Molina et al v. Ace Homecare LLC

Middle District of Florida, flmd-8:2016-cv-02214

Unopposed MOTION to Certify Class and for Preliminary Approval of WARN Act Settlement, and for Final Approval of FLSA Settlement by Toni Molina.

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3 PageID 746 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION TONI MOLINA, et al., Plaintiffs, v. CASE NO.: 8:16-cv-02214-JDW-TGW ACE HOMECARE, LLC, BRL INVESTMENTS, LLC, ARTHUR BARLAAN, and JOCELYN BARLAAN, Defendants. ____________________________________/ UNOPPOSED MOTION FOR APPROVAL OF FLSA COLLECTIVE ACTION SETTLEMENT, AND PRELIMINARY APPROVAL OF WARN ACT CLASS ACTION SETTLEMENT AND SUPPORTING MEMORANDUM OF LAW Plaintiffs, by and through their undersigned counsel, hereby submit the following Motion for Preliminary Approval of their FLSA Collective Action Settlement, and for Preliminary Approval of their Rule 23 WARN Act Class Action Settlement and state as follows: PRELIMINARY STATEMENT Subject to Court approval, the parties have settled Named Plaintiff Toni Molina's and the FLSA opt-in collective members and WARN Act Class Action Members' (collectively "Plaintiffs") claims against ACE HOMECARE, LLC ("Ace"), BRL INVESTMENTS, LLC ("BRL"), individual Defendant ARTHUR BARLAAN, and individual Defendant JOCELYN BARLAAN (collectively "Defendants") and (collectively "The Parties"). The proposed settlement agreements resolve all claims in the lawsuit alleging that Defendants' failed to pay the minimum wages allegedly owed by the Defendants pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 (2012) et seq., and for Ace Homecare, LLC 1 3 PageID 747 and BRL Investments, LLC's violations of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. ("WARN Act"), when they did not provide sixty (60) days' notice of closing their business. If approved, the two settlements would resolve all of the claims in the lawsuit against all Defendants via entry of a stipulated judgments for agreed-upon amounts. Specifically, the Parties respectfully request that the Court: (1) approve the FLSA Settlement Agreement -- attached as Exhibit A – which includes an agreement by Defendants to entry of a judgment (see A-1) against them in favor of the opt-in Plaintiffs to the FLSA collective action relief for their unpaid minimum wage claims and liquidated damages totaling $94,133.57, plus attorneys' fees and costs; (2) grant preliminary approval of the WARN Act Class Action Settlement Agreement (attached as Exhibit B), which also includes an agreement to the entry of a judgment against Ace and BRL Investments, LLC in the amount of $290,000 in favor of Plaintiffs, (a copy of which is attached as Exhibit B-1); (3) approve the Notice of Settlement and Preliminary Approval of the WARN Class Action Lawsuit (attached as Exhibit B-2); and, finally (4) set a final fairness hearing for the WARN Act settlement. I. FACTUAL AND PROCEDURAL HISTORY. Defendants operated a home health agency that had several locations in the State of Florida and employed hundreds of employees. The Plaintiffs were employed by Ace until their termination when all of Ace's facilities were shut down due to Medicare's retroactive suspension of all reimbursements to Ace as part of a Medicare audit. Medicare reimbursements accounted for over 95% of Ace's income. Accordingly, Ace was unable to make payroll and was unable to continue operations after the Medicare suspension. Ace is still battling with Medicare, however, as of the date of this filing, Medicare still has not released any of the reimbursements due and owing to Ace. On August 1, 2016, the Plaintiffs filed a hybrid class and collective action Complaint in the United States District Court for the Middle District of Florida, asserting violations of the FLSA, 2 3 PageID 748 the WARN Act, and for Unpaid Wages under Florida Common Law. (See Dkt. 1). On September 20, 2016, Plaintiffs' filed an Amended Complaint. (See Dkt. 9). Defendants filed their Answer to the operative Complaint on December 8, 2016, disputing the material allegations and denying any liability in the proposed class action. (See Dkt. 24). On August 21, 2017, the Court granted Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) and ordered a Fair Labor Standards Act Collective Action and Authorize Notice to be Issued to similarly-situated persons. (Dkt. 54). Id. Since the Court's conditional certification of the FLSA claims, one hundred and fifteen (115) individuals timely opted-in to this matter plus the Named Plaintiff, Toni Molina, for a total of (116) individuals with timely FLSA minimum wage claims. (Dkt. 79). Two others were later permitted to join by agreement of the Parties. Additionally, on September 18, 2017, the Court granted in part Plaintiff's Rule 23 Motion for Class Certification as to the Warn Act claims, appointed Toni Molina as class representative, and appointed Plaintiffs' Counsel Wenzel, Fenton, Cabassa, P.A. and Black Rock Trial Group as class counsel. (Dkt 70). 1 The WARN Act class Notice was approved by the Court and subsequently went out on October 31, 2017 to the 400 putative class members. The Notice provided WARN Act class members with 60 days to opt-out and/or object. No objections were received and only 2 of the 400 WARN Act class members opted-out. (Dkt. 80). This was all before any settlement agreements were reached as to either the FLSA or WARN Act claims. 1 Plaintiffs withdrew their request for class certification as to the Unpaid Common Law Wage Claims. (Dkt. 66). 3 3 PageID 749 II. OVERVIEW OF LITIGATION, PROCEDURAL HISTORY, AND SETTLEMENT NEGOTIATIONS. Over the course of approximately the last eighteen (18) months, the parties engaged in heavy litigation. Plaintiffs' counsel has conducted extensive investigation and prosecution of the claims in the lawsuit, including, but not limited to, extensive discussions with the Named and Opt- in Plaintiffs, reviewing hundreds of pages of documents produced by Defendants (including time and payroll data), deposing the owners and individually named Defendants Arthur Barlaan and Jocelyn Barlaan, reviewing internal letters and other communications regarding Defendant Ace's financial status and the Medicare reimbursement freeze, providing Rule 26(a) disclosures, sending out extensive written discovery, performing a significant amount of legal research, preparing for and attending mediation, preparing and sending out notice to all FLSA collective and WARN Act class members, successfully moving for summary judgment as to liability against individually named Defendants, Arthur Barlaan and Jocelyn Barlaan, and engaging in extensive settlement negotiations. In addition, the parties prepared for and attended a mediation with Peter J. Grilli, Esq. on August 23, 2017. (Dkt. 58). The Parties were finally able to come to a settlement in principle and submitted their Notice of Settlement on January 1, 2018. The terms of the settlements were memorialized in two separate formal agreements which include stipulated judgments. See Exhibits A and A-1, and Exhibits B and B-1. At all times during the settlement negotiation process, negotiations were conducted at an arm's-length basis. Fees and costs were discussed separately and not agreed to until after the Plaintiffs' recovery was decided. THE FLSA SETTLEMENT AGREEMENT As noted herein, the Parties, subject to this Court's Approval, have entered into a Settlement Agreement with respect to the FLSA portion of the case. A copy of the FLSA 4 3 PageID 750 Settlement Agreement is attached as Exhibit A, which includes stipulated judgments by all Defendants in favor of all opt-ins for an amount totaling $94,133.57. See A-1. For the time period at issue, this is the full amount of the damages sought by the opt-ins who timely submitted claims, plus their liquidated damages, plus Named Plaintiff Toni Molina's claim (and two additional opt- ins the Parties agreed to include by name, Patricia Conklin and David Moore). In accordance with Bonetti v. Embarq Mngm't Co., 715 F.Supp.2d 1222 (M.D. Fla. Aug.4, 2009), the Parties separately negotiated fees and costs to be paid to Plaintiffs' counsel totaling $100,000, which is also made part of the stipulated judgment. The Parties now request this Court approve the FLSA Settlement Agreement and enter the stipulated final judgment as to the FLSA claims. I. THIS COURT SHOULD APPROVE THE FLSA SETTLEMENT AGREEMENT. There are two ways in which claims for unpaid compensation owed pursuant to the FLSA may be compromised or released by an employee. Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-53 (11th Cir. 1982). The first, which has no application in the instant case, permits resolution of claims under the supervision of the United States Department of Labor. Id. The second, which does apply in the instant case, permits judicial approval of disputed claims on terms that are fair and reasonable: Settlements may be permissible in the context of a suit brought by employees under the FLSA for back wages because initiation of the action by the employees provides some assurance of an adversarial context. The employees are likely to be represented by an attorney who can protect their rights under the statute. Thus, when the parties submit a settlement to the court for approval, the settlement is more likely to reflect a reasonable compromise of disputed issues than a mere waiver of statutory rights brought about by an employer's overreaching. If a settlement in an employee FLSA suit does reflect a reasonable compromise over issues, such as FLSA coverage or computation of back wages that are actually in dispute, we allow the district court to approve the settlement in order to promote the policy of encouraging settlement of litigation. Id. at 1354. 5 3 PageID 751 In compliance with this Court's Order conditionally certifying the two FLSA putative classes, the Plaintiffs sent Notices to all of the FLSA potential collective class members during the notice period. As noted herein, of the approximately 400 putative members of the FLSA collective classes, during the Notice period one hundred and thirteen (113) individuals submitted the Court-approved Opt-In forms, or 28%. (See Dkt. 79)2. Two others provided late opt-ins and are made part of this settlement. This is a very high return rate and weighs heavily in favor of approval of the FLSA Settlement Agreement. In fact, most FLSA collective actions have an average opt-in rate of only between 10-20%, "with virtually no estimates higher than 30%." 3 The Parties agree that the instant FLSA claim involves disputed issues. However, more importantly, the Parties further agree that the settlement negotiated and reached by the Parties reflects full payment for unpaid minimum wages to the Plaintiffs for the two weeks at issue, plus full liquidated damages. A. The FLSA Settlement and Stipulated Judgments. The Parties have agreed to settle all of Plaintiffs' FLSA minimum wage claims for a total of $94,133.57. For the time period at issue this amount is for the full value of the Plaintiffs' FLSA claims plus liquidated damages.. This Court has noted that the factors for evaluating the fairness of a class action settlement provide a familiar starting point, including: (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and 2 For various reasons, the parties have agreed in allow an additional 2 employees to opt-in even though these employees submitted late "opt in' notices. 3 Todd Dawson, April 2, 2012, In Through the Out Door: Third Circuit Says FLSA Collective Actions Not Incompatible With Rule 23 State Law Class Actions, available at actions-not-incompatible-with-rule-23-sta/. 6 3 PageID 752 the amount of discovery completed; (4) the probability of the plaintiff's success on the merits; (5) the range of possible recovery; and (6) the opinions of counsel. Id. at 1241 (citations omitted). Here, all factors weigh in favor of approval of the settlement and entry of the stipulated FLSA judgment. a. There is no fraud or collusion behind the settlement. Courts have found no fraud or collusion where both parties were represented by counsel and the amount to be paid to plaintiffs seemed fair. See Bonilla v. Shiner's Car Wash, 2014 U.S. Dist. LEXIS 66297, at * 5 (M.D. Fla. 2014). Here, each party was independently represented by counsel with substantial experience litigating FLSA claims. As evidenced by the Court record in this case, counsel advocated on behalf of their respective clients vigorously. There was no fraud or collusion behind the settlement. b. The complexity, expense, and length of future litigation militate in favor of the settlement. Litigating, rather than settling the FLSA claims in this matter, would require both sides to incur significant additional costs and fees. Even if it were just on liability as to the FLSA claims, trial was expected to last several days, and with potentially over well over 100 different Plaintiffs, multiple Defendants and multiple non-parties, not to mention potentially several hundred exhibits that would have potentially been offered. Settlement in the form of a judgement in favor of the Plaintiffs is obviously preferable for Plaintiffs, and saves a substantial amount of time, money, and judicial resources. c. The stage of the litigation weighs in favor of approval of the settlement. This case was on the Court's February 2018 trial calendar at the time it settled. Discovery had been completed, and the parties had begun trial preparations.. Plaintiffs had already moved for and been granted summary judgment as to liability as to the individual Defendants. Thus, each side was aware of the other's factual and legal arguments, along with the evidence supporting 7 3 PageID 753 same. The Parties were in a position to thoroughly evaluate the merits of their respective claims and defenses. d. Plaintiffs' probability of success on the merits. Plaintiffs had a high probability of success on the merits, which is why they are receiving the full two weeks at issue in this lawsuit of unpaid minimum wages, plus, liquidated damages, plus attorney's fees and costs. e. The Parties weighed the opinions of counsel in deciding whether to settle. The Parties agree they weighed the opinions of their respective counsel in deciding whether to settle. B. The Attorneys' Fees Sought from the FLSA Settlement are Fair and Reasonable. This Court noted in Dees that a compromise must award the plaintiff's counsel a reasonable fee. Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227 (M.D. Fla. 2010). Although here there was no compromise, in Dees the Court also noted,, however, that it need not scrutinize the amount of a plaintiff's attorneys' fee when it was agreed upon separately and without regard to the amount paid to the plaintiff, unless the settlement does not appear reasonable on its face or there is reason to believe that the plaintiff's recovery was adversely affected by the amount of fees paid to his attorney. See Bonetti v. Embarq Mgmt. Co., 715 F. Supp. 2d 1222, 1228 (M.D. Fla. 2009); see also Dees, 706 F. Supp. 2d at 1243 (quoting Bonetti). Such is the case here. The fee to be paid under this settlement to Plaintiffs' counsel, $100,000, was negotiated separately from the amount to be paid to Plaintiffs. The settlement is reasonable on its face, including the fee amount. As stated above, Plaintiffs' fees and costs were negotiated separately from the amount payable to Plaintiffs under this settlement, and the Parties stipulate this sum is "reasonable" in light of the stage of the proceedings and the work performed to date by Plaintiffs' counsel. 8 3 PageID 754 In sum, the case was a few months from going to trial by the time it settled. Discovery in this case was extensive, including written discovery, as was Motion practice and the number of opt-in Plaintiffs involved. As such, the Court should approve the settlement and enter the stipulated FLSA judgment. THE WARN ACT SETTLEMENT AGREEMENT After vigorous litigation and extensive arm's-length negotiations, the Parties have agreed to settle the WARN Act class action portion of this case, subject to Court review and approval, notice to Class members, and adherence to procedures designed to protect absent Class members' rights and to afford due process protection to the Class. The Court previously certified the Class over Defendants' objection by Order dated September 18, 2018 (Dkt. 70). Further, this Court appointed Plaintiff Toni Molina as class representative, and the law firm Wenzel, Fenton, Cabassa, P.A. and Black Rock Trial Group as class counsel. The Court certified the following Class. WARN Act Class: Any employee of ACE HOMECARE, LLC in Florida who was not given a minimum of 60 days' written notice of termination and whose employment was terminated as a result of a "mass layoff' or "plant closing" as defined in CFR 639.3 and regulated by federal statute as codified under 29 U.S.C. § 2101 under the Workers Adjustment and Retraining Notification Act of 1988. The class excludes "part-time" employees as defined under 29 U.S.C. § 2101(a)(8). During the initial Notice period, before any settlement was reached, only two of the 400 class members chose to opt out of the WARN Act portion of the class action. Furthermore, not a single person objected to the initial class notice. Due to the Parties' subsequent reaching of a settlement, the Parties must now seek preliminary approval of the proposed WARN Act settlement. This means another notice must be sent out to notify the class members of the proposed settlement. Thus, the Parties respectfully request this Court grant preliminary approval of the WARN Act Settlement Agreement and secondary notice forms detailing the proposed settlement, pending Court approval. 9 3 PageID 755 I. THIS COURT SHOULD APPROVE THE WARN ACT SETTLEMENT AGREEMENT BECAUSE IT IS A FAIR, ADEQUATE AND REASONABLE RESOLUTION OF THE WARN ACT CLAIMS. Prior to granting preliminary approval of a class action settlement, the Court should determine that the proposed settlement class is a proper class for settlement purposes. See Manual for Complex Litigation (Fourth) § 21.632; Amchem Prods. v. Windsor, 521 U.S. 591, 620 (1997). As noted herein, this Court certified the WARN Act Class over Defendants' objection, holding that certification of the WARN Class was proper: As to the WARN Act Class, class certification is appropriate. All of the potential class members (at least four hundred) were terminated in April 2016 without notice, pay, and other employee benefits as part of plant shutdowns. Plaintiffs were entitled to receive appropriate notice under the WARN Act and did not. And Defendants make no argument to the contrary. I find therefore that the class is so numerous that joinder of all members would be impracticable, there are questions of fact and law common to the class, the claims of the representative is typical of the claims of the unnamed members, and the named representative will be able to represent the interests of the class adequately and fairly. Questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. For these reasons, and for the reasons stated on the record, the WARN Act class will be certified. See Dkt. 70. As of this date, there are three hundred and ninety-eight (398) class members in the WARN Act Class. Since this Court's order granting certification to the WARN Class, the Parties have not discovered any new facts that would alter this Court's finding that class certification is appropriate. Subsequent to the Court's initial certification of the WARN Act class, the Parties entered into a Settlement Agreement as to the WARN Act claims. The WARN Act Settlement Agreement is attached as Exhibit B. Included in Exhibit B is the Settlement Agreement, labeled as B-2, which provides the terms of the settlement and how the settlement proceeds will be distributed. Exhibit B-2 also includes the Proposed Noticed of Settlement and the Proposed Exclusion form which 10 3 PageID 756 gives the class members an opportunity to exclude themselves from the terms of the Warn Act Settlement Agreement if they so choose. A proposed judgment is included as Exhibit B-1. A. Summary Of The Proposed Warn Settlement Agreement The Named Plaintiffs and Defendant ask the Court to approve the Warn Act Settlement Agreement, for the following reasons: (a) The Agreement is the result of arms' length, good-faith negotiations; (b) The Agreement is fair, adequate, and reasonable to all concerned, and is in the form of a stipulated judgment; (c) The Agreement reflects the recognition by the Parties that there are significant, complex issues regarding the application of the WARN Act and the various cases and regulations interpreting the WARN Act to the facts of the case. In this regard, Plaintiffs and Defendants disagree on whether Defendants have any obligation or liability under the WARN Act with respect to the claims of the Settlement Class. (d) To avoid extensive, costly litigation over these issues, the Named Plaintiffs and Defendants, through their respective counsel, engaged in significant negotiations regarding a possible resolution of the WARN Act Litigation through settlement. (e) As a result of the Parties' negotiations, and as fully set forth in the Agreement, Named Plaintiff and Defendants wish to fully and finally compromise, settle, and resolve any and all demands, claims, damages and causes of action, present or future, relating to the WARN Act and other non- asserted claims, of Named Plaintiffs and the proposed Settlement Class members on the terms and conditions set forth in the Agreement. Under the proposed WARN Act Agreement, Defendants Ace Homecare, LLC and BRL Investments, LLC shall agree to entry of judgment against it not to exceed Two Hundred and Ninety Thousand Dollars and Zero Cents ($290,000) (the "Settlement Amount"). The Settlement Amount is inclusive of all attorney fees and costs. The Settlement Amount is roughly equivalent to 2 weeks of Ace's average payroll. The Settlement Amount shall be distributed to the Class on a pro rata basis. Subject to this Court's approval, and if money is collected, Plaintiffs' Counsel 11 3 PageID 757 shall act as Claims Administrator and will disburse the funds in accordance with the Settlement Agreement. The Settlement Agreement also states that Plaintiff's Counsel shall make a separate request to this Court for Attorney's Fees, and this amount shall not exceed one-third of the WARN Act settlement proceeds. B. Benefits to the Settlement Class and Named Plaintiff The Settlement Agreement, if approved, will resolve all claims of the Named Plaintiff and all members of the WARN Act Settlement Class, including punitive damages and attorney's fees and costs in exchange for Ace and BRL's agreement to entry of a judgment against in the amount of $290,000. With the Settlement Class comprised of approximately 398 members, each Settlement Class member who does not opt-out of the settlement would be allocated a gross settlement payment of approximately $725.00. Because Ace and BRL have stipulated to entry of a judgment against it, Class members do not have to submit claim forms to receive a share of the settlement proceeds. Rather, all Class members who do not opt out will simply receive checks if Plaintiffs' counsel is successful in collecting on the judgment. If the requested amounts are granted for attorneys' fees and a Class Representative service award, the parties anticipate that each Class Member will receive a net payment of approximately $492.04. The Named Plaintiff shall have, in addition to the claim provided to him as a member of the Settlement Class, an additional claim in the sum of $2,500 as an Incentive Payment for the services provided to the Settlement Class in connection with the prosecution of this action. The Settlement Agreement also provides that Plaintiff's Counsel's fees and costs and Incentive Payment for the Named Plaintiff are to come out of total Settlement Amount, subject to the Court's approval. Counsel is authorized to file an unopposed petition for up to one-third of the fund as 12 3 PageID 758 attorneys' fees and costs. Neither settlement approval nor the size of the Settlement Amount are contingent upon the full amount of any requested fees or Incentive Payment being approved. C. Administration of Notice Plaintiffs' counsel has agreed to serve as the administrator of notice. Within ten (30) days of the Court's preliminary approval of the Settlement Agreement, Plaintiffs' counsel shall mail the Notice Form, attached to the Settlement Agreement as Exhibit B-2, by U.S. mail to all Settlement 398 Warn Act Class members. The Notice Form shall apprise the Settlement Class of the existence of the Settlement Agreement and of the Settlement Class members' eligibility to recover their pro- rata portion of the settlement proceeds. The Notice shall inform Settlement Class members of: (1) the material terms of the Settlement Agreement; (2) their right to object and how to do so; (3) their right to exclude themselves by opting out and how to do so within 60 days; (4) that they will be bound by the Settlement Agreement if they do not opt out; (5) the date, time and location of the final fairness hearing scheduled by the Court (to be held at least 90 days after Defendant files the required CAFA notice); and (6) that the Court retains the right to reschedule the final fairness hearing without further notice. The Settlement Agreement provides that Class members who choose to opt out or object to the settlement may do so within 60 days of the Notice mailing date. If the Court grants final approval of the settlement, the stipulated judgment set forth above in the amount of $290,000 will be entered against Ace and BRL. D. Attorneys' Fees and Expenses Pursuant to the Settlement Agreement, Class Counsel is authorized to petition the Court for up to one-third of the judgment as attorneys' fees and costs. Class Counsel will file a separate 13 3 PageID 759 motion seeking approval for fees and costs within fourteen days prior to the date set for the final fairness hearing. Defendants agree to not oppose the amount of fees and costs sought by Class Counsel, up to the percentage identified herein. E. Class Action Fairness Act Notice Ace and BRL will cause notice of the proposed settlement to be served upon the appropriate Federal and State officials, as required by the Class Action Fairness Act of 2005 ("CAFA"), and will file a notice of compliance with the Court. III. PRELIMINARY CLASS CERTIFICATION AS TO WARN ACT CLAIMS. As part of preliminary approval of the settlement, the Parties respectfully seek certification of the Settlement Class for the purposes of settlement, as described above. A. The Settlement Class Meets the Requirements of Rule 23(a) A court can certify a settlement class where the proposed class and proposed class representatives meet the four prerequisites in Federal Rule of Civil Procedure 23(a) – numerosity, commonality, typicality, and adequacy of representation – and one of the three requirements of Federal Rule of Civil Procedure 23(b). Here, pursuant to Rules 23(a) and 23(b)(3), Named Plaintiff seeks certification of a defined settlement class (the "Settlement Class") to consist of all persons identified by the Court as members of the WARN Act Class. The proposed Settlement Class here meets the Rule 23(a) prerequisites of numerosity, commonality, typicality, and adequacy of representation. 1. Numerosity The proposed class of approximately 398 individuals is "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). The Court may find the numerosity factor satisfied if the Court concludes it would be difficult, inconvenient, and wasteful to attempt to join 14 3 PageID 760 numerous plaintiffs into one case, using permissive joinder. Further, the nature and size of the individual claims also make joinder impracticable. As such, most of the members of the proposed class do not have claims which are sufficiently large for individuals to pursue on their own. Alberts v. Nash Finch Co., 245 F.R.D. 399 (D. Minn. 2007) (small size of individual claims considered in certifying class action for individuals in a WARN Act action). Additionally, the judicial resources required to remedy the potential 398 WARN Act claims against Ace and BRL at issue in this lawsuit, would be tremendous and wasteful. Therefore, the Settlement Class of approximately 398 persons here is sufficiently numerous. 2. Commonality The United States Supreme Court recently clarified that to satisfy the commonality requirement of Rule 23(a), the plaintiff must "demonstrate that the class members 'have suffered the same injury.'" Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (1982)). Courts in this Circuit have applied Dukes to the commonality analysis, but caution that Dukes does not set an impossible standard for commonality. "[T]his prerequisite does not mandate that all questions of law or fact be common; rather, a single common question of law or fact is sufficient to satisfy the commonality requirement, as long as it affects all class members alike." Klewinowski, 2013 U.S. Dist. LEXIS 130591, at *5-6 (internal quotations and citation to Dukes, 131 S. Ct. at 2556, and others omitted); see also Waters v. Cook's Pest Control, Inc., 2012 U.S. Dist. LEXIS 99129, at *26-27 (N.D. Ala. July 17, 2012). In the instant case, the WARN Act itself recognizes that class actions are the preferred method of resolution of these common issues. See 29 U.S.C. §2104(a)(5). Indeed, courts have 15 3 PageID 761 noted that "[t]he WARN Act contemplates enforcement by class action." Butler-Jones v. Sterling Casino Lines, L.P., 2008 WL 5274384 at *3 (M.D. Fla. Dec. 18, 2008) (citing 29 U.S.C. § 2104(5)); see also Cashman, 225 F.R.D. at 92; Finnan v. L.F. Rothschild & Co. Inc., 726 F. Supp. 460, 465 (S.D.N.Y. 1989) ("The WARN Act seems particularly amenable to class litigation."). In terms of the WARN Act claim, these minimal threshold principles are far exceeded in this WARN Act case where all questions of law and fact appear to be shared in common by the class. The claims of the Settlement Class members are based on the same set, or a similar set, of operative facts. Accordingly, the requirement of commonality has been met. 3. Typicality is satisfied Under Federal Rule of Civil Procedure 23(a)(3), typicality does not require identical claims: The focus of Rule 23(a)(3) typicality is whether the class representative's interests are aligned with the proposed class so as to stand in their shoes for the purposes of the litigation and bind them in a judgment on the merits. The typicality requirement is generally met if the class representative and the class members received the same unlawful conduct, irrespective of whether the fact patterns that underlie each claim vary. "A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3). Typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large." Rosario-Guerro, 265 F.R.D. at 627 (citing Busby v. JRHBW Realty, Inc., 513 F. 3d 1314, 1322 (11th Cir. 2008). The typicality requirement "is said to limit class actions to those fairly encompassed by the named plaintiffs' claims." GTE Co. of the Northwest v. EEOC, 446 U.S. 318, 330 (1980). Here the legal theory underlying the claims of the WARN Act class members is identical to each of the other Plaintiff's claims. All of the claims are based on a substantially identical set 16 3 PageID 762 of facts and are grounded in the same legal theories. The claims of all Class members arise from the same conduct and the same legal theory. Questions that are typical throughout the class members include whether (and when) the terminated employees were covered by the WARN Act, and whether Ace and BRL violated the WARN Act are common to the Class Representative and Class members. In short, the issues of liability are common to the Class. There is nothing to suggest the Named Plaintiff's claims are atypical of the Class and consequently, the typicality requirement of Rule 23(a)(3) has been met for the WARN Act Class. 4. Adequacy of Representation The final requirement of Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the Class. Fed. R. Civ. P. 23(a)(4). The adequacy of representation requirement encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action. Rosario-Guerro, 265 F.R.D. at 628; Valley Drug Co. v. Geneva Pharms., Inc., 350 F. 3d 1181, 1189 (11th Cir. 2003). The Class Representative, Toni Molina, can and will fairly represent the interests of the Class and has no conflicts with or antagonistic to the Class. Las Vegas Sands, 244 F. 3d at 1162 (certifying a class noting "an absence of antagonism"); See also Payne v. Travenol Laboratories, Inc., 673 F. 2d 798, 810 (5th Cir), cert denied, 459 U.S. 1038 (1982). This Court has already determined the same in its Order granting Plaintiffs' Motion for Class Certification. Nothing has changed since then. Moreover, the test of "adequate representation" is whether the class representative has a "sufficient interest in, and nexus with, the class to ensure vigorous prosecution. Wagner v. Central Louisiana Electric Company, Inc., 99 F.R.D. 279, 284 (E.D. La 1983) citing Roper v. Consurve, Inc., 578 F. 2d. 1106, 1112 (5th Cir. 1978). Plaintiff Molina has a sufficient interest in, and nexus 17 3 PageID 763 with, the class. Specifically, she was subjected to Defendants' violation of the WARN Act.. Thus, she plainly fits into the definition for the Proposed Class. As such, her interests are clearly aligned with the Class and she should be allowed to continue as Class Representative. Lastly, Plaintiff Molina retained the undersigned counsel who possess extensive experience litigating employment law claims, including class and collective actions (and even a WARN Act class action before this Court), along with hundreds of employee rights' and consumer cases in Federal courts throughout the country. See, Declaration of Plaintiffs' Counsel, Brandon J. Hill, Luis A. Cabassa, and Chad A. Justice at Docs. 25-6, 30, and 68. When, as here, the Parties are represented by counsel who have significant experience in class-action litigation and settlements, and no evidence of collusion or bad faith exists, the judgment of the litigants and their counsel concerning the adequacy of the settlement is entitled to deference. Thacker v. Chesapeake Appalachia, L.L.C., 695 F. Supp. 2d 521, 532-33 (E.D. Ky. 2010) aff'd sub nom. Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235 (6th Cir. 2011) ("in deciding whether a proposed settlement warrants approval, the informed and reasoned judgment of plaintiffs' counsel and their weighing of the relative risks and benefits of protracted litigation are entitled to great deference"); see, e.g., UAW v. Ford Motor Co., 2008 WL 4104329 at *26 (E.D. Mich. August 29, 2008) ("[t]he endorsement of the parties' counsel is entitled to significant weight, and supports the fairness of the class settlement."). Proposed Class Counsel has represented Rule 23 classes in other cases. For example, the undersigned were recently appointed as co-class counsel in another nationwide FCRA case styled Brown, et al. v. Lowe's Companies, Inc., et al., Case No.: 5:13-CV-00079-RLV-DSC, in the United States District Court for the Western District of North Carolina involving 451,000 class members. Likewise, the undersigned were appointed by this Court as class counsel in both Speer 18 3 PageID 764 v. Whole Food Mkt. Group, Inc., 2015 U.S. Dist. LEXIS 40462, 6 (M.D. Fla. Sept. 16, 2015) (Doc. 58) (granting preliminary approval of class action FCRA settlement), and in Smith v. QS Daytona, LLC, Case No.: 8:15-cv-00347-GAP-KRS (M.D. Fla. Oct. 22, 2015) (Doc. 45) (same). Additionally, Plaintiffs' counsel has demonstrated diligence in pursuit of class claims here. They actively pursued this case from the onset, propounded class wide discovery, took depositions, successfully moved for and secured summary judgment as to liability as to the individual Defendants (as to the FLSA claims) in hopes of protecting the class employees from facing the prospect of recovering nothing should Ace and BRL ultimately be uncollectable. Counsel experienced in plaintiffs' representation in class actions is generally considered adequate under Rule 23(a)(4) in this Circuit. See Waters, 2012 U.S. Dist. LEXIS 99129, at *28 (approving class counsel as adequate where "Plaintiffs' attorneys have demonstrated extensive experience as litigators in federal court class action litigation."). Thus, Plaintiff's proposed Class Counsel have satisfied Rule 23(a). B. The Settlement Class Meets the Requirements of Rule 23(b)(3) Under Rule 23(b)(3), a proposed class must satisfy two factors: predominance and superiority. As discussed below, the proposed Settlement Class meets the requirements of Federal Rule of Civil Procedure 23(b)(3) because common questions of law or fact between the Parties predominate over individual questions, and class action is the best available method for adjudicating this controversy. 1. Predominance Predominance is governed by an analysis of whether liability may be resolved on a class- wide basis. "Under Rule 23(b)(3) it is not necessary that all questions of law or fact be common, but only that some questions are common and that they predominate over the individual questions 19 3 PageID 765. . . In essence, the Court must determine whether there are common liability issues which may be resolved efficiently on a class-wide basis." Battle, 2013 U.S. Dist. LEXIS 29263, at *10-11 (internal citations omitted). Though not a determination on the merits, a Rule 23(b)(3) analysis prevents the class from degenerating into a series of individual trials. Andrews v. AT&T, 95 F.3d 1014, 1023 (11th Cir. 1996). Here, common questions of law and fact predominate. The common legal theory of the WARN Act putative class is based on, obviously, the WARN Act. Each Class member's "underlying cause of action" is identical and each is entitled to the damages as provided by statute. Indeed, courts have noted that "[t]he WARN Act contemplates enforcement by class action. Butler-Jones v. Sterling Casino Lines, LP., 2008 WL 5274384, at *3 (M.D. Fla. Dec. 18, 2008); see also Weeks- Walker, 281 F.R.D. at 523, citing Finnan v. LF Rothschild & Co., Inc., 726 F. Supp. 460, 465 (S.D. N.Y. 1989) ("The WARN Act seems particularly amendable to class litigation."). 2. Superiority The Court must also consider whether the superiority requirement has been met. In making this determination, the Court may consider, among other factors: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. FED. R. CIV. P. 23(b)(3). Here the superiority requirement of Rule 23(b)(3) is easily satisfied. Upon information and belief, members of the Class have not filed individual WARN Act lawsuits against Ace and BRL, other than the claims at issue in the instance matter. 20 3 PageID 766 Moreover, the manageability of handling potentially hundreds of WARN ACT claims against Ace and BRL would be facilitated by the class action vehicle. The alternative of having hundreds of individual claims for damages arising out of the exact same conduct offers neither efficiency nor fairness to Ace and BRL or the Putative Class. The predominance analysis above underscores that where there are more common issues which predominate over individualizes issues, the class action is a desirable vehicle for adjudication of Plaintiffs' and the Putative Class' claims. The aggregation of claims in a class action will inevitably avoid "days of the same witnesses, exhibit and issues from trial to trial." Jenkins v. Raymark, 782 F. 2d 468, 472 (5th Cir. 1986). Indeed, Courts routinely find superiority where, as here, it is unlikely that class members would bring individual actions on their own behalf because the costs of individual litigation would likely outweigh their recovery. See e.g., Jankowski v. Castaldi, No. 01 Civ. 164 (SJF)(KAM), 2006 WL 118973, at *4 (E.D.N.Y. Jan. 13, 2006) (finding superiority where "the proposed class members are sufficiently numerous and seem to possess relatively small claims unworthy of individual adjudication due to the amount at issue). In such circumstances, a class action is particularly appropriate. Accordingly, concentrating all the potential litigation concerning the rights under the WARN Act of the Named Plaintiff and the Putative Class in this Court will avoid a multiplicity of suits, will conserve judicial resources and the resources of the parties, and is the most efficient means of resolving the claims of the Plaintiffs and Putative Class Members. This is especially true here because Plaintiffs have secured a stipulated judgment which, if entered by the Court following final approval and fairness hearing, means Plaintiffs' counsel can begin to try and collect on it immediately to the benefit of the class. 21 3 PageID 767 CONCLUSION For the foregoing reasons, Plaintiff respectfully requests the Court grant the foregoing relief and award all such other relief as is equitable and just. CERTIFICATE OF GOOD FAITH Prior to filing this Motion, Plaintiffs' counsel conferred with Defendants' counsel pursuant to Local Rule 3.01(g) the Defendants do not object to the relief sought herein. Dated this 28th day of February, 2018. Respectfully submitted, /s/Brandon J. Hill LUIS A. CABASSA Florida Bar No. 0053643 BRANDON J. HILL Florida Bar No. 37061 WENZEL FENTON CABASSA, P.A. 1110 N. Florida Avenue, Suite 300 Tampa, Florida 33602 Main No.: 813-224-0431 Facsimile No.: 813-229-8712 Email: Email: Email: Email: Attorneys for Plaintiffs -and- CHAD A. JUSTICE Florida Bar Number: 121559 Direct No. 813-254-1777x106 BLACK ROCK TRIAL LAWYERS 201 S Westland Avenue Tampa, Florida 33606 Main No.: 813-254-1777 Facsimile: 813-254-3999 E-mail: E-mail: Co-Counsel for Plaintiffs 22 3 PageID 768 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28th day of February, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to: Stanford R. Solomon Blake J. Fredrickson The Solomon Law Group, P.A. 1881 West Kennedy Boulevard Tampa, FL 33606 /s/Brandon J. Hill BRANDON J. HILL 23