Rosenbohm-Motion-Approval.Pdf
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION NEIL ROSENBOHM, on behalf of himself ) CASE NO.: 2:17-CV-00731-ALM and all others similarly situated, ) ) JUDGE ALGENON L. MARBLEY Plaintiff, ) ) MAGISTRATE JUDGE VASCURA vs. ) ) CELLCO PARTNERSHIP ) JOINT MOTION FOR APPROVAL OF d/b/a Verizon Wireless ) SETTLEMENT AND STIPULATION OF ) DISMISSAL WITH PREJUDICE Defendant. ) TABLE OF CONTENTS I. SUMMARY OF ARGUMENT ...........................................................................................1 II. FACTUAL AND PROCEDURAL BACKGROUND.........................................................3 A. The Lawsuit .............................................................................................................3 B. Negotiation of The Settlement .................................................................................5 C. The Settlement Terms ..............................................................................................6 III. THE PROPRIETY OF APPROVAL ...................................................................................7 A. The Court Should Approve the FLSA Settlement. ..................................................7 a. The Proposed Settlement Is the Product of Contested Litigation. ...............8 b. The Proposed Settlement Reflects a Fair and Reasonable Resolution of a Bona Fide Dispute Between the Parties. ............................8 i. Bona Fide Dispute Between the Parties Over Liability. ..................8 ii. The Proposed Settlement Is Fair and Reasonable. ...........................9 1. There is no risk of fraud or collusion. ..................................9 2. This is a complex case with high expenses and the duration could last many years. .........................................10 3. The Parties have engaged in substantial discovery. ...........11 4. There is no guarantee of success on the merits. .................12 5. Counsel and Named Plaintiff Rosenbohm support the settlement and there are no absent members. ...............13 6. The Settlement distributions are fair, reasonable and adequate. ............................................................................13 B. The Requested Service Awards Should Be Approved. .........................................15 C. Plaintiffs’ Counsel’s Attorneys’ Fees and Litigation Costs Are Reasonable and Should Be Approved. ......................................................................................16 a. Plaintiffs’ Requested Attorney’s Fees in the Amount of $650,000 Are Reasonable. .........................................................................................16 i. Value of the Benefit Provided........................................................19 i ii. Society’s Interest in Rewarding Attorneys ....................................19 iii. Whether Services Were Undertaken on Contingent-Fee Basis ...............................................................................................20 iv. Value of Services Rendered on an Hourly Basis ...........................20 v. Complexity of the Litigation ..........................................................22 vi. Professional Skill and Standing of Counsel ...................................24 b. Plaintiff’s Litigation Costs Should Be Approved. .....................................24 D. The Court Should Approve the Settlement Administrator’s Fee ...........................25 IV. CONCLUSION ..................................................................................................................25 ii I. SUMMARY OF ARGUMENT The Parties, Neil Rosenbohm (“Named Plaintiff Rosenbohm”) and Cellco Partnership d/b/a Verizon Wireless (“Defendant” or “Verizon Wireless”) respectfully move this Honorable Court to review the Parties’ Settlement Agreement (the “Settlement”) and for an Order approving the Settlement as fair and reasonable. The proposed settlement will resolve bona fide disputes involving off-the-clock work allegations against Verizon Wireless under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as well as Ohio wage-and-hour statute. Plaintiff asserted that Defendant unlawfully failed to pay its hourly, non-exempt employees, including Plaintiff and other Solution Specialists, for all hours worked. Specifically, Plaintiff alleged that Solutions Specialists were required by Defendant to perform unpaid work off-the-clock at the end of their shifts. The Parties respectfully submit that the proposed Settlement is fair and reasonable and satisfies the criteria for approval under § 216(b) of the FLSA. The Settlement was achieved during arms-length negotiations among the Parties, conducted by experienced counsel, and reached on March 2, 2020 after a full-day mediation in Chicago, Illinois, with Michael Dickstein, a nationally- recognized and well-respected mediator of FLSA collective actions. The settlement documents submitted for approval or entry by the Court consist of the following: Exhibit 1: Settlement Agreement Exhibit 1A: List of Plaintiffs Dismissed With Prejudice Exhibit 1B: List of Individuals to Be Dismissed Without Prejudice Exhibit 1C: List of Individuals to Be Dismissed With Prejudice Exhibit 1D: List of Opt-ins who are Settlement Class Members 1 Exhibit 1E: Individual Release Agreement for Neil Rosenbohm Exhibit 1F: [Proposed] Order Approving Settlement and Dismissal with Prejudice Exhibit 1G: Timeline of Proposed Procedure for Settlement Administration Exhibit 2: Declaration of Counsel Chastity L. Christy Exhibit 3: Declaration of Counsel Michael Fradin Exhibit 4: Declaration of Counsel Douglas M. Werman Pursuant to Local Rule 7.2(a)(3), the Parties provide this succinct, clear, and accurate summary of the Memorandum, as it exceeds twenty pages. The Memorandum starts with a summary of the factual and procedural background of this case, supported with reference to the record and the declaration of Plaintiffs’ Counsel Chastity L. Christy. See Part II, below. This background section describes the motion practice, discovery process, and settlement negotiations that resulted in the Parties’ agreement to resolve this matter. This section also describes the specific terms of the Parties’ Settlement. Part III of the Memorandum describes the applicable standard for approval of a settlement under the FLSA. A Court must determine whether the settlement was reached as a result of contested litigation and whether it is a fair and reasonable resolution of a bona fide dispute. Part III(A) addresses why this litigation was contested, why the dispute was bona fide, and why the resolution is fair and reasonable. The latter inquiry involves seven factors in the Sixth Circuit: (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. See UAW v. General Motors Corp. , 497 F.3d 615, 626 (6th Cir. 2007). 2 Part III(A)(b)(ii) describes why this settlement is fair and reasonable under this multi-factor test. Part III(B) describes the service award contemplated in the Settlement and justifies this award in light of the services provided by Named Plaintiff Rosenbohm in this suit. Part III(C) describes Plaintiffs’ Counsel’s request for attorney’s fees and litigation costs. This section discusses the general practice in Ohio of awarding one-third of the fund in an FLSA settlement. This section also discusses the six factors the Sixth Circuit identified in Ramey v. Cincinnati Enquirer, Inc. , 508 F.2d 1188, 1196 (6th Cir. 1974) for analyzing a request for attorneys’ fees: (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. Finally, Part III(D) describes the Parties’ request for approval of the costs of a third-party administrator. II. FACTUAL AND PROCEDURAL BACKGROUND A. The Lawsuit On August 19, 2017, Named Plaintiff Neil Rosenbohm filed this Lawsuit as a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and, on November 9, 2017, filed his Amended Complaint individually, and on behalf of other non-exempt Solutions Specialists who worked in the Company’s retail stores nationwide, asserting off-the-clock work allegations against Verizon Wireless under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the Ohio Minimum Fair Wage Standards Act (“OMFWSA”), R.C. 4111.03. (Dkt. No. 1.) Specifically, Named Plaintiff Rosenbohm alleged that he and other similarly-situated employees were required by Defendant to perform unpaid work off-the-clock at the end of their 3 shifts, including, but not limited to: (a) straightening up the store; (b) preparing a checklist for the next day; (c) cleaning the store’s office; (d) logging out of workstations; (e) ensuring workstations are cleaned; (f) sending out nightly sale numbers to the district manager; (g) waiting for another representative who was with a customer; and (h) setting store alarms. Id. On January 12, 2018, Named Plaintiff Rosenbohm filed a Motion for Conditional Certification, Expedited Opt-in Discovery,