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King v. Trek Travel, LLC

United States District Court, W.D. Wisconsin

December 12, 2019

ZEB KING, Individually and on behalf of all those similarly situated, Plaintiff,
TREK TRAVEL, LLC, Defendant.


          WILLIAM M. CONLEY District Judge

         Named 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.


         In this 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.)

         A. Overview of Settlement Agreement

         The 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.)

         B. Notice Process

         After 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. (Id.)

         C. Objections and Exclusions

         In 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.)


         Federal 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.

         I. Incentive Award

         The 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 ...

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