges Abrams, Briccetti, Carter, Daniels, Ramos, Seibel, and Woods will be ordered directly to mediation, before the initial Rule 16 conference, with limited pre-mediation disclosures.

The mediation must take place within 60 days of the referral to mediation.  The limited information exchange includes the following:

  1. Any existing documents that describe the Plaintiff’s duties and responsibilities.
  2. Records of wages paid to and hours worked by the Plaintiff (e.g., payroll records, time sheets, work schedules, wage statements and wage notices).
  3. The Plaintiff must produce a spreadsheet of alleged underpayments and other damages.
  4. The Defendant(s) must produce any existing documents describing compensation policies or practices.
  5. If the Defendants intend to assert an inability to pay, then they must produce proof of financial condition, including tax records, business records, or other documents demonstrating their financial status.

If the parties reach a settlement at the mediation, “they shall prepare a joint statement explaining the basis for the proposed settlement, including any provision for attorney fees, and why it should be approved as fair and reasonable,” in accordance with Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015).

The SDNY’s announcement comes on the heels of the effort by its sister court, the Eastern District of New York, to expand its mediation program for FLSA cases by “seeking mediators with substantial knowledge of the Fair Labor Standards Act (FLSA) to join the EDNY Mediation Panel.”

We fully expect the non-participating Judges within the SDNY, and other courts across the country, will be monitoring the effectiveness of the pilot program as well as the EDNY’s efforts to foster early mediation in FLSA cases.  If the program is successful, and the pace of new case filings remains high, other Districts may implement similar procedures.

Co-authored by Robert S. Whitman, Howard M. Wexler, and Meredith A. Berger

Seyfarth Synopsis: A district court judge within the Second Circuit held that, in light of Cheeks v. Freeport Pancake House, court or DOL approval is required for a valid dismissal of FLSA claims with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A).

Settling FLSA cases in the Second Circuit is becoming more and more difficult. In Cheeks v. Freeport Pancake House, the Second Circuit held that judicial or DOL approval is required for a valid dismissal of FLSA claims with prejudice. Cheeks is a controversial decision. The majority of courts have held that releases of FLSA rights have to be approved by a court or the DOL in order for the release to be valid, which often means that parties have to file otherwise confidential settlement agreements in publicly-available electronic court filing systems. A number of employer and plaintiffs’ counsel in many circuits have managed to settle FLSA cases like they settle other cases—that is, without filing settlement agreements publicly—by agreeing to dismissal with prejudice, which results in later-filed claims being subject to dismissal by claim preclusion principles even if not by a release. Cheeks limited that practice in the Second Circuit.

But the Cheeks court left open two related questions: whether parties may settle without court or DOL approval by dismissing the case without prejudice, and whether approval is needed for a dismissal with prejudice before the opposing party serves either an answer or a motion for summary judgment.

In Martinez v. Ivy League School, Inc., Judge Denis Hurley of the Eastern District of New York answered the second question, holding that under Cheeks, court or DOL approval is required for a valid pre-answer dismissal with prejudice.

As is fairly common, the parties in Martinez reached an early settlement after engaging in limited discovery before the defendant filed an answer. The plaintiff informed the court of the parties’ agreement and filed a notice of voluntary dismissal “with prejudice” pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), which states, “the plaintiff may dismiss an action without a court order by filing…a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” The plaintiff did not submit a copy of the parties’ agreement for the court’s approval or even describe the terms of the resolution of the case. Judge Hurley thereafter requested a copy of the settlement agreement and, in the alternative, issued an Order to Show Cause why court approval of the settlement is not required in light of Cheeks.

In response, the parties argued that court or DOL approval is not needed because Cheeks “is limited to cases where there has been a stipulated dismissal with prejudice…after the defendant has appeared in the case, thereby subjected itself to the jurisdiction of the court.”

Judge Hurley disagreed and held “the reasoning in Cheeks applies with equal force to the dismissal of an FLSA action with prejudice pursuant to Rule 41(a)(1)(A)(i).” Citing Cheeks, he said the FLSA is a “uniquely protective statute,” and as such, requiring judicial or DOL approval for a valid dismissal under Rule 41(a)(1)(A)(i) is consistent with its underlying purpose and helps eliminate potential abuse, such as exceedingly disproportionate attorneys’ fees payments. Accordingly, Judge Hurley ordered the plaintiff to “provide this Court with the specifics of the settlement to enable the Court to determine whether it is fair and reasonable.”

This decision, while not binding on any other court, underscores the need for litigants to give very careful consideration to the challenging issues raised by settlements in even the simplest of FLSA cases. As tempting as it may be for both sides to resolve cases with a handshake, basic settlement agreement, and one-line Stipulation of Dismissal with Prejudice, that practice is limited within the Second Circuit. Other circuits have not been as suspicious of the efforts of parties and their attorneys to amicably resolve cases.

Authored by Noah Finkel

As noted by this blog on several occasions, including most recently here, the U.S. Supreme Court and several appellate courts have grappled with the question of whether and to what extent a defendant facing a class or collective action can moot a case by offering a plaintiff complete relief under Rule 68 or in a settlement offer. Today the Supreme Court made clear in Campbell-Ewald Co. v. Gomez that an unaccepted offer of complete relief under Rule 68 does not render a case moot and thus does not end a purported class or collective action.

To be sure, the Court’s ruling narrows the grounds on which a defendant can obtain an early dismissal of a class or collective action by making a Rule 68 offer of complete relief to the class representative. As our colleagues explain here, the Court has now held that if a class representative rejects or declines to accept the offer, then “basic principles of contract law” mean that the offer has no force, and the class representative’s claim is not mooted. Indeed, under the express terms of Rule 68, an unaccepted offer of judgment expires after 14 days. (If an offer is accepted, then that may be a different story—particularly if the case is a collective action and not a class action, as discussed here.)

But does this make the mootness maneuver moot? No—and especially not in wage-hour cases, where in several classes of cases a defendant-employer readily can determine the maximum amount of a class representative’s claim for damages. As this blog has explained here, there is a better way for a defendant-employer to moot a class action, and that is by making a tender of complete relief to the plaintiff/class representative without reliance on Rule 68. Do not even reference a settlement agreement or release. Rather, make the tender unconditional. As many courts have held, if the plaintiff/class representative has been provided with all relief sought in the lawsuit for him or herself, and this is done before a class is certified or opt-in plaintiffs join a collective action, then there is no longer a live controversy between the parties on the merits and the court no longer has subject matter jurisdiction over the claim. Indeed, today’s opinion expressly noted that “[w]e need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff … .”

What about the attorneys’ fees that the plaintiff’s counsel incurred in bringing the putative class or collective action? Depending on the statute, those might not need to be included. Under the FLSA, for example, only a “prevailing plaintiff” is entitled to attorneys’ fees, and if a case is dismissed as moot, the plaintiff did not prevail.

A tender of complete relief is not for every case. There are several reasons why a defendant employer would not seek to moot a wage-hour case by making such a payment. Many regular-rate cases, failure to pay overtime or minimum wage claims, tip credit matters, certain off-the-clock theories, and other pleadings that contain specifics on the amount of alleged underpayments may be amenable to calculating a plaintiff’s maximum recovery, but calculating “complete relief” in many wage-hour cases may not be so clear. In other types of cases, the amount needed to pay complete relief may be calculable but exorbitant. And in all cases, there is a risk that other potential plaintiffs may be waiting in the wings, and a tender of full relief to the first current or former employee who files a claim can lead others to make similar claims—leading to an endless and expensive game of whack-a-mole. Ultimately, each employer in each case needs to decide the propriety of the mootness maneuver on a case-by-case basis, weighing the cost of an offer (or offers) of complete relief against the cost of defending a collective or class action. As Justice Kagan warned in her dissent in Genesis Healthcare v. Symczyk—the Supreme Court’s most recent foray into the mootness issue before today—“don’t try this at home.”

Authored by Alex Passantino

‘Twas the week before Christmas, 2-0-1-5
When the poetry elves on the blog came alive.
Crafting their rhymes with a purpose so clear:
Presenting the wage-hour gems of the year.

In January, for new regs in this year our breath bated.
Then for six painful months, we speculated and waited.
And just as we geared up to celebrate Independence,
Out came a proposal that will create more defendants.

With a salary level that for 10 years has been flat,
They looked at New York’s and said “higher than that.”
More than double the old; and then they got clever …
The proposed sal’ry level will increase for forever.

Anticipated changes to duties caused quite a fuss
When DOL said “If you’ve got some ideas, just tell us.”
Of the Department’s proposal, employers were understandably wary,
So we wrote down some ideas on how to make it less scary.

Nearly 300 thousand comments they have to review,
It will be late into next year before they are through.

Next up on the list of your wage-hour joy,
Are the efforts to change what it means to employ:
ContractorsJoint employment. Fissured industry.
Interns. The “third way” and gig economy.

Economic realityRight to control.
They’re integral to your business? Now you’re in a deep hole.
So many angles, it can drive you berserk.
As agencies and courts figure out what is “work.”

And if divergent decisions bring you a sense of elation,
Then please focus attention on class certification.
Approvals, denials, and some decerts, too.
No matter the side, there’s a case for you.

But as summer approached, there arose quite a stir,
A case that’d explain what the class cert rules were.
A Supreme explanation, o my-o, o me-o
We’d learn about class via Bouaphakeo.

They’ve argued, but there’s no decision, not yet,
And a limited ruling on records might be all that we get.
But the cases keep coming. Their numbers broke the charts.
Whether giant class actions or cases broken in parts.

And the response to those filings? The employers’ retort?
A wide range of ways to get them out of court.

Some cases get mooted. Some cases do not.
At Genesis’s open question, SCOTUS might take a shot.
Does an offer of judgment that’s not been accepted
Mean the plaintiff cannot proceed with his class as expected?

Increasingly used as a litigation life saver
Arbitration agreements with a class action waiver;
And when asked if state laws could class waivers prevent, yo,
The Supremes laid the smack-down to dear Sacramento.

With all of these options, it comes as a surprise then,
That one resolution keeps on getting the Heisman.
For reasons that many cannot understand,
To settle wage claims courts think they must hold your hand.

That’s our year in review, we whipped you right through it.
Next year? The new regs and a mad dash to review it.
But before 2015 joins the past’s ranks,
You keep on reading our blog, and for that we give thanks!


Co-authored by Robert S. Whitman and Howard M. Wexler

As we have noted in previous posts (most recently, here), courts have been paying increasingly close attention to the terms of FLSA settlements and, on occasion, refusing to approve agreements. Some parties have responded to this trend by entering into private settlements and filing a simple stipulation of dismissal with prejudice.

At least within the Second Circuit, this is no longer permitted. Court or DOL approval is now definitively required to obtain a dismissal with prejudice of FLSA claims.

Cheeks v. Freeport Pancake House Inc. was an FLSA case not unlike many others. The claims appear to have been standard-issue, and the parties reached a settlement shortly after the Initial Conference. The parties then filed a joint Stipulation of Dismissal with Prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). However, the District Judge, Joanna Seybert, refused to honor the stipulation. She ordered the parties to “file a copy of the settlement agreement on the public docket” and “show cause why the proposed settlement reflects a reasonable compromise of disputed issues rather than a mere waiver of statutory rights brought about by an employer’s overreaching.”

The parties instead asked the judge to certify the case for immediate review by the Second Circuit on the issue of whether FLSA actions are an exception to Rule 41(a)(1)(A)(ii)’s general rule that parties may stipulate to a dismissal with prejudice without the involvement of the court.

The Second Circuit heard oral argument on November 14, 2014, and because the two sides were in agreement that court approval should not be required, the court solicited the views of the DOL, which submitted a letter brief taking the position that the “FLSA falls within the ‘applicable federal statute’ exception to Rule 41(a)(1)(A), such that the parties may not stipulate to the dismissal of FLSA claims with prejudice without involvement of a court or the DOL.”

The court agreed with the DOL. It started its analysis by noting that this issue is a “blank slate” as “neither the Supreme Court nor our sister Circuits have addressed the precise issue before us.” It then explored the “differing results” reached by district courts within the Circuit, including Judge Brian Cogan’s 2013 decision holding that court approval is not required (see our post on that decision here) and Judge Dora Irizarry’s subsequent decision taking the opposite position.

Although the Second Circuit was “mindful of the concerns” articulated by Judge Cogan, it held that the FLSA is a “uniquely protective statute,” and as such, requiring judicial or DOL approval is consistent with its underlying purpose and helps eliminate potential abuse, such as exceedingly disproportionate attorney awards.

Given the importance of this issue to FLSA litigants, and the volume of FLSA lawsuits, Cheeks may not be the final word on this topic. Although there is no split among the Circuits (as the Second Circuit noted, it is the first to weigh in on this issue), the DOL’s participation in the case and the unsettled nature of the question suggest that the case may be ripe for en banc or Supreme Court review. For now, however, it is clear that within the Second Circuit, the parties must submit their privately negotiated settlement agreements to the court in order for the case to be dismissed with prejudice. This means, of course, that the agreement will be a public document, and the Cheeks opinion suggests (but does not discuss) that strict confidentiality provisions in FLSA settlements may not survive court scrutiny either.

The court did leave open the question of “whether parties may settle such cases without court approval or DOL supervision by entering into a Rule 41(a)(1)(A) stipulation without prejudice.” Since such a dismissal does not resolve claims or bar future lawsuits, there does not appear to be nearly the same (if any) judicial interest in monitoring them. But that is an issue the court may well take up sometime soon.

In the meantime, as we have advised before, litigants need to give very careful consideration to the challenging issues raised by settlements in even the simplest of FLSA cases. As tempting as it may be for both sides to resolve cases with a handshake, basic settlement agreement, and one-line Stipulation of Dismissal with Prejudice, the days of such an approach may be coming to an end.

Co-authored by John L. Collins and Brian Wadsworth

If I settle my employment lawsuit and release “all claims,” does that include wage-hour claims if the subject never came up? Last week, in Bodle, et al. v. TXL Mortgage Corporation, the Fifth Circuit said no.

As wage-hour practitioners know, the law in most circuits makes settlement of wage-hour claims a hassle, requiring either court approval or supervision by the Department of Labor for an enforceable release. In either case, the settlement terms are not confidential and may be easily be discovered.

But not so in the Fifth Circuit. In Martin v. Spring Break ’83 Productions, L.L.C., the Fifth Circuit held in 2012 that a private settlement reached over a bona fide dispute under the FLSA is enforceable. So in the Fifth Circuit, parties can settle wage-hour claims privately in most circumstances with enforceable releases, without having to seek court or government approval. But what if the case being settled was not a wage-hour case, and wage-hour issues never came up before the signing of a general release of “all claims?” In those circumstances, the Fifth Circuit ruled wage-hour claims were not waived.

TXL Mortgage Corporation (“TXL”) sued former employees Ambre Bodle and Leslie Meech in Texas state court for violation of their noncompetition covenants. The parties settled the litigation with a private settlement agreement and agreed final judgment. The settlement agreement said that Bodle and Meech “fully and completely release and discharge TXL . . . from any and all actual or potential claims, demands, actions, causes of action, and liabilities of any kind or nature . . . whether based in tort, contract (express or implied), warranty, deceptive trade practices, or any federal, state or local law, statute or regulation.”

But on the exact same day they settled the state court litigation, Bodle and Meech turned around and sued TXL and its president, William Dale Couch, in federal court under the FLSA, claiming they were owed overtime pay. The trial court dismissed the case on the basis of the release, relying on Martin.

In Martin, the Fifth Circuit found the private settlement agreement of FLSA claims enforceable, because it resolved a “bona fide dispute” between the parties over the number of hours worked. But unlike Martin, the state court action in Bodle was not about a wage-hour dispute at all. It was a dispute over restrictive covenants. The district court reasoned that because the topic of unpaid commissions arose during settlement discussions, that was close enough to FLSA-type claims to render the general release enforceable as to overtime claims. The Fifth Circuit said this was not good enough because there was no discussion of overtime claims during settlement talks, and thus no bona fide wage-hour dispute.

In the wake of Bodle, questions remain as to the enforceability of releases against FLSA claims in contexts other than settlement of FLSA suits. Would a release as part of the settlement of a race discrimination discharge lawsuit that specifically references FLSA claims be enforceable against such claims? What about a release in return for severance pay in a reduction-in-force situation if the issue of wage-hour claims were specifically addressed? Currently, Martin and Bodle do little to provide concrete answers.

Authored by Simon L. Yang

Final approval of a class action settlement sometimes isn’t so final.

At least that’s what the Ninth Circuit reminded Labor Ready Southwest, Inc. and a class of current and former employees earlier this week. On Tuesday, the Ninth Circuit vacated an order granting final approval of their class settlement of FLSA and California Labor Code claims and asked the Central District of California for a redo.

The Ninth Circuit on several occasions made clear that it was expressing no opinion on the ultimate fairness of the class settlement negotiated by the parties. So what was the issue?

Acknowledging that a district court has to engage in a “difficult balancing act” when considering both the strong judicial policy in favor of settlements and the district court’s fiduciary duty owed to absent class members, the Ninth Circuit remanded the case based on the “high procedural standard” for settlements that occur without a certified class.

The Ninth Circuit said the district court provided inadequate assurance that it considered the fairness of the settlement, by failing to sufficiently inquire about certain aspects of the settlement: (i) defendant agreed to a “clear sailing” arrangement (where it would not object to a certain fee request), (ii) class counsel would “receive a disproportionate distribution of the settlement,” and (iii) unclaimed settlement funds would revert back to the defendant.

Again, the Ninth Circuit reiterated that the existence of any one (or even all three) of the above-identified settlement terms “does not mean the settlement cannot still be fair, reasonable, or adequate” but that it “required the district court to examine them, and adequately to develop the record to support its final approval decision.”

So, next time you have a final approval hearing, consider whether you might want to slow down to ensure there’s no doubt about either the fairness—or finality—of your settlement.

Co-authored by Robert S. Whitman and Howard M. Wexler

As we have noted in previous posts (most recently here and here), courts have been paying closer attention to the terms of FLSA settlements and occasionally refusing to approve agreements where the amount of attorneys’ fees is too high compared to money going to the plaintiffs.

Add Flores v. Mamma Lombardi’s of Holbrook, Inc. to the list. In that case, which involved a class of over 4,000 employees, the parties asked Magistrate Judge Gary Brown of the Eastern District of New York to approve a $1.375 million settlement. The agreement called for an award of one-third of the settlement fund to class counsel, or approximately $445,500. Although he approved the overall settlement amount, Judge Brown rejected the fee application, instead finding the appropriate amount given the nature of the case and work performed to be $92,974.90—a reduction of more than 80%.

In rejecting the “princely sum” sought by Plaintiffs’ counsel, Judge Brown noted that in assessing the reasonableness of fee applications in class actions, courts must “act as a fiduciary who must serve as a guardian of the rights of absent class members.” Although Plaintiffs’ counsel argued that it is typical in FLSA settlements for counsel to receive 33% of the settlement, and cited several similar cases in which their firm was involved where judges approved such a percentage, Judge Brown was not convinced. He said counsel’s request “appears to be driven by plaintiffs’ counsel seeking high payouts at the expense of silent class members” and distinguished the other cases by suggesting that those courts failed to scrutinize the reasonableness of the fee applications.

Judge Brown held that the lodestar method was the more appropriate way to determine fees given the relatively small amount of time expended on the case and certain other questionable litigation tactics pursued by counsel during the litigation. He remarked that awarding fees on a percentage basis would “result in a windfall.”

Once settling on the lodestar method, Judge Brown carefully scrutinized the hours and rates proposed by Plaintiffs’ counsel and decided, based on the totality of factors, to apply an across-the-board 33% reduction in hours and to reduce most of their hourly rates to levels commonly approved by judges within the Eastern District.

This decision exemplifies the trend of courts taking a hard look at FLSA settlements, even when the parties agree on all aspects of the settlement. Parties settling FLSA cases should consider negotiating terms that address what happens if an agreed-upon provision of a settlement is rejected by the court—for example, a provision that attorneys’ fees requested but not approved belong to the defendant and reduce the total settlement amount rather than increase the amount paid to class members. If nothing else, parties who seek to obtain judicial approval of an FLSA settlement must be prepared to vigorously defend their terms to ever-increasing judicial scrutiny.

By Rob Whitman and Howard M. Wexler

As we have noted in previous posts, courts have been paying increasingly close attention to the terms of FLSA settlements and, on occasion, refusing to approve agreements where they are concerned by, for example, the amount of attorneys’ fees as compared to money going to the plaintiffs.

In Fujiwara v. Sushi Yasuda, Judge William H. Pauley III of the Southern District of New York jumped into the fray.  The parties reached an early class-wide settlement and made a joint motion for approval of the terms of the agreement.  As part of a $2.4 million settlement amount, plaintiffs’ counsel originally sought $800,000.  After Judge Pauley questioned that amount, counsel lowered their request to $600,000.

Like several other judges of late, Judge Pauley started his decision by highlighting the “explosion in FLSA litigation,” noting that 9% of all filings in the Southern District of New York are FLSA cases and the 400% increase in FLSA filings nationwide since 2001.  Turning to the issue of fees, Judge Pauley remarked:

A law is only effective to the extent it is enforced, and this increase litigation has been a positive development for many low-wage workers.  The same is true for their lawyers.  The danger to workers from underpayment by their employers is clear.  The danger of overpaying their lawyers is more subtle.

With respect to the request for $600,000 in fees, Judge Pauley commented that plaintiffs’ counsel “worked diligently” and that the quality of the representation they provided was “unquestionably high.”  He nonetheless reduced the requested award to $480,000 (20% of the settlement fund), finding that it was reasonable given the facts of the case, the risk of litigation, and previously approved fee awards in the SDNY.

In a not-so-subtle message to the plaintiffs’ bar as well as his judicial brethren, Judge Pauley stated that “there is a reason to be wary of much of the caselaw awarding attorney’s fees in FLSA cases in [the Second] Circuit” because “many of the authorities cited by Plaintiffs’ counsel in support of their fee application are in fact proposed orders drafted by the class action plaintiffs’ bar and entered with minimal, if any, edits by judges.”  Under these circumstances, he said, it is “no wonder that caselaw is so generous to plaintiffs’ attorneys” — since “by submitting proposed orders masquerading as judicial opinions, and then citing to them in fee applications, the class action bar is in fact creating its own caselaw on the fees it is
entitled to.”

Judge Pauley held that “approval of class action settlements and fee applications [in FLSA cases] is precisely where judicial scrutiny, not judicial deference, is most needed.”  His words echo those uttered recently by Seventh Circuit Judge Richard Posner in a non-FLSA case.  Rejecting a proposed settlement under the Fair and Accurate Credit Transactions Act, he stated:  “The judge asked to approve the settlement of a class action is not to assume the passive role that is appropriate when there is genuine adverseness between the parties rather than the conflict of interest recognized and discussed in many previous class action cases, and present in this case.”

Judge Pauley also gave particular scrutiny to the “service awards” provided as part of the settlement.  The agreement called for $20,000 to each of the six class representatives, all of whom sat for depositions, executed declarations, produced documents, and otherwise assisted in the prosecution of the case.  Nonetheless, the court rejected the awards and struck them from the settlement, holding that these individuals already received “a backdoor service award” because the settlement fund allocated them more money in light of their greater number of shifts worked.

These decisions again highlight the growing trend of courts taking a hard look at FLSA settlements, even when the parties agree on all aspects of the settlement.  Submission for approval also usually requires the court to make the terms of the settlement publicly available on the docket, which raises a host of additional concerns for employers.  Accordingly, if the parties seek to obtain judicial approval of an FLSA settlement, both sides should be prepared to vigorously defend their terms.

By Rob Whitman and Howard M. Wexler

As we have noted in previous posts, courts have been paying increasingly close attention to the terms of FLSA settlements and, on occasion, refusing to approve agreements where they are concerned by, for example, the amount of attorneys’ fees as compared to money going to the plaintiffs.

One judge who has swum against the tide is Brian Cogan in the Eastern District of New York.  In a 2013 decision, he held that court approval of a settlement is not required for dismissal of an FLSA case since, in his opinion, “Ratcheting up the legal process to achieve some Platonic form of the ideal of judicial vindication did not seem necessary to accomplish any purpose under the FLSA.”  But other courts have disagreed with Judge Cogan’s decision, including many of his judicial brethren within the Second Circuit, so parties have continued to submit settlement agreements for court approval rather than agreeing to a private resolution and filing a boilerplate Stipulation of Dismissal out of an abundance of caution.

Encalada v. Baybridge Enterprises Ltd. was an FLSA case in which Judge Cogan was asked to approve the amount of attorneys’ fees after the parties settled pursuant to an accepted Rule 68 Offer of Judgment.  After noting that, “unlike most courts” he does not require a fairness hearing in connection with the settlement of an FLSA lawsuit, Judge Cogan nonetheless had to review the nature of the case and the reasonableness of fee application.  Before turning to the fees, Judge Cogan observed that “there is no other category of civil filings that has increased at a rate anywhere near that for cases brought under the FLSA.”  He then held that the requested fees were unreasonable given that the case was a fairly straightforward FLSA matter that did not involve any “complex issues like exemptions, coverage, collective action notification, classification, or statutory interpretation.”  Accordingly, Judge Cogan reduced the fee award by substantially cutting the attorney’s hourly rate.

Judge Cogan refused, however, to reduce the number of hours claimed by plaintiff’s counsel.  The employer asserted that “plaintiff unreasonably failed to settle early, effectively churning the case to enhance his legal fee,” but the judge was not persuaded, stating that “it is difficult for a court [to] tell which side, if either, is at fault for not settling earlier, as neither party admits to unreasonableness.”

Plaintiff has already filed a Notice of Appeal of Judge Cogan’s decision to the Second Circuit.  Thus, while the employer thought it had obtained finality as a result of the acceptance of the Offer of Judgment, it now has to litigate the fee issue and incur further costs as a result.

This decision again highlights the risks of submitting FLSA settlement agreements for approval:  the court may find some (or all) of its terms to be unreasonable and either modify them or send counsel back to the drawing board.  Submission for approval also usually requires the court to make the terms of the settlement publicly available on the docket, which raises a host of additional concerns for employers.  As such, the question of whether to seek court approval in any given case remains.  Employers may no longer assume that every FLSA settlement should or must be submitted for public approval, and if they do submit settlements for approval, should be prepared to vigorously defend their terms.