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James Odom, Edward West, and Christopher Jones On Behalf of v. Hazen Transport

August 5, 2011


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



By order dated July 29, 2010, the above-captioned matter has been referred to the undersigned for the supervision of pre-trial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 8). The parties have further stipulated to the jurisdiction of this Court for the sole purpose of determining whether to approve a settlement agreement reached by the parties, pursuant to Rule 23 of the Federal Rules of Civil Procedure. (Docket # 21). For the reasons that follow, the proposed settlement is approved.


This case arises from defendant's alleged failure to pay appropriate overtime wages and alleged improper deductions from plaintiffs' pay. The named plaintiffs, James Odom, Edward West and Christopher Jones, filed suit on behalf of themselves and all other similarly-situated individuals against defendant Hazen Transport, Inc. ("Hazen"). (Docket # 1).

The named plaintiffs worked as delivery drivers for Hazen and were classified by Hazen as "independent contractors." Plaintiffs contend that they were in fact employees of Hazen by virtue of the degree of control that Hazen exerted over their hours, ability to work for other companies, delivery routes and attire. Plaintiffs assert that they frequently worked in excess of forty hours in a week without compensation for those excess hours. In addition, the named plaintiffs contend that Hazen improperly deducted the cost of leasing the trucks and other fees from their pay. These pay practices, plaintiffs allege, violated the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. ("FLSA"), and the New York Labor Law ("N.Y. Labor Law"). (Id.).

After this case commenced, the parties engaged in limited discovery to identify the potential class members and to calculate the number of overtime hours they worked, their relevant rates of pay and the deductions taken from their pay. (Docket # 28). Following that discovery, the parties entered into settlement negotiations that resulted in the settlement agreement dated March 11, 2011, currently pending before this Court for final approval (the "Settlement Agreement" or "Class Settlement"). (Id.). On April 29, 2011, this Court issued an Order preliminarily approving the Settlement Agreement, certifying the class for settlement and ordering that notice be mailed to all potential class members (the "Notice"). (Docket # 34). The Notice described the pending suit and proposed Class Settlement and explained that class members could participate in the settlement, object to final approval of the settlement or request exclusion from the settlement by "opting out" of the class. (Id.).*fn1

The class is defined as "sixteen (16) persons or entities who contracted with Hazen and provided delivery services in New York for or on behalf of Hazen and who were classified as independent contractors." (Docket # 34). Under the Settlement Agreement, Hazen would pay each class member two sums: the first from a portion of a common fund of $39,000 that represents his or her percentage of overtime worked in relation to the other class members; the second, a portion of a common fund of $79,000 that represents his or her percentage of allegedly improper deductions in relation to those of other class members. The Settlement Agreement further provides that plaintiffs who do not opt out of the Class Settlement agree to release all claims against Hazen arising from the alleged non-payment of overtime compensation and improper deductions.

As the Notice advised, any class members who wished to opt out of the class or to file objections to the Settlement Agreement were required to do so by May 26, 2011. No objections were received by this Court, nor did any of the sixteen potential class members elect to opt out. Finally, class members were also advised that a hearing would be conducted by this Court on June 6, 2011, to determine whether to approve the Class Settlement, and they were invited to attend the hearing to express their views relating to the adequacy of the settlement. At that hearing, counsel for the parties argued in support of the Class Settlement. One class member, Timmy Jenison, attended the hearing and urged approval of the settlement.


The parties jointly argue that class certification in this matter is appropriate pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure and that the proposed settlement is fair, reasonable and adequate. This Court is also presented with an application for attorneys' fees to be paid to plaintiffs' counsel pursuant to Rule 23(h).

I. Class Certification

Certification of a class action is governed by Rule 23 of the Federal Rules of Civil Procedure. To qualify for class certification, a putative class must satisfy the four requirements of Rule 23(a), as well as the requirements of one of the three subsections of Rule 23(b). Under Rule 23(a), certification of a class action is appropriate if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

Rule 23(b)(3) provides that an action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied and, in addition: the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (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).

This Court first will consider whether class certification is appropriate in light of the four requirements set forth in Rule 23(a).

A. Numerosity: The numerosity requirement under Federal Rule 23(a) is satisfied when the class is "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "Impracticable does not mean impossible." Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Rather, it refers to the burden that would be imposed by joinder. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Noble v. 93 University Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004) ("[i]mpracticability does not mean impossibility of joinder, but refers to the difficulty or inconvenience of joinder") (quotation omitted).

While a potential class of forty members is generally considered sufficiently numerous, see Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d at 483, a court evaluating the appropriateness of class certification must consider more than mere numbers alone. See Robidoux v. Celani, 987 F.2d at 936. Rather, a determination of practicability should be based upon all the circumstances surrounding the case. Id. The court should consider such relevant factors as: "judicial economy arising from the avoidance of a multiplicity of actions, . . . financial resources of class members, [and] the ability of claimants to institute individual suits." Id. (citing 1 Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels § 3.06, at 143 (2d ed. 1985)). See also Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d 648, 653 (4th Cir. 1967) (class of eighteen individuals found sufficiently numerous); Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990) (certification of class may be proper even with class as small as fourteen members); Meyer v. Stevenson, Bishop, McCredie, Inc., 1976 WL 788, *2 (S.D.N.Y. 1976) (certifying class of thirty individuals); Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452, 463 (E.D. Pa. 1968) (class of twenty-five individuals satisfied numerosity requirement).

In this matter, the parties jointly seek class certification for a class of sixteen individuals who worked as truckers. While joinder of these individuals is certainly not impossible, it is nonetheless improbable under the circumstances of this case. The small recoveries that many of the class members could reasonably expect to recover even if they prevailed on the merits makes it unlikely that, absent the benefit of class representation, they would choose to bear the costs of individual lawsuits. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) ("[w]here it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device"); Robidoux, 987 F.2d at 936 (court should consider the financial resources of class members, as well as their ability to institute individual suits). In addition, the more efficient use of judicial resources counsels in favor of class certification in this matter. Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. at 463 ("[w]hile 25 is a small number . . . , it is a large number when compared to a single unit. I see no necessity for encumbering the judicial process with 25 lawsuits, if one will do"). Accordingly, I find that the numerosity requirement has been satisfied.

B. Commonality: Rule 23(a)(2) requires the existence of "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). The purpose of this requirement is to test "whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). This requires a showing that the class members "have suffered the same injury" involving a "common contention" that, in determining "its truth or falsity[,] will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (internal quotation omitted). Thus, the question of class certification turns on whether the class action has the capacity to "generate common answers apt to drive the resolution of the litigation." Id. (emphasis omitted). Courts have generally construed the commonality requirement liberally and require that only one issue be common to all class members. See id. at 2556; Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198-99 (S.D.N.Y. 1992).

In the case at bar, all plaintiffs have raised the identical claim that they were incorrectly classified as independent contractors and thus denied overtime compensation by Hazen for hours worked over forty in certain work weeks and subjected to improper deductions. In determining liability, the question of whether Hazen is an employer under the relevant statutes appears to be an issue common to all plaintiffs and central to a resolution of the claims. I therefore find that the commonality requirement has been satisfied.

C. Typicality: The typicality requirement of Rule 23 requires that the claims of the representative party be typical of the claims of the class. Fed. R. Civ. P. 23(a)(3). Like the commonality requirement, typicality does not require the representative party's claims to be identical to those of all class members. Trief v. Dun & Bradstreet Corp., 144 F.R.D. at 200. See also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999) (commonality and typicality tend to merge "because 'both serve as guideposts for determining whether . . . the named plaintiff's claims are so inter-related that the interests of the class members will be fairly and adequately protected in their absence'") (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. at 157 n.13), cert. denied, 529 U.S. 1107 (2000). The representative party has demonstrated typicality when "each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992).

Here, the named plaintiffs' claims arise from the same circumstances as those that give rise to the class members' claims. Thus, the legal arguments raised by the named plaintiffs will be typical of those of all class members. For these ...

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