Frisby v. Sky Chefs, Inc.
| Decision Date | 26 August 2021 |
| Docket Number | Civil Action 19-cv-07989 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | LARRY FRISBY, individually and on behalf of all others similarly situated, Plaintiff, v. SKY CHEFS, INC., Defendant. |
Jeffrey Grant Brown One of Plaintiffs' Attorneys
Matthew F. Kennelly Judge
UNOPPOSED MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR FINAL APPROVAL OF THE PARTIES' CLASS AND COLLECTIVE ACTION SETTLEMENT
This Court should grant final approval of the Parties' Class Action Settlement Agreement (“Settlement Agreement” or “Agreement”) because it provides a fair, adequate and reasonable resolution of the wage and hour claims for all class members. Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 652 (7th Cir. 2005). The Settlement is also a fair and reasonable resolution of a bona fide dispute under the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (the “FLSA”). The “non-claims made” settlement provides an average compensation of approximately $125.00 each to 2, 184 Class Members. Each Class Member is receiving a minimum of $25.00, and all class members receiving more than the minimum payout will receive payment based upon the number of weeks they were employed by Defendant during the Class Period. The Class Members are receiving these settlement payments in exchange for releases that are limited to wage and hour claims, and no Class Members have objected to the Settlement. Only one Class Member has opted out of the Settlement, demonstrating that the Class Notice communicated properly to the Class Members the process for doing so.
For these reasons, and as further discussed below, the Court should grant Plaintiff's Unopposed Motion for Final Approval, grant final certification, for settlement purposes, of the Class under Rule 23(b)(3) of the Federal Rules of Civil Procedure and 29U.S.C. § 216(b); approve the Settlement Agreement and its plan of allocation of the settlement proceeds as a final, fair, reasonable, adequate and binding release of all claims as set forth in Section III.3.c of the Settlement Agreement by all Class Members who have not timely opted out; approve the Settlement Agreement as a final, fair, reasonable, adequate and binding General Release of all claims as set forth in Section III.3.b of the Settlement Agreement by the Class Representative; provide that all Class Members who negotiate a settlement check irrevocably consent to join and opt into the FLSA collective action in this Action, and authorize Class Counsel to file with the Court their consents to join; and dismiss the Action with prejudice. The Court should also approve Class Counsel's request for an award of attorneys' fees and costs and for the Service Award to be made to the Class Representative. The Proposed Final Approval Order and Judgment is attached hereto as Exhibit 1.
The details of the proceedings up through the Parties' Motion for Preliminary Approval of the Parties' Class Action and Settlement Agreement and Release are set forth in that unopposed motion, Doc. # 53, and are incorporated by reference herein. The Court issued an Order on May 20, 2021 that preliminarily approved the Settlement Agreement. The Order also approved the form and content of the proposed Notice of Class Action Settlement (“Notice”); set the schedule for the filing of objections; and set a hearing (“the Fairness Hearing”) for September 2, 2021 at 9:30 AM to determine whether to grant final certification of the Settlement Class, and the FLSA collective action, and final approval of the Settlement Agreement and plan of allocation, and final judgment dismissing the Action with prejudice; and to consider Class Counsel's request for an award of attorneys' fees and costs; and for a Service Award to be made to the Class Representative. The Court indicated that it will also consider and rule upon all timely filed and served objections from any Class Members.
The Court's Order preliminarily approving the Settlement incorporated the Parties' agreed definition of the settlement class under Fed.R.Civ.P. 23 and 29 U.S.C. §216, for settlement purposes only, and preliminarily and conditionally certified the following Settlement Class under Rule 23 and 29 U.S.C. § 216(b):
All current and former non-exempt hourly paid employees who are or were employed by Sky Chefs, Inc. in Illinois for at least seven days at any point from December 5, 2016 to May 20, 2021, who have not excluded themselves from this Action. The term “Class Members” includes the Class Representative and all Opt-in Plaintiffs.
The Parties' Settlement Agreement provides a total gross settlement amount of $420, 000.00, inclusive of attorneys' fees, expenses and costs, and a service award. Defendant will separately pay all settlement administration costs. Approximately $276, 000.00 of the gross settlement amount will be paid to the Class Members. Each Class Member's estimated share of the settlement fund will be calculated based on an equitable formula that considers the number of weeks Defendant employed the Class Member during the period December 5, 2016 through May 20, 2021 (the “Class Period”). The Settlement Payment of each Qualified Class Member who worked for Sky Chefs for no more than eighteen weeks shall be $25. Payments for Class Members other than those receiving the $25 minimum payment, shall be calculated on a pro rata basis based on a percentage, calculated by dividing a numerator equaling the number of weeks that the individual was employed by Sky Chefs in a non-exempt hourly paid position during the Class Period by a denominator equaling the sum of all individual numerators. The release to which Class Members will be bound only releases wage and hour claims that were or could have been brought in this case under the facts alleged in the Complaint, including such claims under the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. (the “IMWL”) and the City of Chicago Minimum Wage Ordinance, Chapter 1-24, Section 1-24-020, et seq. (the “Ordinance”), and all other state and local laws. Class Members will release their federal FLSA claims only if they negotiate their settlement checks. The checks will expressly advise Class Members that by signing or negotiating the checks, they are opting into the FLSA collective action and waiving their FLSA claims.
Pursuant to the Court's conditional certification of the settlement classes and preliminary approval of the Settlement Agreement, and pursuant to the terms of the Parties' Settlement Agreement, on or about May 27, 2021, Simpluris, Inc., the Class Administrator, (“Simpluris”), mailed 2, 185 Notices to those person identified on the Class List provided by Defendant. The Declaration of Christina Fowler, a Principal at Simpluris, dated August 18, 2021, attached as Exhibit 2, confirms that initial mailing of the Notice; that 231 of those Notices were returned by the U.S. Postal Service; and, after skip-tracing those returns, that Simpluris was able to re-mail a total of 206 of those Notices, with only 25 of the Notices returned as undeliverable. Ultimately, Simpluris will make payment to 2, 184 class members. It has received a single valid opt-out; no other attempted opt-outs; and no objection forms in response to all mailings. The Administrator has indicated that the total average recovery under the settlement is approximately $126.26 per person, and the total highest recovery is approximately $317.30. See, Exhibit 2.
Neither Plaintiffs, Plaintiffs' counsel, Defendant, nor Defendant's counsel are aware of any objection to this settlement, timely or otherwise. (See, Exhibit 3, 2nd Brown Dec., ¶ 6).
As a matter of public policy, federal courts strongly favor and encourage settlements, particularly in class actions and other complex matters, where the inherent costs, delays, and risks of continued litigation might otherwise overwhelm any potential benefit the class could hope to obtain. Kaufman v Am. Express Travel Related Services, Co., 2016 WL 806546, at *7 (N.D. Ill. Mar. 2, 2016), appeal dismissed (July 5, 2016) quoting Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996). The proposed settlement, therefore, is the best vehicle for Plaintiff and the Class Members to receive the relief to which they are entitled in a prompt and efficient manner.
A court may approve a Rule 23 class action settlement that binds class members if, after proper notice and a public hearing, the court determines that the proposed settlement is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23 (e)(3). Under Seventh Circuit precedent, a district court must, in evaluating the fairness of a settlement, consider “the strength of plaintiffs' case compared to the amount of defendant's settlement offer, an assessment of the likely complexity, length and expense of the litigation, an evaluation of the amount of opposition to settlement among affected parties, the opinion of competent counsel, and the stage of the proceedings and the amount of discovery completed at the time of settlement, and whether the settlement negotiation is ‘intense, vigorous, and at arm's length.'” Synfuel Techs., Inc. v. DHL Express (USA) Inc., 463 F.3d 646, 653 (7th Cir. 2006)(quoting Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996)) (“Synfuel Factors”).
This Court has already performed that analysis in its examination of our motion seeking preliminary approval,...
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