SUSIE MORGAN, District Judge.
Before the Court is the Joint Motion to Approve Settlement and for Dismissal filed by named Plaintiffs Terry Catherine and Jamil Lee and Defendants SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux.
On August 7, 2017, named Plaintiffs Terry Catherine and Jamil Lee brought this collective action against Defendants SureTemps, LLC (SureTemps); Full Force Staffing, LLC (Full Force); and Metro Service Group, Inc. (Metro) pursuant to the Fair Labor Standards Act of 1938 ("FLSA").
Defendants Exclusive, SureTemps, TSM, and Full Force retained Plaintiffs to work as "hoppers" aboard garbage trucks owned by Metro Service.
Plaintiffs allege they were paid a flat daily rate for their employment, regardless of the number of hours they worked.
Beyond their personal claims, named Plaintiffs bring this FLSA claim as a collective action, pursuant to 29 U.S.C § 216(b), on behalf of all persons in Louisiana, who, since July 2014, previously worked or currently work for Defendants as hoppers at a flat daily rate of pay but were not paid the federal minimum wage for every hour they worked or were not paid overtime for all hours worked in excess of 40 per week.
Defendants deny all liability,
On March 28, 2018, the Court conditionally certified Plaintiffs' FLSA Collective Action.
On July 16, 2019, the parties filed the instant Joint Motion to Approve Settlement and for Dismissal.
The Court "must approve any settlement reached by the parties which resolves the claims in this action brought under [29 U.S.C. § 216(b)]."
When deciding whether a bona fide dispute exists, the Court considers whether there is a "genuine dispute as to the Defendant's liability under the FLSA,"
The Court finds a bona fide dispute exists between Plaintiffs and Defendants with regard to whether Defendants violated the FLSA. Plaintiffs allege they were not paid overtime wages or minimum wage as required by the FLSA.
In determining whether a negotiation is fair and reasonable under the FLSA, courts are guided by Reed v. General Motors Corporation, in which the Fifth Circuit enumerated factors to determine whether a settlement is fair in a class action under Rule 23 of the Federal Rules of Civil Procedure.
With respect to the "fraud or collusion" factor, there are several presumptions that guide a court's determination of whether a settlement is fair and reasonable. "[T]here is a strong presumption in favor of finding a settlement fair,"
Under the Settlement Agreement in this case, Plaintiffs will receive money in accordance with the shifts they worked, and Plaintiffs' counsel will receive significant attorneys' fees and costs.
The instant case has been pending for more than two years.
A court will consider how much formal discovery has been completed for two reasons: (1) "extensive discovery [by the parties indicates] a good understanding of the strengths and weaknesses of their respective cases and hence that the settlement's value is based upon such adequate information," and (2) "full discovery demonstrates that the parties have litigated the case in an adversarial manner and . . . settlement is not collusive but arms-length."
In this case, the parties represent Defendants have provided Plaintiffs with "extensive data and documents concerning the Plaintiffs and the FLSA Collective Action Members and their claims, engaged in settlement negotiations over a period of months, and have now reached [an] agreement."
It is uncertain at this point whether Plaintiffs would be successful. Defendants deny Plaintiffs' allegations and provide a series of affirmative defenses such as the untimeliness of the suit, the impropriety of a collective action in this case, and a statutory bar to recovery.
Given the unresolved disputes between the parties and the stage at which this litigation remains, the Court finds it is unclear whether and to what extent Plaintiffs would be meritorious. This factor indicates the settlement is fair and reasonable.
Under the Settlement Agreement, Defendants will pay individual plaintiffs according to the harm they allegedly suffered as a result of unpaid overtime wages or wages below minimum wage.
The parties in this case jointly seek judicial approval of a settlement agreement that addresses a bona fide dispute and was negotiated in good faith.
All six of the forgoing factors indicate the settlement in this case is fair and reasonable. Accordingly, the Court finds the settlement is fair and reasonable.
For the foregoing reasons,
IT IS HEREBY STIPULATED AND AGREED by and between SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux (collectively referred to as "Defendants"), and Plaintiffs Terry Catherine and Jamil Lee, on behalf of themselves and the FLSA Collective Action Plaintiffs (collectively referred to as "Plaintiffs") (Plaintiffs and Defendants referred to, collectively, as the "Parties"), as set forth below:
This Confidential Settlement Agreement (with the associated Exhibits) is made and entered into by and among the Plaintiffs, on behalf of themselves and each of the FLSA Collective Action Members (defined below), with the assistance of Class Counsel (defined below), and Defendants, with the assistance of their undersigned counsel. The Confidential Settlement Agreement is intended by the Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims (as defined herein) upon and subject to the terms and conditions hereof.
On or about August 7, 2017, the Plaintiffs commenced the above-captioned purported collective action against Defendants in the United States District Court for the Eastern District of Louisiana (the "Action"). In this Action, the Plaintiffs alleged on behalf of themselves and others alleged to be similarly situated that Defendants failed to properly pay them for overtime hours worked. Defendants provided Plaintiffs' counsel with extensive data and documents concerning the Plaintiffs and the FLSA Collective Action Members and their claims, engaged in settlement negotiations over a period of months, and have now reached the agreement reflected in this Confidential Settlement Agreement.
Defendants have denied and continue to deny any and all liability or wrongdoing of any sort with regard to all of the claims alleged in this action, and make no concessions or admissions of liability of any sort. Defendants also have asserted and continue to assert that they are not joint employers and thus cannot be liable for the claims asserted in this action. Nonetheless, Defendants have concluded that further litigation of this Action would be protracted, distracting, and expensive, and that it is desirable that the Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Confidential Settlement Agreement. Defendants also have taken into account the cost, uncertainty, and risks inherent in any litigation. Defendants thus have determined that it is desirable and beneficial to settle the Action in the scope, manner, and upon the terms and conditions set forth in this Confidential Settlement Agreement.
Plaintiffs, on behalf of themselves and the FLSA Collective Action Members, and Class Counsel believe that their claims have merit. However, Plaintiffs, on behalf of themselves and the FLSA Collective Action Members, and Class Counsel recognize and acknowledge the expense and duration of continued proceedings necessary to prosecute their claims against Defendants through discovery, decertification briefing, summary judgment briefing, trial, and any appeals. Plaintiffs, on behalf of themselves and the FLSA Collective Action Members, and Class Counsel also have taken into account the uncertain outcome and the risk of any litigation, as well as the difficulties and delays inherent in all litigation. Based upon their investigation and evaluation, Plaintiffs, on behalf of themselves and the FLSA Collective Action Members, and Class Counsel have determined that the settlement set forth in the Confidential Settlement Agreement is in the best interests of Plaintiffs and the FLSA Collective Action Members.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiffs (for themselves and the FLSA Collective Action Members), and Defendants, each with the assistance of its respective counsel of record, that, as among the Parties, this Action and the Released Claims shall be finally and fully compromised, settled, and released, and the Action shall be dismissed with prejudice, as to the Plaintiffs and FLSA Collective Action Members (defined below), upon and subject to the terms and conditions of this Confidential Settlement Agreement.
1.1 "Action" means the collective action filed on August 7, 2017, in the United States District Court for the Eastern District of Louisiana entitled Catherine v. SureTemps, LLC, et al., Action No. 17-7561.
1.2 "Approval Order" means an Order granting approval of this Confidential Settlement Agreement, dismissing the Action with prejudice and approving the release of Released Claims (defined below), and authorizing the Parties, through Jones Walker LLP, to send the Notice of Settlement and Claims Release Form to the FLSA Collective Action Members, in the same or substantially the same form as Exhibits A and B, respectively, to this Confidential Settlement Agreement.
1.3 "FLSA Collective Action Member" means those persons who filed a Notice of Consent to Join in this action.
1.4 "Class Counsel's Fees and Costs" means One Hundred Thousand and Zero Cents ($100,000.00) to be paid to Class Counsel for attorneys' fees and litigation costs and expenses incurred by Class Counsel to be paid from the Maximum Settlement Amount to Class Counsel, all subject to approval by the Court.
1.5 "Class Counsel" means Jody Forester Jackson, Mary Jackson and Jackson Jackson.
1.6 "Dismissal Date" means the date upon which the Approval Order is entered.
1.7 "Distribution Amount" means the Maximum Settlement Amount less Class Counsel's Fees and Costs.
1.8 "Effective Date" means the date on which the Approval Order becomes Final.
1.9 "Incentive Bonus" means the $5,000.00 Defendant has agreed to pay each Named Plaintiff due to the time spent by these persons actively participating in this litigation.
1.10 "Individual Settlement Amount" means the amount of the Distribution Amount allocated to be claimed by each FLSA Collective Action member based on a plan of allocation jointly developed by the Parties that accounts for each individual's compensation, length of employment, and certain fees that may have been incurred. The Individual Settlement Amount owed to each Claimant is set forth on the chart attached hereto as Exhibit C.
1.11 "Last Known Address" means the most recently recorded mailing address for a FLSA Collective Action Member from the Consent Form and/or data that is reasonably available to Class Counsel. In the event a Notice is returned as undeliverable, Jones Walker LLP will request the last known telephone number from Class Counsel for the purpose of sending a text message regarding the need to complete a Claims Release Form and to request an address. Jones Walker LLP will then forward the Notice to the mailing address provided by the individual. Defendants will be deemed to have fulfilled its obligations to locate FLSA Collective Action Members once this process is completed. Neither the Defendants nor Jones Walker LLP will be required to take any further steps to locate FLSA Collective Action Members.
1.12 "Maximum Settlement Amount" means the maximum amount that Defendants shall pay under the terms of this Confidential Settlement Agreement, which is the gross sum of Four Hundred Ten Thousand Nine-Hundred Ninety-Nine Dollars and Eighty-Seven Cents ($410,999.87)
1.13 "Named Plaintiffs" means Terry Catherine and Jamil Lee.
1.14 "Claims Release Form" means the form through which FLSA Collective Action Members must submit to obtain payment under the Confidential Settlement Agreement, in the same or substantially the same form as Exhibit B.
1.15 "Notice of Settlement" means the notice to be sent to FLSA Collective Action Members advising them that this matter has settled and stating what the FLSA Collective Action Member needs to do to receive payment under the terms of this Confidential Settlement Agreement and enclosing all documents to be completed, along with a self-addressed, stamped envelope, for that FLSA Collective Action Member to be paid, in the same or substantially the same form as Exhibit A to this Confidential Settlement Agreement.
1.16 "Notice Mailing Deadline" means fifteen (15) days after the Court enters the Approval Order.
1.17 "Notice Mailing Date" means the date Jones Walker LLP mails the attached Notices to the FLSA Collective Action Members,
1.18 "Notice Response Deadline" means 90 days after the Notice Mailing Date.
1.19 "Released Claims" means, collectively, any and all real, potential, known, unknown, or undiscovered claims, including but not limited to any and all claims for: any and all unpaid straight, overtime, premium, or other wages; and any and all wage and hour and payrelated claims, including but not limited to under the Fair Labor Standards Act, the Louisiana Wage Payment Law ("LWPL"), La. Rev. Stat. Ann. §§ 23:631 et seq., or any other federal, state, or local law, statute, rule, ordinance regulation, constitution, court-created/common law, and/or agreement (collectively, "Wage and Hour claims") and including but not limited to any and all claims associated with or related to such Wage and Hour claims, including claims for equitable or declaratory relief, liquidated damages or other penalties, benefit plan contributions, credits or contributions to plans, policies, or arrangements described in 2.3.3; interest; or other amounts; any and all joint employment claims; any and all claims regarding alleged inducement to enter into this Stipulation; which were brought or could have been brought in any case or proceeding, including this Action, by any FLSA Collective Action Member against one or more of the Released Parties.
1.20 "Released Parties" means collectively SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux, and all of their past, present and future parents, subsidiaries, divisions, joint ventures, and affiliates; each of their predecessors, successors, and assigns; and all of their past, present and future owners, directors, officers, employees, contractors, partners, members, principals, underwriters, insurers, customers, shareholders, attorneys, accountants, auditors, legal representatives, or agents.
2.1 Settlement Consideration.
2.1.1 All of the settlement consideration, including the costs of claims administration, shall be paid by Defendants. The maximum amount that Defendants shall pay under the terms of this Confidential Settlement Agreement is the Maximum Settlement Amount.
2.1.2 The Maximum Settlement Amount will be used to pay:
2.1.2.1 Class Counsel's Fees and Costs;
2.1.2.2 The Individual Settlement Amounts of the Claimants; and
2.1.2.3 The Incentive Bonuses to the Named Plaintiffs, subject to the terms, conditions, and procedures set forth herein.
2.1.3 The Parties understand and agree that any unclaimed Individual Settlement Amounts shall not be paid by Defendants, who will retain those funds.
2.1.4 Defendants agree that they will cease forever paying workers in the manner complained of in the Complaint and Amended Complaint and will pay overtime in accordance with the provisions of the Fair Labor Standards Act, 29 U.S.C 201, et seq.
2.2 Consideration to Claimants
2.2.1 Conditioned on satisfaction of all other requirements imposed by this Stipulation, Jones Walker LLP shall send payment from Defendants to each Claimant payment as set forth in Section 2.7. The Named Plaintiffs shall be paid as provided for in Section 2.9.
2.2.2 Individual Settlement Amounts shall be apportioned pursuant to the payment schedule attached hereto as Exhibit "C."
2.2.3 The Individual Settlement Amounts are based upon the following:
2.2.3.1 Each week in which a Claimant worked 5 shifts, he or she was allocated $54.19.
2.2.3.2 Each week in which a Claimant worked 6 shifts, he or she was allocated $155.56.
2.2.3.3 Each week in which a Claimant worked 7 shifts, he or she was allocated $190.05.
2.2.3.4 Each week in which a Claimant worked 8 shifts, he or she was allocated $283.87.
2.2.3.5 Each week in which a Claimant worked 9 shifts, he or she was allocated $354.55.
2.2.3.6 If claimant only worked a maximum of 4 shifts per week during the three-year time period, he or she was allocated $19.05.
2.2.3.7 If a Claimant worked more than 4 shifts per week during this time, in addition to the allocation of the amounts set forth above, they were allocated $9,76 for every 4 shift workweek.
2.2.3.8 Any Claimants who would not have received any overtime compensation due to the time worked post-April 2018 being excluded were awarded damages at the rates set forth above.
2.2.3.9 Any Claimants who opted in had claims that were prescribed and/or never worked in excess of 3 shifts per week during the applicable time period, per Defendants' payroll records, will not receive payment under this Confidential Settlement Agreement.
2.2.4 Any amount paid to the Claimants shall not create any credit or any basis to affect, change, or increase in any way the calculation of benefits provided under any pension, retirement, retirement savings, or any other benefit, pension, or other compensation plan, policy, program or arrangement.
2.3 Taxes
2.3.1 For income and payroll tax purposes, the Parties agree that payment of one-half of the Individual Settlement Amount for each Claimant shall be deemed a payment in settlement of claims for unpaid wages.
2.3.2 The payments made by Defendants directly to Claimants and the Named Plaintiffs (excluding the Incentive Bonus paid to the Named Plaintiffs) representing fifty percent (50%) of the Individual Settlement Amounts shall represent payment for unpaid wages and thus subject to required employee withholdings and deductions, and shall be reported in the year of payment as wage income to the Claimant on a Form W-2 and such other federal, state or local tax reporting forms required by law. In connection with this, each Claimant and Named Plaintiff will complete a signed W-4 along with their signed W-9 and Claims Release Form (for Named Plaintiffs, this Confidential Settlement Agreement). The remaining fifty percent (50%) paid to Claimants and the Named Plaintiffs (including the Incentive Bonus paid to the Named Plaintiffs) shall represent payments in resolution of claims for penalties (liquidated damages under the FLSA) and thus reported on a Form 1099 in the year of payment and not subject to withholdings or deductions. These Payment are conditioned upon Claimants and Named Plaintiffs providing any necessary tax forms, including a Form W-9 and Form W-4. The payments allocated to Class Counsel's Fees and Cost shall be reported in the year of payment as non-wage income to Class Counsel on a Form 1099 and on any other form or in any other manner required by law. The Payment of Class Counsel's Fees and Costs is conditioned upon Class Counsel providing any necessary tax forms, including a Form W-9 to Defendants through their counsel of record.
2.3.3 Other than the withholding and reporting requirements set forth above, Claimants are solely responsible for any necessary reporting by the Claimant of that Claimant's share of any federal, state, and/or local income or other tax or any other withholdings, if any, on any of the payments made pursuant to this Stipulation. Defendants make no representations and it is understood and agreed that Defendants have made no representations as to the taxability to any Claimant of any portions of the settlement payments, the payment of any costs or an award of attorneys' fees, or any payments to the Plaintiffs.
2.3.4 Claimants agree to indemnify and hold Released Parties harmless from any and all liability, including, without limitation, all penalties, interest and other costs that may be imposed by the Internal Revenue Service or other governmental agencies regarding any tax obligations that may arise from the monetary consideration made to the Claimants under this Agreement.
2.4 Court Approval of Settlement and Notice to the Putative Collective Action Members
Plaintiffs, through their counsel of record, will file a joint motion under seal, which has been approved by all Parties, asking that the Court enter the Approval Order. Such Order will (1) authorize the mailing of the Notices of Settlement and Claims Release Forms, (2) dismiss the Action with prejudice, and (3) enforce the release of Released Claims. Failure of the Court to enter the Approval Order in its entirety or in a substantially similar form will be grounds for the parties to terminate the settlement and the terms of this Stipulation.
2.5 Notices of Settlement and Claims Release Forms to Putative Collective Action Members
2.5.1 If the Court enters the Approval Order and provides authorization to send the Notice of Settlement and Claims Release Form to the FLSA Collective Action Members, Jones Walker LLP will facilitate, on or before the Notice Mailing Deadline, the mailing of the Notice of Settlement and Claims Release Forms, via regular mail with postage affixed, to the FLSA Collective Action Members at the Last Known Address for each.
2.5.2 The Notice of Settlement and Claims Release Form and its accompanying envelopes shall be marked to denote that the Notices are being sent by the Court in care of Jones Walker LLP,
2.5.3 Included with the Notice of Settlement and Claims Release Form shall be a postage pre-paid, return envelope addressed to Jones Walker LLP.
2.5.4 Claimants who are not owed any past due wages or overtime, based on the agreement of the parties, will not receive a Notice of Settlement and Claims Release Form. Class Counsel agrees to notify these individuals that they will not recover any settlement funds.
2.5.5 Within five (5) days of the Court's approval of the Settlement Agreement, Class Counsel shall provide the names and last known addresses and telephone numbers in their possession to Jones Walker LLP so that Jones Walker LLP can engage in the necessary mailing of the Notices of Settlement and Claims Release Forms.
2.6 Responses to the Notices
2.6.1 FLSA Collective Action Members who wish to receive payment pursuant to this Confidential Settlement Agreement must fully complete, execute, and mail, per the instructions therein, the Claims Release Form and associated tax documents. A FLSA Collective Action Member whose Claims Release Form and tax documents are received by Jones Walker LLP will be subject to the Approval Order in this Action.
2.6.2 Named Plaintiffs will execute this Confidential Settlement Agreement waiving all claims related to their employment up until the date of execution. FLSA Collective Action members will execute a release waiving all claims for owed wages up until the date of execution and other claims outlined above as Released Claims. Nevertheless, each Named Plaintiff and FLSA Collective Action Claimant (or if applicable, their lawful heir(s) or authorized legal representatives), shall, by cashing, depositing, endorsing or transferring his or her Wage Settlement Check, be deemed to have provided the same release to Defendants and the Released Parties (as defined herein), as set forth in Paragraph 1,19 of this Agreement.
2.6.3 The Named Plaintiffs and FLSA Collective Action Members receiving a Wage Settlement Check(s) on their own behalf as well as for their respective trustees, guardians, receivers, administrators, executors, agents, heirs and assigns, hereby release and forever discharge Defendants SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux, their past, present, and future affiliates, parent corporations, subsidiaries, predecessors and successors, and all of their past, present and future agents, representatives, shareholders, principals, members, owners, partners, officers, directors, employees, attorneys, consultants, heirs, executors, assigns and insurers (collectively, "the Released Parties") from any and all legal responsibilities, claims, rights of action, causes of action, suits, liabilities, demands, and damages whatsoever he or she has or may purport to have against the Released Parties, from the beginning of the world to the date hereof, whether known or unknown, arising out of relating to the Named Plaintiffs or FLSA Collective Actions Members' employment, including, but not limited to claims for overtime pay, wages, benefits or other compensation during their employment with Defendants to date, including but not limited to claims under the Fair Labor Standards Act (including any claim for liquidated damages and attorney's fees), the Employee Retirement Income Security Act of 1974, Louisiana Wage Payment Statute, La. Rev. Stat. Ann. § 23:631 et seq. and any other federal or state law, statute, regulation, rule, ordinance, common law or alleged contract doctrine pertaining to employment, wages, overtime wages, benefits or other compensation, or any claim that was asserted or could have been asserted in the Collective Action.
2.6.4 In addition, the Named Plaintiffs also hereby grants a general release to the Released Parties as additional consideration for his or her Incentive Fee. This general release shall include all demands, claims and actions, whether known or unknown, relating to his or her employment or termination of employment with Defendants, including but not limited to claims under the Americans With Disabilities Act, National Labor Relations Act, Fair Labor Standards Act (including, but not limited to, all claims for overtime compensation and all claims in the Litigation) Equal Pay Act, Employee Retirement Income Security Act of 1974, Worker Adjustment and Retraining Notification Act, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Civil Rights Acts of 1866, 1871 and 1991, Family and Medical Leave Act, Fair Labor Standards Act, Louisiana Employment Discrimination Law, and any other federal, state or local statute, regulation, and order, and in common law, through the date the Representative Plaintiff signs this Agreement; provided, however, that the Representative Plaintiff does not release any claims that cannot be released as a matter of law or rights under this Agreement.
2.6.5 To the extent a FLSA Collective Action Member returns an incomplete or invalid Claims Release Form and/or tax documents, Jones Walker LLP shall provide a letter informing that FLSA Collective Action Member that his or her Claims Release Form and/or tax documents were insufficient, identifying the additional information necessary, and also reminding the FLSA Collective Action Member of the Notice Response Deadline. A FLSA Collective Action Member who returns an incomplete or invalid Claims Release Form and/or tax documents is subject to the same Notice Response Deadline as the other FLSA Collective Action Members.
2.6.6 If Jones Walker LLP receives an FLSA Collective Action Member's Claims Release Form and tax documents within thirty (30) calendar days after the Notice Response Deadline, subject to Defendants' approval, that FLSA Collective Action Member may still become a Claimant, and apply for payment of his or her Individual Settlement Amount, and be bound by the Approval Order. Furthermore, Defendants may, in their sole discretion, accept an untimely FLSA Collective Action Member's Claims Release Form more than thirty (30) calendar days after the Notice Response Deadline, in which case that FLSA Collective Action Member may receive payment of his or her Individual Settlement Amount, and be bound by the Approval Order.
2.6.7 Claimants who, for future reference and mailings from the Court or Jones Walker LLP, wish to change the name or address listed on the envelope in which the Claims Release Form was mailed to them, must provide their change of address information to Claims Counsel and/or Jones Walker LLP.
2.7 Payments to Settlement FLSA Collective Action Members
2.7.1 Within fifteen (15) business days of receipt of both a completed Claims Release and tax documentation from a FLSA Collective Action Member, Jones Walker LLP shall send the payments, from Defendants, provided for in this Confidential Settlement Agreement by mailing them to each Claimant's Last Known Address, or updated address if the Claimant provided one to Jones Walker LLP and/or Claims Counsel. Defendants shall be responsible for all tax reporting on the payments to the Claimants. Defendants will inform Jones Walker LLP of all tax payments made on behalf of the Claimants related to their claims herein.
2.7.2 Checks issued to the Claimants shall remain negotiable for a period of ninety (90) days from the date of mailing. Claimants who fail to negotiate their checks in a timely fashion shall remain subject to the terms of the Stipulation and Approval Order and bound by the Release of Claims.
2.7.3 Defendants shall not be responsible for or pay any interest of any form on any of the Individual Settlement Amounts paid or to be paid to Claimants or on any payments made or to be made to Class Counsel pursuant to this Confidential Settlement Agreement.
2.7.4 The Parties understand and agree that the amounts of any checks issued to Claimants that are not negotiated within ninety (90) days from the date of mailing shall revert back to Defendants.
2.8 Releases and Dismissals
2.8.1 Upon the Effective Date, or the date that Defendants, in their sole discretion, accept a Claims Release Form, the Plaintiffs and each of the Claimants shall be deemed to have, and by operation of the Approval Order shall have, fully, finally, and forever released, relinquished and discharged all Released Claims against all Released Parties.
2.9 Payments of Costs and Attorneys' Fees to Class Counsel and Payment of Individual Settlement Amounts and Incentive Bonuses to Named Plaintiffs
2.9.1 The Parties to this Agreement have agreed that Class Counsel will seek an award from the Maximum Settlement Amount for fees and costs as set forth above, and agree that these amounts are fair and reasonable under the circumstances of this Action.
2.9.2 Any order of the Court or modification or reversal on appeal of any order of the Court concerning the amount of attorneys' fees or costs to be paid to Class Counsel shall constitute grounds for cancellation or termination of the Confidential Settlement Agreement.
2.9.3 Defendants shall have no liability with respect to any claim for any payment made pursuant to this Confidential Settlement Agreement for attorneys' fees or other costs or expenses of the Action asserted by any FLSA Collective Action Member or any other person, with the sole exception of a claim by Class Counsel for the payment of attorneys' fees or costs pursuant to this Confidential Settlement Agreement,
2.9.4 Within fifteen (15) business days of, and only after, the Effective Date, the Defendants shall distribute half of Class Counsel's Fees and Costs ($50,000,00) to Class Counsel in the amount approved by the Court. Prior to the Effective Date, Class Counsel shall provide Defendant's Counsel with their taxpayer identification numbers, a Form W-9, and written instructions for this payment.
2.9.5 Within fifteen (15) business days of, and only after, the Notice Response Deadline, the Defendants shall distribute the second half of Class Counsel's Fees and Costs ($50,000.00) to Class Counsel in the amount approved by the Court.
2.9.6 Subject to the tax provisions set forth in this Stipulation, within fifteen (15) business days of, and only after, the Effective Date, the Defendants shall distribute the Individual Settlement Amounts and Incentive Bonuses to the Named Plaintiffs. Prior to the Effective Date, Class Counsel will provide Defendants with the Confidential Settlement Agreement signed by Named Plaintiff and Class Counsel, along with proper tax documents.
2.10 Administration of Claims
2.10.1 The actions of Jones Walker LLP in the administration of claims shall be governed by the terms of this Confidential Settlement Agreement. Class Counsel shall be the sole contact with FLSA Collective Action Members about their claims.
2.10.2 The Notice of Settlement and Claims Release Form will direct all questions to Class Counsel. If Jones Walker LLP receives a question from a FLSA Collective Action Member, it will advise that member to contact Class Counsel.
2.10.3 Jones Walker LLP will forward to Class Counsel on the 1
2.11 Confidentiality
2.11.1 The Parties agree that the contents of this Confidential Settlement Agreement and the attachments hereto, the Parties' settlement negotiations and all related information shall be held strictly confidential by the Parties and their counsel and shall not be directly or indirectly disclosed to any third parties (including the media) or directly or indirectly referenced or described on any websites (including but not limited to social media sites and blogs). The Parties and their counsel further agree that they shall not provide information to the press or otherwise directly or indirectly describe, opine upon, publicize or cause to be publicized the case, settlement, or facts leading up to the case or settlement.
2.12 Termination of Settlement
2.12.1 The Parties waive their right to seek any form of appellate review of any order or judgment that approves the Confidential Settlement Agreement as set forth herein in its entirety as is, except for changes to formatting, corrections of typographical errors or other immaterial changes that do not affect a material provision of the Stipulation in a material way.
2.12.2 In the event that the Confidential Settlement Agreement is not substantially approved by the Court or the settlement set forth in the Confidential Settlement Agreement is terminated, cancelled, declared void or fails to become effective in accordance with its terms, or if the Approval Order does not become Final, or the Approval Order is reversed or vacated or the Confidential Settlement Agreement is invalidated on appeal, no payments shall be made by, or on behalf of, Defendants to anyone pursuant to this Confidential Settlement Agreement, and this Stipulation shall be deemed null and void with no effect on the Action whatsoever.
2.12.3 In the event that the Confidential Settlement Agreement is not substantially approved by the Court or the settlement set forth in the Confidential Settlement Agreement is terminated, cancelled, declared void or fails to become effective in accordance with its terms, or if the Approval Order does not become Final, or the Approval Order is reversed or vacated or the Confidential Settlement Agreement is invalidated on appeal, the Parties shall resume litigating this Action at that time as if no Stipulation had been entered, In such event, the terms and provisions of the Confidential Settlement Agreement shall have no force and effect with respect to the Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Confidential Settlement Agreement shall be treated as vacated. In such event, the negotiation and execution of this Confidential Settlement Agreement shall not serve to toll the statute of limitations for any claims.
2.13 Miscellaneous Provisions
2.13.1 This Confidential Settlement Agreement resolves claims which are contested in good faith and shall not be deemed an admission by any of the Parties as to the merits of any claim or defense. The Parties agree that the amounts paid as a result of this Confidential Settlement Agreement and the other terms of the settlement were negotiated in good faith and were reached voluntarily after consultation with competent legal counsel.
2.13.2 Neither the Confidential Settlement Agreement nor any act performed or executed pursuant to this Confidential Settlement Agreement (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any of the Released Claims, or of any wrongdoing or liability of any Released Party; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any Released Party in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal.
2.13.3 This Confidential Settlement Agreement may be amended or modified only by a written instrument signed by or on behalf of all Parties.
2.13.4 No provision of this Confidential Settlement Agreement shall provide rights to, or be enforceable by, any person or entity that is not a Plaintiff, FLSA Collective Action Member, Defendant or Class Counsel. No Plaintiff, FLSA Collective Action Member or Class Counsel may assign or convey any right to enforce any provision of this Confidential Settlement Agreement.
2.13.5 The Confidential Settlement Agreement constitutes the entire agreement among the Parties hereto and the Claimants and no representations, warranties or inducements have been made to any party concerning the Confidential Settlement Agreement or its Exhibits other than the representations, warranties, and covenants contained and memorialized in such documents.
2.13.6 Each counsel or other person executing the Confidential Settlement Agreement on behalf of any party hereto hereby warrants that such person has the full authority to do so.
2.13.7 The Confidential Settlement Agreement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument.
2.13.8 The Confidential Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto, but this Confidential Settlement Agreement is not designed to create any third-party beneficiaries.
2.13.9 The Confidential Settlement Agreement shall be considered to have been negotiated, executed and delivered, and to have been wholly performed, in the State of Louisiana, and the rights and obligations of the parties to the Confidential Settlement Agreement shall be construed and enforced in accordance with, and governed by, the internal, substantive laws of the State of Louisiana without giving effect to that State's choice of law principles.
2.13.10. The language of all parts of this Confidential Settlement Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either party. No party shall be deemed the drafter of this Confidential Settlement Agreement. The parties acknowledge that the terms of the Confidential Settlement Agreement are contractual and are the product of negotiations between the parties and their counsel. Each Party and their counsel cooperated in the drafting of this Confidential Settlement Agreement and it shall not be construed against either Party.
You completed a Consent Form to join a putative class seeking overtime pay by SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux (Defendants) from the period of March 1, 2015 through April 2018. The enclosed Claims Release Form ("Release") is entered into by the Plaintiffs to fully and finally release and dismiss all claims each Plaintiff has asserted or could have asserted against the Released Parties, as that term is defined in the Settlement Agreement between the parties in the lawsuit entitled Terry Catherine and Jamil Lee, et al v. Suretemps, LLC and Metro Service Group, et al, Civil Action No. 2:17-cv-7561.
Your completed Claim Release Form completed W-4 and W-9 must be postmarked by_____________, 2019.
You completed a Consent Form to join a putative class seeking overtime pay by SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux (Defendants) from the period of March 1, 2015 through April of 2018,
Based on Defendants' payroll records during that time period, your calculated portion of the settlement is the gross amount of $________________.
From the gross amount, $___________ will be treated as wages and applicable withholdings will be subtracted from the gross amount. A W-2 will issue for that amount. The reminder of the gross amount, or $___________ will be treated as liquidated damages with no withholdings. A Form 1099 will issue for that amount.
This payment is subject to the terms of the Confidential Settlement Agreement and Release executed by the Parties.
In accordance with the terms of the Confidential Settlement Agreement and Release, I on my own behalf as well as for my respective trustees, guardians, receivers, administrators, executors, agents, heirs and assigns, hereby release and forever discharge Defendants SureTemps, LLC; Full Force Staffing, LLC; Metro Service Group, Inc.; Exclusive Temporaries, Inc.; TSM Enterprises, LLC; Troy Bailey; Steve Arnold; and Maurice Robichaux, their past, present, and future affiliates, parent corporations, subsidiaries, predecessors and successors, and all of their past, present and future agents, representatives, shareholders, principals, members, owners, partners, officers, directors, employees, attorneys, consultants, heirs, executors, assigns and insurers (collectively, "the Released Parties") from any and all legal responsibilities, claims, rights of action, causes of action, suits, liabilities, demands, and damages whatsoever I have or may purport to have against the Released Parties, from the beginning of the world to the date hereof, whether known or unknown, arising out of relating to my employment, including, but not limited to claims for overtime pay, wages, benefits or other compensation during my employment with Defendants to date, including but not limited to claims under the Fair Labor Standards Act (including any claim for liquidated damages and attorney's fees), the Employee Retirement Income Security Act of 1974, Louisiana Wage Payment Statute, La. Rev. Stat. Ann. § 23:631 et seq. and any other federal or state law, statute, regulation, rule, ordinance, common law or alleged contract doctrine pertaining to employment, wages, overtime wages, benefits or other compensation, or any claim that was asserted or could have been asserted in the Collective Action.
I hereby agree and covenant to never commence, prosecute or cause to be prosecuted against any Defendant or the Released Parties, any complaint, suit or proceeding that is based on any claim or matter that is being released in this Claim Form.
I declare under penalty of perjury that the foregoing information is true and accurate, that I have read and understand the terms of this Claim Form and that I agree to abide by the terms of this Claim Form.
