United States District Court, W.D. Wisconsin
ZEB KING, Individually and on behalf of all those similarly situated, Plaintiff,
TREK TRAVEL, LLC, Defendant.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
plaintiff and class representative Zeb King brought this
collective and class action lawsuit against Trek Travel, LLC
(“Trek Travel”), seeking to recover unpaid
overtime wages. The parties have now reached a settlement,
and before the court is plaintiff's unopposed motion for
final approval of the class action settlement. (Dkt. #49.)
Plaintiff has also filed an unopposed motion for class
counsel's costs and attorneys' fees. (Dkt. #45.) The
court held a fairness hearing on December 12, 2019. For the
reasons below, the court will grant both motions.
lawsuit, plaintiff Zeb King alleged that his former employer,
Trek Travel, failed to pay him and similarly-situated
employees overtime wages in violation of state law and the
federal Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 203. On March 29, 2019, the parties submitted a
stipulation for class certification and plaintiff submitted
an unopposed motion for preliminary approval of settlement
agreement, which the court approved. (Joint Stipulation for
Class Certification (dkt. #40); Pl.'s Unopposed Mot. for
Prelim. Approval of Settlement Agreement (dkt. #41); Order
(dkt. #44).) The class in this case is defined as
“[a]ll U.S. citizens who live in the U.S. and
contracted with Trek Travel to work as Tour Guides and
performed work as Tour Guides for Trek Travel at any time
between May 10, 2016 and September 20, 2018 that exceeded 40
hours during any workweek.” (Order (dkt. #44) 3.) The
class consists of sixty-one individuals. (Zoeller Decl. (dkt.
#47) ¶ 10.)
Overview of Settlement Agreement
settlement creates a common fund of $425, 000 to be used to
pay participating class members claims, costs, attorneys'
fees, and an enhancement payment to the named plaintiff.
(Settlement Agreement (dkt. #43-1) 3-4.) Class members will
receive a prorated amount based on the value of their
individual claims and agree to release any claims, damages,
or causes of action related to the present dispute.
(Id. at 3.) Allocations for each class member were
calculated based on the number of individual overtime hours
worked, with adjustments made based on whether those weeks
were worked in the United States or abroad, and whether they
fell within the two-year statute of limitations (or within
the third year for the FLSA opt-ins). (Pl.'s Br. Final
Approval (dkt. #50) 3-5; Pl.'s Br. Mot. for Prelim.
Approval (dkt. # 42) 10-13.) The average claim value for
class members is $4, 668.03. (Pl.'s Br. Attorneys'
Fees & Costs (dkt. #46) 18.) Additionally, the settlement
proposes an incentive award of $1, 500 to be paid to class
representative Zeb King and an award of $140, 250 --
representing one third of the settlement fund -- to be paid
to class counsel as attorneys' fees inclusive of costs.
(Settlement Agreement (dkt. #43-1) 4.)
the court granted preliminary approval and leave to send
notice to class members on September 16, 2019, class counsel
sent a notice to the class members via electronic and U.S.
mail on September 30, 2019. (Zoeller Decl. (dkt. #47) ¶
12.) Class counsel represented that they responded to
inquiries from class members about the settlement.
Objections and Exclusions
accordance with the court order, the notice period ran for
forty-five days after the mailing of the notice.
(See Zoeller Decl. (dkt. #47) ¶¶ 12-13.)
At the close of the notice period, no class members had
objected to the settlement and only one class member
requested exclusion, representing less than 2% of the
proposed class. (Id. ¶ 13.)
Rule of Civil Procedure 23 provides that a court may approve
a proposed class action settlement only if it determined that
the settlement is “fair, reasonable, and
adequate.” Fed.R.Civ.P. 23(e)(2). Based on the December
12, 2019, fairness hearing at which only the parties'
counsel appeared, as well as on their representations, the
parties' written submissions, the lack of any objections,
and the entire record in this case, the court concludes that
the parties' settlement is fair, reasonable and adequate
pursuant to Rule 23(e) and that the settlement represents a
fair and reasonable resolution.
settlement agreement provides that named plaintiff Zeb King
will receive an additional incentive fee of $1, 500.
(Settlement Agreement (dkt. #43-1) 4.) “Incentive
awards are justified when necessary to induce individuals to
become named representatives.” In re Synthroid
Mktg. Litig., 264 F.3d 712, 722 (7th Cir. 2001). In
deciding whether an incentive award is appropriate and what
the amount should be, the Seventh Circuit advised that courts
may consider “the actions the plaintiff has taken to
protect the interest of the class, the degree to which the
class has benefited from ...