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Case 1:17-cv-01087-TJK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHAYN STEPHENS, et al.

)

)

Plaintiffs,

)

)

v.

)

Civil Case No.: 1:17-cv-01087-TJK

)

FARMERS RESTAURANT GROUP,

)

DAN SIMONS and MICHAEL

)

VUCUREVICH,

)

)

Defendants.

)

MEMORANDUM IN SUPPORT OF CONSENT MOTION FOR CERTIFICATION OF A CLASS ACTION FOR SETTLEMENT PURPOSES, APPROVAL OF NOTICES TO THE CLASSES, AND PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

I. PRELIMINARY STATEMENT

Subject to Court approval, the parties have settled the claims of Fair Labor Standards Act

(“FLSA”) Opt-In Plaintiffs Shayn Stephens, et al., and Rule 23 Putative Class Members

(collectively, "Plaintiffs") against defendants Farmers Restaurant Group, LLC, Dan Simons and

Michael Vucurevich ("FRG" or "Defendants") for up to $1,490,000.00 (“Gross Settlement

Amount”). The proposed settlement resolves all claims in the lawsuit alleging that Defendants

failed to pay minimum wages and overtime wages in violation of the FLSA, 29 U.S.C. §§ 201 et

seq., the District of Columbia Minimum Wage Act (“DCMWA”), the Maryland Wage and Hour

Law (“MWHL”), and the Maryland Wage Payment Collection Law (“MWPCL”). The

settlement also resolves the Plaintiffs’ claims that they were denied paid sick leave in violation

of the District of Columbia Sick Leave Act. As explained below, this settlement resolves all the

claims in the lawsuit, or claims that could have been asserted in the lawsuit on the same facts,

and satisfies all of the criteria for preliminary approval.

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In addition, for the reasons set forth in Part VI, the parties agree that the Rule 23 Class

should be certified for settlement purposes. Accordingly, Plaintiffs respectfully request that the

Court: (1) preliminarily approve the settlement reached by the parties as embodied in their

Settlement Agreement attached hereto as Exhibit A; (2) approve the Notice to FLSA Opt-Ins of

Proposed Settlement of Collective and Class Action Lawsuit and Fairness Hearing ("Proposed

FLSA Class Settlement Notice") attached hereto as Exhibit B; (3) approve the Notice to Rule 23

Class of Proposed Settlement of Class Action Lawsuit and Fairness Hearing and Claim Form

("Proposed Rule 23 Class Settlement Notice") attached hereto as Exhibit C; (4) appoint Rust

Consulting as the administrator of the Settlement; (5) instruct the parties to appear for a Fairness

Hearing on a date approximately ninety (90) days from the date of the Preliminary Approval

Order; (6) preliminarily certify a class for settlement purposes only, pursuant to Rule 23(e) of the

Federal Rules of Civil Procedure (“FRCP”), covering the claims brought under the DCMWA and

the D.C. Sick Leave Act (“Rule 23 D.C. Class”); (7) preliminarily certify a class for settlement

purposes only, pursuant to FRCP Rule 23(e), covering the claims brought under the MWHL and

the MWPCL (“Rule 23 Maryland Class”); (8) approve Shayn Stephens and Vanessa Calvillo as

Class Representatives of the Rule 23 D.C. Class; (9) approve Vanessa Calvillo as the Class

Representative of the Rule 23 Maryland Class; and (10) approve Molly A. Elkin as Class

Counsel. In support of this motion, the declaration of plaintiffs' counsel, Molly A. Elkin, is

attached hereto as Exhibit D. Defendants consent to this motion.

II. CASE BACKGROUND AND PROCEDURAL POSTURE

On June 7, 2017, Shayn Stephens, Anita Clark, Vanessa Calvillo, Sylvia Krohn, Desmond

Pitt, and Jeanine Willig (“Plaintiffs” or “Servers”) filed this wage and hour lawsuit against

Defendants. (ECF Dkt. 1). Plaintiffs filed their First Amended Complaint on June 20, 2017 to

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allege Rule 23 class claims under District of Columbia law and to add Named Plaintiff Shannon

Storey, who worked in Defendants’ restaurant in Virginia, and Named Plaintiff Austin Hall, who

worked in the District of Columbia. (ECF Dkt. 5). 1

On July 31, 2017, plaintiffs sought collective action certification and notice pursuant to

§ 216(b) of the FLSA, the DCMWA, and the D.C. Sick Leave Act. Over Defendants’ objections,

on January 31, 2018, the Court granted Plaintiffs’ motion certifying Plaintiffs’ claims and

establishing three subclasses:

District of Columbia Sub-Class:

Substantive Claims: Minimum wage, overtime, under the FLSA and D.C. Law; and sick leave claims under D.C. Law

Procedural Aspects: FLSA collective action, D.C. collective action (with possible conversion into a D.C. class action)

Maryland Sub-Class:

Substantive Claims: Minimum wage and overtime claims under the FLSA and Maryland law

Procedural Aspects: FLSA collective action, Maryland putative class action

Virginia Sub-Class:

Substantive Claims: Minimum wage claim under the FLSA, with no claim relating to uncompensated pre-shift meetings

Procedural Aspects: FLSA collective action

(ECF Dkt. 32).

1 However, Class Representative Austin Hall thereafter, failed to participate or perform his duties as a Class Representative. (Elkin Decl. ¶ 19).

3

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Following the Court’s decision, Notice issued. The Notice period closed on April 28, 2018.

(ECF Dkt. 35). There are a total of 119 FLSA Opt-In Plaintiffs inclusive of Named Plaintiffs. The

opt-in rate was approximately 10% of the putative class. (Elkin Decl., ¶13 ).

On March 9, 2018, Plaintiffs filed a motion requesting the Court to certify both a Maryland

Class and a D.C. Class of Servers. Specifically, Plaintiffs moved for Rule 23 class certification of

their overtime pay, minimum wage, and D.C. Sick Leave Act claims pursuant to the DCMWA and

the D.C. Sick Leave Act, and for Rule 23 certification of their overtime pay and minimum wage

claims pursuant to the MWHL and the MWPCL. 2 (ECF Dkt. 36). Plaintiffs’ motion for Rule 23

class certification was fully briefed on April 13, 2018.

At the time of settlement, also pending was Defendants’ motion for partial judgment on

the pleadings, in which Defendants sought to dismiss: (1) Plaintiffs’ claim that Defendants violated

the minimum wage provisions of D.C. law, Maryland law, and the FLSA by requiring Plaintiffs to

purchase uniforms and tools of the trade; and (2) Plaintiffs’ claim that they are entitled to be paid

minimum wage for performing side work. (ECF Dkt. 23). 3

In mid-May 2018, during a meet and confer conference between counsel regarding a

discovery dispute related to Defendants’ service of interrogatories and document requests on all

119 FLSA Opt-In Plaintiffs, as opposed to a smaller subset of those Plaintiffs, and Plaintiffs’

service of document requests related to all opt-in Plaintiffs and all Servers, the parties agreed to

2 Plaintiffs requested the Court to appoint Plaintiff Vanessa Calvillo as the Class Representative for the Maryland class claims; and Plaintiffs Shayn Stephens and Vanessa Calvillo as the Class Representatives for the D.C. Class claims.

3 As a result of the parties’ notice of settlement to the Court, on July 24, 2018, the Court entered a Minute Order denying these pending motions as moot without prejudice to refile if circumstances warrant.

4

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temporarily set aside their discovery dispute and enter mediation. (Elkin Dec. ¶ 15). Accordingly,

on May 18, 2018, the parties submitted a joint motion for referral to the district court mediation

program and to stay the case. (ECF Dkt. 54). On May 21, 2018, the Court referred the matter to

mediation and stayed the case until July 20, 2018.

On May 31, 2018, the Court assigned a mediator. The mediator convened a telephone

conference with the parties that day, followed by an initial in-person mediation session on June

11, 2018, without clients present. The parties thereafter attended a July 20, 2018 final and

successful mediation with all Named Plaintiffs and Defendants present in person or by telephone.

(Elkin Decl. ¶ 15). The Named Plaintiffs (“Class Representatives”) had full authority from the

Opt-In Plaintiffs to enter a settlement agreement. (Elkin Decl. ¶19). However, because this is an

FLSA case, and because Rule 23 claims have been asserted, the Court must review and approve

the settlement agreement reached pursuant to the FLSA and FRCP Rule 23(e).

In the event that the parties’ settlement is not approved, the parties will refile their motions

that have been denied as moot, the Court will issue decisions on those motions, Plaintiffs will file

a motion for a protective order asking the Court to limit discovery to the Class Representatives

and a random sample of Opt-Ins, and Defendants will oppose any such motion for protective order

and/or file a motion for protective order asking the Court to limit Plaintiffs’ discovery. There will

be multiple depositions taken by both sides. The parties will eventually engage in dispositive

motions practice and, ultimately, trial, and appeals.

If Plaintiffs prevail, Defendants may be

responsible not only for defense counsel fees, but also for Plaintiffs’ attorneys’ fees pursuant to

the FLSA, 29 U.SC. §216(b), as well as under Maryland and District of Columbia law.

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III. SETTLEMENT NEGOTIATIONS

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Settlement negotiations were conducted at arm's length. (Elkin Decl. ¶14). Settlement

discussions began in May 2018, and continued with offers and counter-offers through July 20,

2018. (Elkin Decl.¶ 17, 20).

As mentioned, an agreement was reached with the assistance of a

court-appointed mediator. (Elkin Decl. ¶ 15).

The parties' negotiations were principled, with each side basing their offers and counter-

offers on FRG’s own pay and time worked data for the 119 FLSA Opt-Ins, and the employment

dates data provided by FRG for the 862 proposed Rule 23 Class Members who are not FLSA Opt-

Ins.

(Elkin Decl. ¶17). The parties’ positions at mediation were also based on their respective

assessments of the Court's rulings on issues to date, the expected Class Member testimony, and

documents and discovery responses exchanged by the parties regarding Plaintiffs’ allegations that

Defendants violated wage and hour laws by requiring them to: purchase and maintain uniforms

and “tools of the trade,” perform excessive side work at the lower tipped wage rate, perform work

during unpaid pre-shift meetings, and contribute to an invalid tip pool. (Elkin Decl. ¶18).

The

parties also considered documents and anticipated testimony related to the D.C. Plaintiffs’ Sick

Leave Act claims. In sum, the parties negotiated within the context of their individual assessments

of litigation risks with respect to all issues in the litigation. (Elkin Decl. ¶ 18).

Both parties attended the July 20, 2018 mediation with clients authorized to approve a

settlement agreement. Collective Action Class Representatives Shayn Stephens, Vanessa Calvillo,

Sylvia Krohn, Shannon Storey, and Jeanine Willig attended in person, while Plaintiffs Anita Clark

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and Desmond Pitt 4 attended by telephone. Defendant Dan Simons attended in person, while

Michael Vucurevich attended by telephone. (Elkin Decl., ¶ 19).

After nearly nine hours of mediation, the parties agreed to settle the claims for up to

$1,490,000.00. The parties signed a term sheet at the close of mediation on July 20, 2018. (Elkin

Decl. ¶20).

IV. SUMMARY OF THE SETTLEMENT TERMS

A. The Settlement Fund

Pursuant to the terms outlined in Exhibit A, within 120 days of final approval of the

settlement, which shall be the Effective Date of the Settlement Agreement, the Defendants will

deposit $767,215.00 of the Gross Settlement Amount to fund the Qualified Settlement Fund

("QSF") (Ex. A, ¶ 9.3). This amount will include $498,715.00 to cover the 119 FLSA Named

and Opt-In Plaintiffs’ awards under federal and state law; $35,000.00 to be allocated to the seven

Named Plaintiffs as Service Awards as described below, up to $35,000.00 for Settlement

Administration costs; and $198,500.00 reflecting one half of Plaintiffs’ attorneys' fees and costs.

(Ex. A, ¶ 9.3). Defendants will also contribute an additional amount sufficient to cover the

employer's portion of payroll taxes. (Ex. A, ¶11.1 and 12.4).

Within 180 days of the Effective Date of the Settlement Agreement, the Defendants will

deposit up to $524,825.00 of the Gross Settlement Amount to fund the QSF for the Rule 23 Class

Claims. 5 Defendants will deposit the employer's share of the payroll taxes on the backpay

4 When this case was initially certified as a collective action pursuant to §216(b) of the FLSA action, there were 8 Class Representatives. (ECF Dkt. 34 and 35). However, Class Representative Austin Hall thereafter, failed to participate or perform his duties as a Class Representative. (Elkin Decl. ¶ 19).

5 Within five (5) days after Preliminary Approval of the Settlement, the Settlement Administrator will distribute to the Rule 23 Class Members a Claim Form notifying the Rule 23

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portion of the Rule 23 state law claim into the QSF at the same time that it deposits the Rule 23

settlement amount into the QSF. (Ex. A. ¶12.4). At this same time, Defendants will also deposit

into the QSF the remaining $198,500.00 in Plaintiffs’ attorneys’ fees and expenses.

B.

Release

The parties agree that:

All FLSA Opt-In Plaintiffs listed in Exhibit 1 to the Settlement Agreement, for themselves and their families, attorneys, heirs, agents, executors, administrators, personal representatives, successors, any future estates, assigns and beneficiaries, and any and all of them (collectively, the "Releasers"), voluntarily and with the benefit of counsel, fully and forever releases and discharges defendants, their present and former officers, directors, subsidiaries, affiliates, agents, partners, employees, attorneys, accountants, executors, administrators, personal representatives, heirs, successors and assigns, and any or all of them (collectively, the "Releasees"), in their personal, individual, official and/or corporate capacities, from any and all Federal and state law wage and hour related claims – including but not limited to Fair Labor Standards Act and D.C. Accrued Sick and Safe Leave Act claims– and any other wage and hour related claims of any kind related to the claims asserted in this action, whether known or unknown, whether contingent or non-contingent, specifically asserted or not, which the Releasers, or any of them, may assert anywhere in the world against the Releasees, or any of them, arising through July 20, 2018 for the time period that Plaintiffs worked as Servers in any of Defendants’ restaurants in Maryland, D.C., or Virginia. Other than for the seven Class Representatives, this release does not extend to any claims for workers’ compensation, claims brought under Title VII of the Civil Rights Act of 1964, or other statutory or common law claims unrelated to the claims asserted in the Shayn Stephens action.

All Rule 23 Class Members listed in Exhibit 2 to the Settlement who did not opt into the FLSA collective action and who do not opt-out of the state-law class actions and Settlement Agreement, for themselves and their families, attorneys, heirs, agents,

Class Member that he or she must complete and return the Claim Form within 45 days to receive his or her share of the Rule 23 state law claim settlement monies. The Claim filing period will increase by 15 days for any Rule 23 Class Members whose Notices are re-issued as a result of the Administrator obtaining an updated address through a trace process if the initial Notice is returned as undeliverable. (Ex. A. ¶12.1). Only those Rule 23 Class Members who timely complete a Claim Form for the Rule 23 state law claim will receive a portion of the settlement monies allocated to that claim. The Claims Administrator will inform Defendants of the amount of the Rule 23 Class settlement monies claimed within 10 business days after the close of the Claim Period. (Ex. A. 12.4). Any unclaimed monies allocated to the Rule 23 Class Members will revert to the Defendants. (Ex. A. ¶¶12.2 and 12. 3).

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executors, administrators, personal representatives, successors, any future estates, assigns and beneficiaries, and any and all of them (collectively, the "Releasers"), voluntarily and with the benefit of counsel, fully and forever releases and discharges defendants, their present and former officers, directors, subsidiaries, affiliates, agents, partners, employees, attorneys, accountants, executors, administrators, personal representatives, heirs, successors and assigns, and any or all of them (collectively, the "Releasees"), in their personal, individual, official and/or corporate capacities, from any and all Maryland and D.C. state-law and federal law wage-and- hour-related claims, including but not limited to Fair Labor Standards Act claims, whether known or unknown, whether contingent or non-contingent, specifically asserted or not, which the Releasers, or any of them, may assert anywhere in the world against the Releasees, or any of them, arising through July 20, 2018 for the time period that Plaintiffs worked as Servers in Defendants’ D.C. and or Maryland restaurants. This release does not extend to any claims for workers’ compensation, claims brought under Title VII of the Civil Rights Act of 1964, or other statutory or common law claims unrelated to the claims asserted in the Shayn Stephens action.

(Ex. A, ¶ 15.1 and 15.2).

C. Eligible Employees

All FLSA Opt-in Plaintiffs and Rule 23 Class Members are eligible to participate in the

settlement. The FLSA Opt-in Plaintiffs are the 119 current and former Servers who worked at

Defendants’ Restaurants in Virginia (“FFTysons”), Maryland (“FFMoCo”) and/or D.C.

(“FFDC,” “F&D,” “FFB”) during some or all of the time from June 7, 2014 through July 20,

2018, and who opted into the lawsuit by the Court established deadline of April 28, 2018. (Ex. A,

¶ 1.1). The FLSA Opt-Ins who worked in Defendants’ restaurants in Maryland and/or D.C. are

also Rule 23 Class Members. However, all of their settlement monies will come from the

portion of the fund allocated to the FLSA Opt-Ins (i.e., $498,715.00). (Ex. A. ¶1.2).

The Rule 23 state law classes, defined for settlement purposes only, include an additional

862 current and former Servers who worked in Defendants’ restaurants in Maryland and/or the

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District of Columbia during any part of the period from June 7, 2014 through July 20, 2018, and

who did not opt into the FLSA lawsuit. 6 (Ex. A 1.2).

D. Distribution Formula

As discussed infra at Part III.F, the parties have agreed that Plaintiffs will seek to have

$388,484.00 of the QSF allocated as Plaintiffs' attorneys' fees, and $8,516.00 as Plaintiffs' costs

and expenses. The fees reflect Plaintiffs’ lodestar prior to the date of mediation, and Plaintiffs

will not seek additional fees even though their lodestar has increased substantially based on

unbilled hours preparing for and participating in the mediation and negotiating and preparing the

settlement papers. While the FLSA Class Representatives agreed to pay a 25% contingency fee

when they retained Woodley & McGillivary LLP, no contingency fee will be taken from their

settlement monies (or from the settlement monies of the Rule 23 Class Members) because

Defendants are paying Plaintiffs’ lodestar up to $397,000.00 (inclusive of expenses).

No further

fees will be owed by any party. Elkin Decl. ¶ 26. The Class Representatives agreed to this fee

and these expenses during settlement and Defendants do not object to these amounts. Id.

In addition, Plaintiffs seek final approval of $35,000.00 in Service Payments to Class

Representatives (Ex. A, ¶ 10.5). After these amounts, plus settlement administration costs which

are estimated to be no more than $35,000.00, the remaining net funds (the "Net Settlement

Funds") will be allocated among the FLSA Plaintiffs and Rule 23 Class Members as described

above and below. (Ex. A, ¶ 10.6). FRG will be solely responsible for paying Defendants' share of

payroll taxes. This amount will not come out of the Gross Settlement Amount. (Id. at ¶ 9.2, 9.5).

6 No Server hired after June 19, 2018 is eligible because the last date of employment data provided by Defendants is June 19, 2018. No Server hired after that date is included in the data or the Class.

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Taking into consideration risks of not obtaining certification of the Rule 23 class claims,

and, conversely, the Court’s order certifying the FLSA collective action based on the

declarations of the Named Plaintiffs supporting certification of those claims, litigation risk at

trial and on appeal, the contested nature of Plaintiffs' tip pool, uniform, tools of the trade, sick

leave, side work, and pre shift claims, Defendants’ pending motion for judgment on the

pleadings related to certain claims, and the uncertainty regarding the method by which damages

would be calculated, $498,715.00 of the Net Settlement Fund will be allocated to the 119 FLSA

Opt-In Plaintiffs listed in Exhibit 1 to the Settlement Agreement and up to $524,285.00 of the

Net Settlement Fund to the Rule 23 state law claim. (Ex. A, ¶ 10.6; Elkin Decl., ¶ 24). The Class

Representatives approved this distribution formula and defendants do not object to it. (Elkin

Decl., ¶ 25). While any unclaimed Rule 23 funds will revert to the Defendants, none of the funds

allocated to the FLSA Claims will revert.

The awards for Rule 23 Class Members who file claims, and for FLSA Opt-In Plaintiffs

will be distributed based on each Plaintiff's total number of weeks 7 that he/she was employed as a

Server by FRG. The recovery period for Servers employed in Virginia begins three years prior to

the date that their Opt-In form was filed in Court and ends on July 20, 2018, or the date that they

terminated their employment, whichever is earlier.

(Ex. A, ¶¶ 10.7).

The recovery period for

Servers employed in Maryland and/or D.C begins June 7, 2014 and ends July 20, 2018, or the date

that their employment was terminated, whichever is earlier. (Id.) The minimum payment to Rule

7 For purposes of the distribution formulas for both FLSA Opt-ins and Rule 23 Class members, any employee who was employed by FRG on June 19, 2018 (the last date of employment data) is credited with remaining employed through July 20, 2018, the date that the parties signed a term sheet resolving this action.

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23 Class Members (who file claims) is $50.00. The minimum payment to FLSA Opt-In Plaintiffs

is $100.00. (Ex. A, ¶¶ 10.7, 10.8)

For those Servers who worked in Defendants’ restaurants in D.C., 1/4 of the settlement

monies will be allocated to backpay; for Servers who worked only in the Maryland restaurant,

1/3 of the settlement monies will be allocated as backpay; and for Servers who worked only at

Founding Farmers Tysons, 1/2 of the settlement monies will be allocated as backpay. (Ex. A, ¶¶

10.7, 10.8). The settlement monies allocated as backpay will be reported to the IRS for tax

purposes on a W-2 form, while the remaining monies (3/4 of the monies for D.C. Servers, 2/3 of

the monies for Maryland Servers, and 1/2 of the monies for Virginia Servers) will be designated

as liquidated damages and reported to the IRS for tax purposes on a 1099-MISC form. (Id.).

E. Service Payments

With respect to the service payments, the payments will be made only to the seven

Named Plaintiffs who came forward and assisted counsel with the factual investigation of the

FLSA and Rule 23 claims and subsequently filed this action on behalf of all those similarly

situated. Their sworn declarations supported certification of the action under the FLSA and/or

Rule 23. In addition, these seven Named Plaintiffs were responsible for leading the discovery

efforts by providing interrogatory responses and document responses, although Defendants

dispute the completeness of those responses. Indeed, from Plaintiffs’ perspective, the discovery

that arose from their participation strengthened the claims. Further, they also spent considerable

time participating on the settlement team either by telephone and/or in person, requiring time off

of work. (Elkin Decl. ¶¶22-23)

As this Court explained in awarding service payments to plaintiffs, “courts routinely

approve incentive awards to compensate named plaintiffs for the services they provided and the

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risks they incurred during the course of class action litigation.” In re Lozapram & Clorazepate

Antritrust Litig., 205 F.R.D. 369, 400 (D.D.C. 2002). Indeed, this Court has routinely held that

incentive awards to plaintiffs are reasonable “in light of their investments of time, money, and

effort on the part of the class.” Advocate Health Care v. Mylan Labs. Inc. 2003 U.S. Dist. LEXIS

12344, *35 (D.D.C. Jun. 16, 2003) (quoting Collins v. Pension Benefit Guaranty Corp., No. CA

88-3406-AER, 1996 WL 335346, * 6 (D.D.C. Jun. 7, 1996)). As one court explained in

awarding service payments to plaintiffs involved in filing and litigating a similar claim, "in a

wages and hours case, where a low level employee assumes responsibility for prosecuting an

action against an employer and takes considerable personal risk in so doing, such awards are

singularly appropriate." Henry v. Little Mint, Inc., 2014 U.S. Dist. LEXIS 72574 (S.D.N.Y. May

23, 2014).

Service, or incentive, awards are common in the District of Columbia Circuit, often in

amounts equal to or exceeding $5,000. See, e.g., Ceccone v. Equifax Info. Servs. LLC, 2016 U.S.

Dist. LEXIS 127492, *35-36 (D.D.C. Aug. 29, 2016) (awarding $5,000 to the named plaintiff in

FCRA class action); Trombley v. Nat’l City Bank, 826 F. Supp. 2d 179, (D.D.C. 2011) (awarding

$5,000 each to three class representatives as “fall[ing] within the range of reasonableness”);

Wells v. Allstate Ins. Co., 557 F. Supp. 2d 1, 9 (D.D.C. 2008) (granting $10,000 incentive award

to representative plaintiffs who actively participated in discovery and attended hearings); Cohen

v. Warner Chilcott Pub. Ltd. Co., 522 F. Supp. 2d 105, *124 (D.D.C. 2007) (awarding $7,500 to

each of two named plaintiffs who “fully complied with all demands placed on them during

litigation and assisted in Class Counsel’s investigation of this case”).

In determining whether a service award is warranted, “courts consider factors such as ‘the

actions the plaintiff has taken to protect the interests of the class, the degree to which the class

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has benefitted from those actions, and the amount of time and effort the plaintiff expended in

pursuing the litigation.’” Advocate Health Care, 2003 U.S. Dist. LEXIS 12344 at *35 (quoting

Cook v. Niedert, 142 F. 3d 1004, 1016 (7th Cir. 1998)). Here, the seven Named Plaintiffs have

taken great steps to protect the interests of the classes, and the classes will benefit from their

actions. They put in substantial efforts, meeting with Plaintiffs’ counsel in person and by

telephone on multiple occasions, taking time off from work to go over discovery responses with

counsel and to participate in mediation. (Elkin Decl. ¶ 22-23). Under the settlement, each of the

Seven Named Plaintiffs will receive a $5,000 Service Award for a total of $35,000, which

reflects .02% of the Gross Settlement Amount.

F. Attorneys' Fees and Costs

Consistent with the Settlement Agreement, Plaintiffs' counsel will seek approval of

attorneys' fees in the amount of $388,484 based on their lodestar as of June 26, 2018 even though

their current lodestar is in excess of this amount. (Ex. A, ¶¶ 8.3, 10.4). Under the FLSA, a court

"shall, in

addition

to

any

judgment

awarded

to

the

plaintiff

or

plaintiffs,

allow

a

reasonable attorney’s fee to be paid by the defendant, and the costs of the action." 29 U.S.C.

§216(b).

Under

the FLSA,

an

award

of attorneys’

fees

to

the

prevailing

party

is

mandatory. See Driscoll v. George Washington Univ., 55 F. Supp. 3d 106, 112 (D.D.C. 2014)

(explaining the purpose of the "mandatory fee-shifting scheme" under the FLSA). Likewise, the

DCMWA provides for an award of reasonable attorneys’ fees to the prevailing plaintiffs. D.C.

Code §§ 32-1012(c) 32-1308(b). 8 See also Md. Code Ann. Lab. & Empl. § 3-507(b).

8 Under D.C. Code § 1308(b)(1), plaintiffs are entitled to recover hourly attorney fee rates at the Salazar rates:

The court, in any action brought under this section shall, in addition to any judgment awarded to the prevailing plaintiff or plaintiffs, allow costs of the action,

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Pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2), Plaintiffs' counsel will

file a motion for approval of attorneys' fees and reimbursement of expenses as part of their motion

for final approval of the Settlement Agreement.

G. Settlement Claims Administrator

Under the Settlement Agreement, and with the consent of the Defendants, Plaintiffs'

counsel will retain the services of Rust Consulting to act as Settlement Administrator. (Ex. A. ¶

3.1). The Settlement Administrator will be responsible for the mailing of Notices and Claim Forms

to Rule Class Members and Notices to FLSA Opt-Ins in accordance with this Court's Order,

administering Claims Forms, administering W-4 Forms and Misc Income Form 1099s, managing

the QSF, distributing tax forms, and distributing settlement checks to Rule 23 Class Members and

FLSA Opt-Ins. (Ex. A, ¶¶3.1, Sections 5-7, 9-12). The Settlement Administrator's fees will be paid

from the QSF and will not exceed $35,000.00 (Id. at ¶¶ 3.1, 9.3).

H. Settlement Claims Procedure

The well-defined class action settlement procedure includes three distinct steps:

1. Preliminary approval of the proposed settlement after submission to the Court of this motion for preliminary approval;

2. Dissemination of mailed notices of settlement to all affected class members; and

including costs or fees of any nature, and reasonable attorney’s fees, to be paid by the defendant. In any judgment in favor of any employee under this section, and in any proceeding to enforce such a judgment, the court shall award to each attorney for the employee an additional judgment for costs, including attorney’s fees computed pursuant to the matrix approved in Salazar v. District of Columbia, 123 F.Supp.2d 8 (D.D.C. 2000), and updated to account for the current market hourly rates for attorney’s services. The court shall use the rates in effect at the time the determination is made.

D.C. Code § 1308(b)(1).

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3. A final settlement approval hearing at which time class members may be heard regarding the settlement, and at which time argument concerning the fairness, adequacy, and reasonableness of the settlement may be presented.

See Fed. R. Civ. P. 23(e); see also Herbert B. Newberg & Alba Conte, Newberg on Class Actions

("Newberg"), §§ 11.22, et seq. (4th ed. 2002). This process safeguards class members' procedural

due process rights and enables the Court to fulfill its role as the guardian of class interests.

With this motion, the parties request that the Court take the first step – granting

preliminary approval of the Settlement Agreement, approving Plaintiffs' Proposed Notices, and

authorizing them to send notices of the settlement to the class. One notice will be sent to 862 Rule

23 Class members who did not opt into the FLSA case, and the other notice will be sent to the 119

FLSA Opt-In Plaintiffs. (Ex. B, Ex. C). The notices allow the class members to review the number

of weeks that have been allocated to them. They also provide them with the approximate value of

a week/point. The notices explain how the Gross Settlement amount will be allocated, sets forth

the amount of fees and expenses, the costs of the Administrator, and the amount of the service

payments that will be paid out of the QSF. The notices announce the time and date of the fairness

hearing. They also explain the opt-out and objection opportunities to the Rule 23 Class Members

and provide instruction on how the FLSA Opt-in Plaintiffs may object to the settlement. (Ex. B).

A

Claim Form will be included with the Rule 23 Notice, along with specific instructions on how

to

complete and return the Claim Form to receive a portion of the settlement monies allocated to

the Rule 23 class claims. (Ex. C). The Claims Administrator will set up a call center to field

questions from class members and FLSA Opt-In Plaintiffs. The call-in information is set forth in

the Notices.

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A. Legal Standards for Settlement Approval

Law and federal policy strongly favor the settlement of class action litigation. See, e.g.,

Chilcott, 522 F.Supp.2d at 114 (“there is a long-standing judicial attitude favoring class action

settlements, and the court’s discretion is constrained by the ‘principle of preference’ favoring and

encouraging settlement in appropriate cases.”); In re Vitamins Antitrust Litig., 305 F. Supp.2d 100,

103 (D. D.C. 2004) ("The Rule 23 requirements are fully consistent with the long-standing judicial

attitude favoring class action settlements.”); UAW v. General Motors Corp., 497 F.3d 615, 632

(6th Cir. 2007) (noting "the federal policy favoring settlement of class actions").

Court approval is required to settle both an FLSA collective action and a Rule 23 class

action. Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982); Fed. R.

Civ. P. 23(e). FLSA settlements are reviewed for their fairness and reasonableness. Lynn’s Food

Stores, 679 F.2d at 1353. Likewise, under FRCP 23(e), a court must determine whether a class

action settlement is “fair, reasonable, and adequate.” “A presumption of fairness, adequacy, and

reasonableness may attach to a class settlement reached in arm’s length negotiations between

experienced, capable counsel after meaningful discovery.” Alvarez v. Keystone Plus Constr. Corp.

303 F.R.D. 152 at 163 (D. D.C. 2014), citing Chilcott, 522 F. Supp.2d at 120-121.

Courts reviewing proposed settlements under the FLSA and Rule 23 consider a variety of

factors. In this Circuit, “there is ‘no obligatory test’ that the Court must use to determine whether

a settlement is fair, adequate and reasonable.” Blackman v. D.C., 454 F. Supp. 2d 3, 8 (D.D.C.

2006); Alvarez, 303 F.R.D. at 163 (“the D.C. Circuit has not announced a specific test for such

consideration

.”). Courts in this Circuit generally consider five factors: (1) whether the

settlement is the result of arms-length negotiations; (2) the terms of the settlement in relation to

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the strengths of plaintiffs’ case; (3) the status of the litigation proceedings at the time of settlement;

(4) the reaction of the class; and (5) the opinion of experienced counsel. All five of these factors

weigh heavily in favor of settlement approval here.

B. The Settlement is Fair, Reasonable, and Adequate

"Typically, courts regard the adversarial nature of a litigated FLSA case to be an

adequate indicator of the fairness of the settlement," and "approve FLSA settlements when they

are reached as a result of contested litigation to resolve bona fide disputes." Lynn's Food Stores,

Inc., 679 F.2d at 1353-54, 1353 n.8. As discussed below, the instant settlement was the result of

contested litigation, resolves bona fide disputes, and was reached as a result of arm's length

negotiation. The terms of the settlement for the FLSA class and the Rule 23 class are fair in

relation to the strengths of Plaintiffs’ case, as well as the risks related to Defendants’ defenses.

The parties had conducted meaningful discovery and had engaged in strenuous motions practice

at the time of the settlement. The reaction of the Class Representatives has been overwhelmingly

positive, and the Plaintiffs anticipate that the reaction of the class will mirror their view. Both

parties were represented by experienced counsel who believe that the settlement is fair and

reasonable. Therefore, preliminary approval under the FLSA and Rule 23 is warranted.

1. The Settlement is the Product of Arm's Length Negotiations (Factor 1)

As set forth in Part III, supra, settlement negotiations were conducted at arm's length

with discussions lasting two months. The parties' negotiations were principled, with each side

basing their offers and counter-offers on calculations derived from FRG’s actual pay and punch

data for the 119 Opt-In Plaintiffs, which were then extrapolated to the 862 Rule 23 Class based

on those Class Members’ employment dates provided by FRG. Prior to mediation, the parties

exchanged meaningful discovery including FRG polices regarding items Servers use at work,

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clothing Servers wear to work, and tip pooling, and Plaintiffs’ receipts with respect to the items

of clothing and other items they purchased for their Server positions with FRG. Named

Plaintiffs also produced responses to interrogatories about their claims. At mediation, litigation

discounts were given and taken based on each parties’ assessment of risk related to Plaintiffs’

claims and Defendants’ defenses. The parties’ positions at mediation were also based on their

respective assessments of the Court's ruling granting FLSA collective action certification. (Elkin

Decl., ¶¶ 17, 18).

Both parties attended mediation with clients authorized to approve a settlement

agreement. (Elkin Decl., ¶ 19). With the help of the experienced Court-appointed mediator, the

parties were able to reach a deal after nine hours of in-person mediation – a deal that they can

recommend to absent class members and to the Court. This settlement will provide substantial

benefits to the Plaintiff classes and will allow a fairly swift resolution of this complex litigation.

Accordingly, the principled, arm's-length negotiations support preliminary approval of

the settlement.

2. The Terms of the Settlement in Relation to the Strengths of Plaintiffs’ Case Weighs in Favor of Preliminary Approval (Factor 2)

While plaintiffs believe their legal position is strong, continuing to litigate this matter

would be extremely costly and presents litigation risk. This weighs in favor of preliminary

approval. See Ceccone v. Equifax Info. Servs., LLC, 2016 U.S. Dist. LEXIS 127942, *25 (D.D.C.

Aug. 29, 2016) (noting that the fact the parties “chose to settle in order to avoid the significant

expense (and risk) of summary judgment motions, class certifications, and trial” weighs in favor

of approval); Chilcott, 522 F. Supp. 2d at 118 (approving settlement where “it is obvious that

Plaintiffs faced significant risks in establishing both liability and damages. Even if Plaintiffs had

prevailed over these obstacles at trial, it is likely that a verdict would have been followed by an

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appeal, which might have further delayed the final resolution of this case.”); Osher v. SCA Realty

I, 945 F. Supp. 298, 305 (D.D.C. 1996) (“The costlier it is to go forward with the litigation, the

greater chances that an early settlement will be fair, reasonable and adequate.”). See also, Sheick

v. Auto. Component Carrier LLC, 2010 U.S. Dist. LEXIS 110411 (E.D. Mich. Oct. 18, 2010)

(“[w]hatever the relative merits of the parties' legal positions, there is no risk-free, expense-free

litigation.”).

The parties’ bona fide disputes concern both facts and the law. For example, Plaintiffs

believe a jury would conclude that the items of clothing that the Servers bought constitute

“uniforms” based on the restrictions FRG places on such items. Defendants counter that blue

jeans and button down shirts are ordinary street clothes and do not constitute a uniform as a

matter of law. Even if Plaintiffs establish that the items are uniforms, the parties dispute the

measure of damages. Plaintiffs believe that Defendants would lose entitlement to paying the

lower tipped wage for every hour of every week of work because Plaintiffs were required to

launder the uniforms each week. Defendants assert that, at most, Plaintiffs are entitled to the

out-of-pocket costs of the clothing, and even then, Plaintiffs would have the burden to come

forward with receipts showing the expenditures.

Similarly, with respect to Plaintiffs’ invalid tip pool claim, Plaintiffs assert that a jury

would conclude that certain positions should not have been in the pool because they were more

akin to back-of-the-house workers who do not regularly and customarily receive tips, while

Defendants assert that all of the positions in the tip pool are positions that are regularly and

customarily tipped.

Likewise, with respect to Plaintiffs’ side work claim, Plaintiffs believe that a jury would

conclude that the Servers should be paid the minimum wage for time spent performing non-

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tipped side work, while Defendants assert that the side work was neither a “dual job,” nor

excessive (i.e., in excess of 20% of the work hours in the workweek).

Moreover, absent settlement, the parties already had costly discovery disputes facing

them related to the amount and scope of discovery. (Elkin Decl. ¶ 15). They also disagreed

about whether Defendants’ acted in good faith or with objective reasonableness to avoid

liquidated damages under the FLSA and state law, and whether Defendants’ alleged violations

were willful such that the FLSA statute of limitations would be extended to three years for the

Virginia Servers, who had only FLSA claims. The parties further disagreed about whether the

Rule 23 classes would be certified and whether the FLSA class would be decertified. Had the

Rule 23 classes been certified, the Defendants would have sought immediate appeal of that

ruling, thereby delaying resolution of the case.

There is no doubt that continued litigation and trial would be long, costly, arduous and

complex. This settlement, on the other hand, makes monetary relief available to class members

in a prompt and efficient manner. The awards range from $100.00 to over $25,000 per FLSA

Plaintiff with the average amount being $4,191 based on the number of weeks worked in the

recovery period. The awards range from $50.00 to $2,628 for the Rule 23 Class Members, who

all had the opportunity to timely opt into the FLSA lawsuit but chose not to do so, and whose

class had not yet been certified at the time of the settlement. Like the FLSA class, the amount of

the payment depends on the number of weeks of employment as a Server during the recovery

period. The average amount is $608. (Elkin Decl., ¶ 27). In light of the heated nature of the

disputes, the procedural posture of the case, the long road ahead of Plaintiffs, the costs to

Defendants and to Plaintiffs, and the risks regarding liability and damages, Factor 2 weighs in

favor of preliminary approval.

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3. The Status of the Litigation Proceedings at the Time of Settlement Weighs in Favor of Preliminary Approval (Factor 3)

As mentioned, the parties had engaged in significant motions practice and meaningful

discovery prior to facing each other at the bargaining table. The case had been certified as a

collective action pursuant 29 U.S.C. Sec. 216(b) (ECF Dkt. 32). Plaintiffs’ motion for Rule 23

class certification had been fully briefed, as had Defendants’ motion for judgment on the

pleadings (ECF Dkt. 23, 28-29, 36-37, 42, 44). In addition, the parties had exchanged

interrogatories and document requests geared toward obtaining discovery that was necessary to

allow them to have meaningful negotiations. This includes Defendants’ production of all pay

and time worked records for the Opt-In Plaintiffs from which extensive damages calculations

were performed and shared with Defendants. (Elkin Decl. ¶ 28). Defendants also produced

polices regarding clothing Servers wore to work, tip pooling and items servers used at work.

Plaintiffs produced text messages related to sick leave requests, and receipts for clothing

purchases, emails with managers about clothing, and they responded to interrogatories about

their claims. (Id.). Thus, discovery has advanced far enough to allow the parties to resolve this

dispute responsibly, and thus this factor supports preliminary approval.

4. The Reaction of Absent Class Members Weighs in Favor of Preliminary Approval (Factor 4)

Notice of the settlement has not yet been issued to the class, and an assessment of

the class's reaction is premature. Notably, however, the seven Class Representatives – all of

whom participated in the mediation, and all of whom have been actively involved in the

litigation of these claims since the case was originally filed in 2017– fully support the Settlement

Agreement. (Elkin Decl., ¶22). While the Court will more fully analyze this factor after Notice

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issues and Class Members are given the opportunity to opt-out or object, it weighs in favor of

preliminary approval.

5. Class Counsel Believes the Settlement is In the Best Interest of the Class (Factor 5)

It is well-established that the opinion of experienced counsel “should be afforded

substantial consideration by the court in evaluating the reasonableness of a proposed settlement.”

Chillcott, 522 F. Supp.2d at 121; Alvarez, et al., 303 F.R.D. at 164. Here, Class Counsel has

weighed the respective risks to proceeding with litigation, and has extensively analyzed the

Defendants' potential liability based on thorough damages calculations prepared by Woodley &

McGillivary Litigation Director Keith Nickerson using the Defendants' pay and time worked

data. (Elkin Decl., ¶ 21). Class Counsel, who, for more than 24 years has represented workers in

primarily wage and hour lawsuits, has substantial experience litigating wage and hour cases

throughout the country (Elkin Decl. ¶¶2 -12), and believes that this settlement is fair, reasonable,

and adequate. Further, Class Counsel discussed the litigation risks and the Defendants' potential

liability, with the Class Representatives and asked the representatives to consider whether

settlement was in the best interest of the class. (Elkin Decl., ¶ 22). Each Class Representative

was asked to consider that the continued litigation could result in the class receiving a greater

monetary judgment or lesser monetary judgment after trial and appeal, and each class

representative determined that certainty of settlement outweighs the risks and costs of going

forward. (Id.). (Id. at 22).

In light of this analysis, Class Counsel and the Class Representatives believe that

settlement is in the best interest of the class.

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C. The Notices are the Best Notice Practicable and Approval is Warranted

Before conducting a final fairness hearing, the district court must "direct notice in a

reasonable manner to all class members who would be bound" by the settlement. Fed. R. Civ. P.

23(e)(1). The notice “must be reasonably calculated

to apprise [the Class Members] of the

pendency of the action and afford them an opportunity to present their objections.” Brown v.

Wells Fargo Bank, N.A., 869 F. Supp. 2d 51, 64 (D.D.C. 2012) (quoting Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

Here, the attached notices, one for Rule 23-only Class Members and the other for

FLSA/Rule 23 Class Members, are the best practicable notices as these notices are reasonably

calculated to apprise the class members of the pending settlement and afford them an opportunity

to present their objections. The notices also allow the Class Members to review the number of

weeks that have been allocated to them; explain how the gross settlement amount will be

allocated; set forth the amount of fees and expenses and service payments that will be paid out of

the QSF; and notify the class of the fairness hearing and the opportunity to opt-out of the Rule 23

class settlement. (Ex. C). Importantly, it explains the procedures to follow to file a timely Claim

for Rule 23 Class Members as well as the consequences of failing to do so. Accordingly,

approval of the notices is warranted.

VI. THE RULE 23 SETTLEMENT CLASSES SHOULD BE PROVISIONALLY CERTIFIED FOR PURPOSES OF SETTLEMENT

A settlement class will be certified if it meets the requirements of Rule 23(a) and one of

the subsections of Rule 23(b). See, e.g., Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2548 (2011).

Notably, a class may be approved for settlement purposes even though that class might otherwise

not pass muster under Rule 23. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997);

Sullivan v. DB Invs., Inc., 667 F.3d 273 (3d Cir. 2011). Indeed, “[c]lasses certified for settlement

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purposes only are a hallmark of class action litigation.” Alvarez v. Keystone Plus Constr. 303

F.R.D. at 159; See also, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 618 (1997) (noting that

the settlement-only class has “become a stock device”); Chilcott, 522 F. Supp. 2d at 113.

When presented with a settlement-only class, a court must determine whether the

proposed class satisfies the requirements of FRCP 23, with one exception: the court is not tasked

with determining whether “the case, if tried, would present intractable management problems” as

it otherwise would have to determine when ruling on class certification under Rule 23(b)(3)(D).

Amchem, 521 U.S. at 620; see also Thomas v Albright, 139 F.3d 227, 234 (D. C. Cir. 1998).

Here, the parties’ Rule 23 classes should be provisionally certified for purposes of settlement.

A. The Proposed Settlement Classes Meet the Numerosity Requirement of Rule 23(a)(1)

Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is

impracticable.” “Courts in this District have generally found that the numerosity requirement is

satisfied and that joinder is impracticable where a proposed class has at least forty members.”

Chilcott, 522 F. Supp. 2d at 114. See also, Alvarez v. Keystone Plus Constr. Corp., 303 F.R.D.

152, 160 (D.D.C. 2014); McKinney v. U.S. Postal Serv., 22013 U.S. Dist. LEXIS 6246, at *5

(D.D.C. Jan. 16, 2013). There are 962 Rule 23 Class Members, with 272 Servers in the

Maryland Class and 690 Servers in the D.C. Class inclusive of the FLSA Opt-in Plaintiffs who

have Rule 23 claims. The numerosity requirement is satisfied.

B. The Proposed Settlement Classes Meet the Commonality Requirement of Rule 23(a)(2)

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” “The

commonality test is met when there is at least one issue, the resolution of which will affect all or

a significant number of the putative class members,” such that “factual variations among the

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class members will not defeat the commonality requirement, so long as a single aspect or feature

of the claim is common to all proposed class members.” Chilcott, 522 F. Supp. 3d at 114. Here,

where all of the putative class members in both Rule 23 classes are or were Servers who,

according to Plaintiffs, were subject to the same work policies and practices, and had the same

job duties and responsibilities, had to buy clothing that the Servers assert were uniforms, had to

buy “tools of the trade,” were required to engage in side work, were mandated to contribute to tip

pools that they say were invalid, had to perform pre-shift work while off the clock, were subject

to the same pay and time keeping policies, and for D.C. Servers, were subject to the same sick

leave practices, the commonality requirement has been satisfied. For purposes of settlement only,

FRG does not dispute that plaintiffs meet the commonality requirement.

C. The Proposed Settlement Classes Meet the Typicality Requirement of Rule 23(a)(3)

Rule 23(a)(3) requires that “the claims and defenses of the representative parties” be

“typical of the claims or defenses of the class.” “Typicality requires that the claims of the

representative be typical of those of the class” and often “overlaps with the commonality inquiry,

as each seeks to determine the practicality of proceeding with a class action and the extent to

which the plaintiffs will protect the interests of absent class members.” Encinas v. J.J. Drywall

Corp., 265 F.R.D. 3, 9 (D.D.C. 2010) (internal quotations and citation omitted.) Here, the Class

Representatives’ claims in both classes are all based on the alleged failure of Defendants to pay

Plaintiffs the minimum wage for all hours of work, overtime pay at time and one-half all hours

worked above 40 in a workweek, and for D.C. Servers, sick leave pay on occasions when they

called in sick. The Class Representatives maintain that their claims are typical of the class they

represent (See Dkt. 18, Motion for Collective Action Certification and supporting declarations)

and, for purposes of settlement only, FRG does not dispute the typicality requirement. See, e.g.,

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Lindsay v. Gov’t Emples. Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008) (class representative’s

claims are typical if they “arise from the same events, practice, or conduct, and are based on the

same legal theory as those of other class members, the typicality requirement is satisfied)

(quoting 5 MOORE'S FEDERAL PRACTICE § 23.24[2] at 23-93 (3d ed. 2002)); Chilcott, 522

F. Supp. 2d at 115 (typicality is satisfied where “Plaintiffs’ claims and those of absentee

members of the Settlement Class arise from the same events, and involve the same legal theory

and elements of proof”).

D. The Proposed Settlement Classes Meet the Adequacy Requirement of Rule 23(a)(4)

Rule 23(a)(4) allows class certification only if the named representatives will “fairly and

adequately protect the interests of the class.” This requirement is essential to due process, as a

judgment in a class action is binding on all class members. Hansberry v. Lee, 311 U.S. 32

(1940). The D.C. Circuit has set out two criteria for determining the adequacy of representation:

“1) the named representative must not have antagonistic or conflicting interests with the

unnamed members of the class, and 2) the representative must appear able to vigorously

prosecute the interests of the class through qualified counsel.” Twelve John Does v. District of

Columbia, 551 F.2d 340, 345 (D.C. Cir. 1997) (quoting Nat’l Ass’n of Regional Med. Programs,

Inc. v. Matthews, 551 F.2d 340, 345 (D.C. Cir. 1976)). Here, both requirements are easily

satisfied.

First, the Class Representatives for each class have the same interests as the rest of the

class members in the class they seek to certify: as hourly-paid tipped Servers, they seek to

recover the proper wages earned for all hours worked, including when such payments were not

paid in accordance with the District of Columbia’s and Maryland’s minimum wage and overtime

laws. The D.C. Class Representatives for the D.C. Class also seek to recover for the defendants’

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violations of the D.C. Sick Leave Act. See Chilcott, 522 F. Supp. 2d at 115 (adequacy is satisfied

where “Plaintiffs and the absentee Class Members shared the identical objectives of establishing

liability and obtaining damages”).

Second, plaintiffs’ counsel are qualified, as they are experienced trial lawyers with

considerable experience in litigating wage and hour actions throughout the United States. The

attorneys at Woodley & McGillivary LLP, exclusively represent employees and unions and

specialize in wage and hour cases. (Elkin Decl., ¶ ¶ 1-12). Specifically, Molly A. Elkin, has more

than 24 years of civil litigation experience with a particular emphasis in wage and hour collective

and class actions on behalf of employees in FLSA and other wage cases and has served as lead

counsel in more than 75 FLSA court and arbitration cases. The court cases resulted in settlements

approved by various courts throughout the country. (Elkin Decl. ¶¶2 -4)

Ms. Elkin has dedicated “substantial time and energy to litigating this action through

settlement.” Chilcott, 522 F. Supp. 2d at 115. As such, there can be no question that the

plaintiffs’ attorneys, and specifically, Molly Elkin, are qualified as class counsel.

E. The Proposed Settlement Classes Meet the Predominance and Superiority Requirements of Rule 23(b)(3)

Rule 23(b)(3)’s predominance test focuses on the number and significance of common

questions and “tests whether a proposed class is sufficiently cohesive to warrant adjudication by

representation.” Moore’s Federal Practice, § 23.45[2][a], pp. 23-219-220; Tyson Foods, Inc., 136

S. Ct. at 1045; Amchem Products, 521 U.S. at 623. As this Court has noted, “in general,

predominance is met where there exists generalized evidence which proves or disproves an

element on a simultaneous, class-wide basis, since such proof obviates the need to examine each

class members’ individual position.” In Re Vitamins Antitrust Litig., 209 F.R.D. at 262.

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“Significantly, the common issues need only be predominant, not dispositive of the litigation.”

Chilcott, 522 F. Supp. 2d at 116.

Plaintiffs’ state law class actions focus on the following issues, common to all members

of the putative classes: (1) defendants’ failure to properly apply tip credit provisions and failure

to provide the minimum wage in the District of Columbia and Maryland restaurants; (2)

defendants’ failure to provide proper overtime compensation in the District of Columbia and

Maryland restaurants; and (3) whether such practices violate the DCWMA in the District of

Columbia and/or of the MWHL and MWPCL in Maryland. Plaintiffs’ class actions also focus on

the issues of defendants’ failure to provide paid sick leave in the District of Columbia

restaurants, and whether that practice violates the D.C. Sick Leave Act.

These issues easily satisfy the predominance test, as this Circuit – as well as federal

courts around the country – have determined in similar cases. See, e.g., Alvarez v. Keystone Plus

Constr. Corp., 303 F.R.D. 152, 162 (D.D.C. 2014) (noting that the predominance requirement is

met where the “violations the Plaintiffs allege stem from Keystone's generalized practice of

failing to pay its employees the overtime to which they were entitled; indeed, that central

element of Plaintiffs' theory of liability in this case is common to every class member.”). See

also Edelen v. Am. Residential Servs., LLC, 2013 U.S. Dist. LEXIS 102373, *18-19 (D. Md. Jul.

22, 2013) (predominance inquiry is met where all claims of the Rule 23 settlement class “present

the same legal question, i.e., whether Defendants’ alleged common method for calculating

overtime rates of pay

violated the MWHL.”).

In determining whether a class action is superior to other available methods, Rule

23(b)(3) identifies four elements that are pertinent to a court’s determination, only three of which

are necessary to asses when parties request class certification for settlement purposes only: (A)

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the class members’ interests in controlling their own separate actions; (B) the extent and nature

of any relevant, pending, litigation brought by or against class members; (C) the desirability of

concentrating the litigation in the particular forum. Fed. R. Civ. P. 23(b)(3)(A)-(C). “The

superiority requirement ensures that resolution by class action will achieve economies of time,

effort, and expense, and promote

uniformity of decision as to persons similarly situated,

without sacrificing procedural fairness or bringing about other undesirable consequences.”

Chilcott, 522 F. Supp. 2d at 117 (quoting Amchem, 521 U.S. at 615)). In the present case, a class

action is superior to other available methods for enforcing plaintiffs’ rights under District of

Columbia and Maryland law.

First individual actions, controlled and prosecuted by 962 individual plaintiffs, asserting

identical wage and hour claims, would burden both the courts and the classes. Id. at 117 (finding

class action to be superior where “the size of the Settlement Class, the uniformity of issues

regarding Defendants’ liability, and the fact that the Class Members’ individual claims are

miniscule in comparison to the cost of prosecuting this type of complex litigation”). Second,

plaintiffs are unaware of any relevant pending litigation brought by or against Class Members.

Third, it is desirable to concentrate the litigation in one forum, and in particular, D.C., because

the majority of the restaurants are located in D.C., most of the class members worked in D.C.,

and more than one issue is common throughout all of the restaurants at issue in the two classes.

Further, “[b]ecause the class is being certified for purposes of settlement only, the Court

need not consider whether the case, if tried, would present intractable management problems.”

Radosti v. Envision Emi, LLC, 717 F. Supp. 2d 37, 54 (D.D.C. 2010) (citing Amchem, 521 U.S.

at 620). Accordingly, superiority is satisfied here.

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VII.

CONCLUSION

For the reasons set forth above, the parties respectfully request that the Court enter an

order:

1. Preliminarily approving the settlement reached by the parties in this action as

embodied in their Settlement Agreement (Exhibit A);

2. Approving the Notice to FLSA Opt-Ins of Proposed Settlement of Collective and

Class Action Lawsuit and Fairness Hearing (Exhibit B);

3. Approving the Notice to Rule 23 Class of Proposed Settlement of Class Action

Lawsuit and Fairness Hearing and Claim Form (Exhibit C);

4. Appointing Rust Consulting as the administrator of the Settlement;

5. Instructing the parties to appear before this Court for a Final Approval and

Fairness Hearing on a date approximately ninety (90) days from the date of the Preliminary

Approval Order;

6. Preliminarily certifying a class for settlement purposes only, pursuant to Rule

23(e) of the Federal Rules of Civil Procedure, covering the claims brought under the DCMWA

and the D.C. Sick Leave Act (“Rule 23 D.C. Class);

7. Preliminarily certifying a class for settlement purposes only, pursuant to Rule

23(e) of the Federal Rules of Civil Procedure, covering the claims brought under the MWHL and

the MWPCL (“Rule 23 Maryland Class”)

8. Approving Shayn Stephens and Vanessa Calvillo as Class Representatives of the

Rule 23 D.C. Class;

9. Approving Vanessa Calvillo as the Class Representative of the Rule 23 Maryland

Class.

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Page 32 of 33

10. Approving Molly A. Elkin as Class Counsel; and

11. For such other and further relief as the Court may deem just and proper.

Dated: August 21, 2018

Respectfully submitted,

/s/ Molly A. Elkin

Gregory K. McGillivary Molly Elkin T. Reid Coploff Sarah M. Block WOODLEY & McGILLIVARY LLP 1101 Vermont Ave., N.W. Suite 1000 Washington, DC 20005 Phone: (202) 833-8855 gkm@wmlaborlaw.com mae@wmlaborlaw.com trc@wmlaborlaw.com smb@wmlaborlaw.com

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Case 1:17-cv-01087-TJK

Document 56-1

Filed 08/21/18

Page 33 of 33

CERTIFICATE OF SERVICE

The undersigned attorney certifies that on August 21, 2018 a copy of the foregoing

document and accompanying exhibits were served on the following individuals by filing the

document on the Court’s CM/ECF system:

Meredith S. Campbell

SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A.

12505 Park Potomac Ave., Sixth Floor

Potomac, MD 20854 Phone: (301) 255-0550 mcampbell@shulmanrogers.com

Joy C. Einstein SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A.

12505 Park Potomac Ave., Sixth Floor

Potomac, MD 20854 Phone: (301) 945-9250 jeinstein@shulmanrogers.com

/s/ Molly A. Elkin

Molly A. Elkin WOODLEY & McGILLIVARY LLP 1101 Vermont Ave., NW Suite 1000 Washington, DC 20005 Phone: (202) 833-8855 Fax: (202) 452-1090 mae@wmlaborlaw.com

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