United States District Court, W.D. New York
CYNTHIA AUGUSTYNIAK, DENISE GIAMBRONE, & JULIE GLOVER, on behalf of themselves and all others similarly situated, Plaintiffs,
LOWE'S HOME CENTER, LLC,; LOWE'S HOME CENTERS, INC.; LOWE'S COMPANIES, INC.; and LOWE'S HIW, INC., Defendants
For Cynthia Augustyniak, Denise Giambrone, on behalf of themselves and all others similarly situated, Plaintiffs: Dale J. Morgado, LEAD ATTORNEY, Feldman Morgado PA, Miami, FL; Mitchell Lloyd Feldman, PRO HAC VICE, Feldman Morgado, P.A., Tampa, FL.
For Lowe's Home Centers, LLC, Lowe's Home Centers, Inc., Lowe's Companies, Inc., Lowe's HIW, Inc., Defendants: Shawn Patrick Regan, LEAD ATTORNEY, Hunton & Williams LLP, New York, NY; Juan C. Enjamio, PRO HAC VICE, Hunton & Williams LLP, Miami, FL.
DECISION AND ORDER
Jeremiah J. McCarthy, United States Magistrate Judge.
The parties have consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c) . Submitted for my consideration is the parties' " Joint Motion for Approval of Settlement Agreement and Conditional Certification of an FLSA Collective Action for Settlement Purposes" (the " Joint Motion" ) , accompanied by " Plaintiffs/Class Counsel's Unopposed Motion for Approval of Common Fund Attorneys' Fees, Expenses and Costs" (the " Fee Motion" ) .
The parties argue that " the Settlement Agreement . . . is fair and reasonable" . Joint Motion, p. 11. After carefully considering both motions and discussing my concerns with counsel on April 23, 2015 , I conclude that the parties have not established their entitlement to conditional certification of an FLSA collective action, and that in any event the proposed settlement is neither fair nor reasonable. Therefore, both motions are denied.
Plaintiffs are or were employed by one or more of the defendants (collectively referred to as " Lowe's" ) as human resources managers (" HRMs" ). According to the Joint Motion, " [p]laintiffs allege that [Lowe's] violated the . . . FLSA, and the New York Labor Law, § § 651(5) and (6), 190(2) and (3) ('NYLL'), by failing to pay them overtime for all hours worked over forty each week" . Joint Motion , p. 1.
That statement is not completely true. Of the three named plaintiffs, only Ms. Glover alleges an FLSA violation. Amended Complaint , p. 2 and ¶ ¶ 76 et seq. Ms. Augustyniak " falls outside of the two and three year statute of limitations provided for under the FLSA" (id., ¶ 29), and therefore asserts claims only " pursuant to the [NYLL] and applicable regulations" (id., p. 2). Ms. Giambrone does likewise, since she was last employed by Lowe's on July 19, 2011 (id., ¶ 34), more than three years prior to the amendment of the Complaint to first assert an FLSA violation.
The Lytle Action
Counsel for the parties to this action were previously involved in another FLSA action against Lowe's in the United States District Court for the Middle District of Florida commenced by another HRM, Lizeth Lytle, on behalf of herself and others similarly situated (Case No. 8:12-cv-1848-T-33TBM) (" Lytle" ). They describe that action as " parallel and virtually identical" to this case (Joint Motion , p. 11), and suggest that the court-approved settlement of that action on November 7, 2014 " is almost identical in all significant respects to the settlement the parties propose for approval through this Joint Motion" . Id., p. 3.
The Proposed Collective Action Settlement
The Joint Motion seeks " to certify a collective action for settlement purposes under the FLSA and send notice to all persons who worked as a HRM for [Lowe's] during a defined period [and] pay settlements to all members of the Plaintiff Class who file consents to join this lawsuit" . Joint Motion , p. 4. Although the Amended Complaint also seeks class certification for the NYLL claims, the Joint Motion does not request certification of that class, for settlement purposes or otherwise. " Because this is a settlement agreement under the FLSA, and the parties are not asking for a settlement under [Fed. R. Civ. P. (" Rule" )] 23, there are no absent class members." Id., p. 8.
The proposed FLSA " class"  consists of " all individuals who worked as a HRM at any Lowe's store outside of New York beginning April 18, 2011", and " individuals who worked as HRMs in a store in New York beginning April 18, 2008" . Id., p. 5. The proposed settlement contemplates that the Lowe's would fund a payment of up to $3 million to class members and up to $1.5 million for attorney's fees. Id., p. 6. The $3 million would be based on an average payment of $3,700 for every person who opts in to the lawsuit, assuming that over 800 of the approximately 2,279 class members do so. Id., p. 7. The settlement would be apportioned among the opt-in plaintiffs based on the number of work weeks each individual opt-in plaintiff worked during the relevant class period; thus, a plaintiff who worked as a HRM during most of that period may receive over $8,000, while a plaintiff who worked as a HRM only a few weeks would receive less than $1,000. Id. However, in addition to their shares of the settlement, each of the three named plaintiffs would receive a $3,000 " incentive payment" . Id., p. 8.
Lowe's would reserve the right to opt out of the settlement if the amount to be distributed to the class were to exceed $3 million. Id., p. 7. Furthermore, Lowe's would not be obligated to segregate funds for the $3 million settlement (Settlement Agreement [42-1], § 6(a)(i)), ...