Case: 1:20-cv-04937 Document #: 37 Filed: 03/12/21 Page 1 of 24 PageID #:146
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`DOUGLAS CANAS and VANESSA
`MESCHINO, on behalf of themselves and all
`other plaintiffs similarly situated,
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`v.
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`SMITHFIELD PACKAGED MEATS
`CORP., SMITHFIELD FRESH MEATS
`CORP., AND KANSAS CITY SAUSAGE
`COMPANY, LLC.
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`Case No.: 1:20-cv-04937
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`Hon. Judge John Robert Blakey
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`Mag. Judge Sunil R. Harjani
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`Plaintiffs,
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`Defendants.
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`PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY
`APPROVAL OF COLLECTIVE AND CLASS ACTION SETTLEMENT AND FOR
`CERTIFICATION OF CLAIMS PURSUANT TO F. R.C.P.23 FOR SETTLEMENT
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`Plaintiffs Douglas Canas and Vanessa Meschino (“Plaintiffs”), on behalf of themselves
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`and all others similarly situated, for this Unopposed Motion for Preliminary Approval of Class
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`Action Settlement and for Certification of Claims Pursuant to Fed. R. Civ. Pro. 23 for Settlement
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`of their claims against Smithfield Packaged Meats Corp., Smithfield Fresh Meats Corp., and
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`Kansas City Sausage Company, LLC (collectively, “Smithfield”) state as follows:
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`I. INTRODUCTION
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`Smithfield, one of the nations’ largest pork producers, wanted to increase its employees’
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`compensation during the Covid-19 Pandemic. To do this, Smithfield paid its employees a $500
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`payment in May 2020 (a “Responsibility Bonus”). It also paid its workforce extra hourly
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`compensation for the first 40 hours they worked per week for several months thereafter (referred
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`to as “Responsibility Pay”).
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`1
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`Plaintiffs’ lawsuit alleges that the Responsibility Pay and Responsibility Bonus should
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`have been factored into its employees’ overtime rates. Smithfield disagrees. Rather than fighting
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`over these issues for many years during prolonged litigation, the Parties reached a resolution during
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`a settlement conference that was held with Magistrate Judge Sunil R. Harjani on February 2, 2021.
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`By this Motion, Plaintiffs seek preliminary approval of a $7.75 million settlement for over
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`30,000 Smithfield workers who were allegedly underpaid for their overtime when they worked
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`during the COVID-19 Pandemic. This amount represents more than a full recovery (approximately
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`102%) of the base wages that the Fair Labor Standards Act (FLSA) putative class would have
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`earned had they been properly paid according to the Plaintiffs’ allegations. Those who worked in
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`Illinois will also receive an allocation representing 100% of their alleged base damages because of
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`additional damages available under the Illinois Minimum Wage Law (“IMWL”), so long as they
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`do not exclude themselves from the IMWL Class.
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`For the reasons below, Plaintiffs request this Court enter an order, in the form attached
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`hereto as Exhibit 1, that (1) grants preliminary approval of the Proposed Class Action Settlement
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`(attached hereto as Exhibit 2) so that notice can be sent out to see if there are objections; (2)
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`certifies the Class for settlement purposes only; (3) approves the proposed Notice; and (4) sets a
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`hearing date for Final Approval of Settlement. In support of this motion, Plaintiffs state as follows:
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`II. OVERVIEW OF CLAIMS
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`Plaintiffs allege Smithfield did not properly calculate its employees’ regular rate of pay for
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`overtime purposes. Specifically, Plaintiffs claim Defendants failed to include the Responsibility
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`Bonus and Responsibility Pay when computing employees’ overtime rates of pay, resulting in
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`2
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`employees being paid an overtime rate that was too low and depriving them of earned wages in
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`violation of the FLSA and the IMWL.
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`Smithfield denied Plaintiffs’ allegations and, to the contrary, contends that the additional
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`compensation were gifts and/or discretionary bonuses to recognize employees for working and
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`overcoming difficult circumstances--and therefore did not qualify as compensation that factored
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`into the overtime rate. Smithfield pointed out that it paid its Responsibility Bonus to thousands
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`of workers who performed no work at all and therefore it was more akin to a discretionary payment
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`or a gift. It also argued that, after examining Smithfield’s Responsibility Bonus in one of its plants,
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`a United States Department of Labor investigator opined that the bonus did not need to be included
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`in the overtime rate.1
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`While Plaintiffs were confident in their claims, there was some uncertainty because an
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`adverse ruling on these or other issues could result in Plaintiffs receiving no damages whatsoever.
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`See 29 U.S.C. § 207(e)(1) and 29 U.S.C. § 207(e)(3). And, with a DOL investigator’s opinion
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`supporting their position, along with the unchartered waters of operating in an unprecedented
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`Pandemic, Smithfield would likely argue that it acted in good faith pursuant to 29 U.S.C. § 259.
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`What’s more, Smithfield also would likely argue against certification because this case
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`involved dozens of different plants, different Smithfield entities, different pay structures, and both
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`union and non-union employees.
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`1 The USDOL investigator found: “The firm paid a temporary bonus that was considered to be discretionary. . . . the
`bonus was not measured by or dependent upon hours worked and was provided during the challenging and stressful
`situation created by the pandemic. In addition, it was noted in the payroll records that employees received the bonus
`even when they reported no hours worked in a pay period.” The redacted USDOL records are attached as Exhibit 3.
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`3
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`III. SUMMARY OF SETTLEMENT TERMS
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`A copy of the Parties’ Settlement Agreement and Release (the “Settlement Agreement”) is
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`attached as Exhibit 2. For purposes of preliminary approval, the following paragraphs summarize
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`the Settlement Agreement’s key terms:
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`Putative Class Counsel reviewed Smithfield’s payroll records and computed individual
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`damage computations for each of the 30,000+ individuals impacted by the settlement. Defendants
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`have agreed to pay a maximum of $7,750,000 into a settlement fund (referred to as the Gross
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`Settlement Fund in the Parties’ Settlement Agreement). The Settlement Fund’s allocations are
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`compromised as follows:
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`1)
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`FLSA And Illinois Rule 23 Class Members Are Allocated Over 100% of
`Alleged Unpaid Overtime Wages.
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`Alleged overtime damages2 were calculated from Smithfield’s payroll data from April 1,
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`2020 through October 31, 2020 (i.e. during the period the Responsibility Bonus and Pay was
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`earned). As explained above, Plaintiffs allege that Smithfield miscalculated the overtime owed to
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`the named Plaintiffs and each additional Class Member by failing to capture all compensation
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`when calculating the regular rate of pay for overtime purposes during a portion of the COVID-19
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`Pandemic.
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`Class Counsel computed overtime damages, which includes a minimum gross floor of
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`$38.70 for each FLSA and Illinois Rule 23 Class Member.3 FLSA and Illinois Rule 23 Class
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`Members will receive gross settlement awards above their computed overtime damages because
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`2 For an explanation as to the computation of alleged overtime damages see Affidavit of John Kunze attached as
`Exhibit 4.
`3 In other words, if a FLSA or IMWL Class Member’s alleged damages were between $.01 and $38.70, that person
`will receive a gross payment of $38.70.
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`4
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`the combined overtime damages of the FLSA and Illinois Rule 23 Class amounts to $7,600,920.56
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`and Gross Settlement Fund is $7,750,000.4 As explained further down below, the Illinois Rule 23
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`Class can receive twice their overtime damages because they can recover under the Rule 23 Illinois
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`Class and also opt into the FLSA Collective.
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`The allocations are fair among the class members: they are based on (a) the amount of
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`Responsibility Bonus/Responsibility Pay received and (b) the amount of overtime worked. In
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`other words, the more the person worked, and the more compensation they received, the higher
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`the payment--which is consistent with how Plaintiffs allege they should have been paid. Unlike
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`the Rule 23 Illinois class described below, because the FLSA requires members to opt-in to a case,
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`Class Members must opt into this case by submitting a claim to be bound by the settlement.
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`FLSA Class Members appear on Exhibit 1 of the Settlement Agreement along with an
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`estimate of each Member’s net payment, as described in the Settlement Agreement.5
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`2)
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`Illinois Employees Will Also Receive Settlement Awards Under the Rule 23
`Class, in Addition to FLSA Awards.
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`The Parties agreed to create a Rule 23 Class to settle the claims of approximately 2,412
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`Illinois-based Smithfield employees. The amount allocated to these individuals is approximately
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`$589,252.96under the Illinois Rule 23 class and they will automatically receive payment so long
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`as they do not opt out of the Illinois Rule 23 class. As described above, this amount represents
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`4 This results in FLSA and Illinois Rule 23 Class Members, on a whole, receiving gross awards of approximately
`102% of their alleged overtime damages. ($7,750,000/$7,600,920.56 = 101.96%) before accounting for Attorney
`Fees and Costs, Service Awards, Administrator Fees, the Reserve Fund, and taxes.
`5 Exhibit 1 and 2 to the Settlement Agreements reflect estimated net settlement payments to the FLSA and IMWL
`class, respectively, for purposes of the Settlement Agreement and Notice. This is based on an estimated net recovery
`of 64.58% for each FLSA and IMWL Class Member. This percentage represents the estimated recovery after
`accounting for Attorney Fees and Costs, Service Awards, Administrator Fees, the Reserve Fund, and estimating
`$100,000 in FICA taxes on 60% FLSA opt-in rate. The actual net payments will be calculated by the Settlement
`Administrator.
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`5
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`more than their claimed overtime base wages, and, the minimum any IMWL Class Member will
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`receive is the gross amount of approximately $38.70.
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`Illinois workers are also eligible to opt into the FLSA Settlement because they have claims
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`under both federal and state law (the FLSA and the IMWL). Thus, an Illinois Class Member who
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`opts into the FLSA settlement will receive both their FLSA Award and Rule 23 Illinois Award.
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`The Illinois workers are allocated this share because the IMWL allows for treble damages plus
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`interest and, therefore, their claims were more valuable. 820 ILCS 105/12(a).
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`If Illinois-based workers chose not to opt into the FLSA settlement, Illinois employees
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`retain their FLSA claims even if they settle their IMWL claims. See Ex. 2, ¶40 (“Illinois Class
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`Members who do not execute and return Claim Forms release all such claims, except claims under
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`the FLSA …”). The Illinois Class Members are listed on Exhibit 2 to the Settlement Agreement,
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`along with estimated net awards, as described in the Settlement Agreement.
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`By way of example, IMWL Class Member 100307’s alleged unpaid overtime is $276.69,
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`this represents her Illinois award. Her FLSA award is also $276.69. This employee, like all Illinois
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`Rule 23 Class Members, is a potential member of the FLSA Class, thus, if this employee files an
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`FLSA claim and does not exclude herself from the Illinois Class she will receive both the Illinois
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`and the FLSA award: a combined gross of $553.38 before accounting for attorney fees and costs,
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`administrator fees, service awards and taxes However, if she does not file an FLSA claim and
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`does not exclude herself from the IWML Class, she will only receive the Illinois award of $276.69
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`(before attorney fees and costs, etc.) but will not have released any of her FLSA claims. The gross
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`average Illinois Class Members’ award is $244.30, of course, they will receive an additional equal
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`amount if they file an FLSA claim form.
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`3)
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`The Release of Liability
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`6
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`Plaintiffs negotiated a narrow release tied to the claims at issue in this case. FLSA Class
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`Members are not providing a general release. Instead, they are only providing a release of their
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`wage claims. In addition, the release is limited to the approximately 6-month period when the
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`Responsibility Bonus and Responsibility Pay was earned. If FLSA Class Members do not choose
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`to opt into this case, they retain all of their legal rights, are not bound by the Settlement Agreement,
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`and are free to pursue their own claims. See Ex. 2. ¶39.
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`4)
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`Settlement Payment Schedule, Payout, and Allocation:
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`To effectuate this Settlement, Smithfield has agreed to make a payment into a Qualified
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`Settlement Fund (“QSF”) as detailed in paragraph 59 and 61 of Exhibit 2. After the Settlement’s
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`Effective Date, the Defendants shall pay the amounts attributable to the FLSA Class Members
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`(i.e., the payments attributed to those who opt into the FLSA settlement) and the Illinois Class
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`Members along with other approved expenses such as attorneys’ fees and costs, service awards,
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`etc. The Settlement Administrator will be directed to distribute the Settlement Awards to FLSA
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`Class Members and IMWL Class Members.
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`For tax purposes, 50% of the FLSA payment to each Class Member shall be treated as back
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`wages, subject to employee payroll taxes and withholdings, and 50% will be treated as liquidated
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`damages, not subject to payroll taxes and withholdings. As the FLSA is an opt-in statute, FLSA
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`Settlement Members must join into the case to receive their allocation but if they do not do so,
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`they are not releasing their claims. As the IMWL claims are being settled under Rule 23, Illinois
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`7
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`workers who do not opt-out of the IMWL Class are automatically mailed their allocation for
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`damages under the IWML.6 See Ex. 2, ¶60.
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`Some Class Members only worked a very short period of time, or worked little overtime,
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`and they have a small damage amount allocated to them. To maximize cash checking and
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`participation in the lawsuit, for those with damages between $0.01 and $ 38.70, a gross $38.70
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`floor is created. In other words, the minimum gross award any FLSA or Illinois Class Member
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`will receive is $38.70 before reductions for fees and costs.7 See Ex. 2, ¶38(f)(3)(c)-(4)(c).
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`5)
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`Reserve Fund:
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`Approximately $20,000 of the Gross Settlement Fund will
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`be set as a Reserve Fund to cover any errors, omissions, or resolve disputed claims. Any unused
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`portion of the Reserve Fund will be donated to Feeding America’s Covid-19 Response Fund.
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`Feeding America is the nation’s largest domestic hunger-relief organization and has a network of
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`200 food banks.8
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`6 Per the Settlement Agreement, at least 60% of the Net Settlement Fund will be paid to FLSA and
`IMWL members. As such, the amount per FLSA Class Member could increase. For example, if less than
`60% of the Net Settlement Fund remains after FLSA claims and IMWL payments are accounted for, then
`the difference between the amount awarded and 60% of the Net Settlement Fund will be allocated
`proportionately (based on their original FLSA award) across the FLSA members who opted into the case.
`For example, if only 40% of the Net Settlement Fund is allocated for, then 20% of the Net Settlement Fund
`would be re-allocated proportionately across the FLSA members who opted into the case. This would result
`in FLSA members receiving more than 103% of their available damages. See Ex. 2, ¶38(g)(3)(f).
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`7 After this floor, remaining funds in the QSF after payments to the FLSA and Illinois Class
`members, attorney fees and costs, service awards, settlement administrator fees and costs and any donated
`portion of the reserve fund, will be returned to, or not paid out, by Defendants. See Ex. 2, ¶38(g)(3)(f).
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` 8
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` Establishes COVID-19 Response Fund | Feeding America
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`8
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`6)
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`Claims Administrator Fees and Costs: The parties have agreed to use Simpluris
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`as the Settlement Claims Administrator. The Administrator’s anticipated expenses are
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`approximately $120,800.00.
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`7)
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`Attorney Fees:
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`At the final approval hearing, Class Counsel will request
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`one-third of the Settlement Fund as an award of attorney’s fees plus reimbursement of case-related
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`costs and expenses as allowed by the Settlement Agreement. See Ex. 2, ¶38(e)
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`8)
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`Service Award:
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`At the final approval hearing, Plaintiffs Canas and Meschino
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`will each seek $7,500 as Service Awards for the services they rendered to the Class Members. See
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`Ex. 2, ¶38(d)
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`9)
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`Notice Program: Notice to the Class Members will proceed by mailing
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`through first class mail (and email to the extent that Smithfield has this information readily
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`available) to each Class Member. Class Counsel anticipates that the vast majority of addresses of
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`the Class Members are likely current because: (a) the events that led to the lawsuit only happened
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`between 6 months and a year ago, (b) as an employer, Smithfield collects addresses for tax
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`reporting, and (c) many of the Class Members still work at Smithfield. The Settlement
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`Administrator will also maintain an Internet site that will allow the Class Member to review
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`important case documents (such as the Settlement Agreement) online.
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`Each of the 30,000+ notices will be modified to tell the specific Class Member to whom it
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`is sent an estimate as to how much that person is anticipated to receive after costs, attorney fees,
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`and other allowed expenses are paid. The Parties’ proposed notices to the FLSA Settlement Class,
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`IMWL Settlement Class, and Claim Form are attached as Exhibit 5. As set forth therein, it will
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`disclose the amount that will be requested in attorney fees and other case-related costs and provide
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`9
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`the Class Members with instructions on how to object, opt-out, opt-in, and how to find useful case-
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`related information on the Internet.
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`As indicated above, as the FLSA is an opt-in statute, FLSA Collective Members can join
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`this case by filling out a 1 page form. To make it as easy as possible, FLSA Collective Members
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`can opt-in on the Internet site maintained by the Claims Administrator. Or, if they prefer, they can
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`send their form to the Claims Administrator through any of three different methods: mail, fax, or
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`email.
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`IV. THE COURT SHOULD GRANT PRELIMINARY APPROVAL
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`A.
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`Class Action Settlement Approval Process
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`Approval of class action settlements is typically a three-step process:
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`(1) preliminary approval of the settlement at an informal hearing;
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`(2) dissemination of mailed and/or published notice of the settlement to all affected class
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`members; and
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`(3) a “formal fairness hearing” or final settlement approval hearing, at which class
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`members may be heard regarding the settlement, and at which evidence and argument concerning
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`the fairness, adequacy and reasonableness of the settlement may be presented. Manual for
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`Complex Lit., at § 21.632–34.
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`This procedure, used by courts in this Circuit and endorsed by the leading class action
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`treatise, safeguards the due process rights of absent class members and enables the district court
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`to fulfill its role as the guardian of class interests. See 2 Herbert B. Newberg & Alba Conte,
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`Newberg on Class Actions, at § 11.22, et seq. With this Motion, Plaintiffs request that the Court
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`take the first step in the settlement approval process by granting preliminary approval of the
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`Settlement and to see if there are any objections.
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`10
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`The purpose of preliminary evaluation of a proposed class action settlement is to determine
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`whether the settlement is within the “range of reasonableness,” and thus whether notice to the class
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`of the settlement’s terms and the scheduling of a formal fairness hearing is worthwhile. Id., § 11.25
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`at 11-36, 11-37. The decision to preliminarily approve a proposed settlement is in the Court’s
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`sound discretion. See Moore v. Nat’l Ass’n of Sec. Dealers, Inc., 762 F.2d 1093, 1106 (D.C. Cir.
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`1985) (“Rule 23 places the determination [to approve or reject a proposed settlement] within the
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`sound discretion of the trial judge who can be sensitive to the dynamics of the situation”). If so,
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`the court should grant preliminary approval of the settlement, authorize the Parties to give notice
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`of the proposed Settlement to Class Members, and schedule a formal fairness hearing. Id.;
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`Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982). At the formal fairness hearing, Class
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`Members may be heard and further evidence and argument concerning the fairness, adequacy, and
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`reasonableness of the Settlement may be presented.
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`As to the FLSA portion of the Settlement, because collective actions under Section 16(b)
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`of the FLSA, 29 U.S.C. § 216(b), require workers to affirmatively opt-in to the litigation, unlike
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`Rule 23 class actions, they do not implicate due process concerns. Espenscheid v. DirectSat USA,
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`LLC, 705 F.3d 770, 771 (7th Cir. 2013); see also Genesis Healthcare Corp. v. Symczyk, 133 S. Ct.
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`1523, 1529 (2013). Under the FLSA, “parties may elect to opt in but a failure to do so does not
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`prevent them from bringing their own suits at a later date.” McKenna v. Champion Int’l Corp., 747
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`F.2d 1211, 1213 (8th Cir. 1984), abrogated on other grounds by Hoffman-La Roche Inc. v.
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`Sperling, 493 U.S. 165 (1989). Thus, courts do not apply the exacting standards for approval of a
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`class action settlement under Rule 23 to FLSA settlements. See, e.g., Beckman v. KeyBank, N.A.,
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`293 F.R.D. 467, 476 (S.D.N.Y. 2013).
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`B. The Criteria for Preliminary Settlement Approval Are Satisfied
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`11
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`Ultimately, “the district court must determine that a class action settlement is fair, adequate,
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`and reasonable, and not a product of collusion.” Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277,
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`279 (7th Cir. 2002) (internal citation omitted). At the preliminary approval stage, however, a
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`court’s task is to determine whether class settlement is within the range of possible approval.
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`American Int’l Group, Inc. v. ACE INA Holdings, Inc., Nos. 07 C 2898, 09 C 2026, 2011 WL
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`3290302, at *6 (N.D. Ill. July 26, 2011). Utilizing a five-factor test, a court must consider: (1) the
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`strength of plaintiffs’ case compared with the terms of the proposed settlement; (2) the likely
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`complexity, length and expense of continued litigation; (3) the amount of opposition to settlement;
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`(4) the opinion of competent counsel; and (5) the stage of the proceedings and the amount of
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`discovery completed. Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir.
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`2006); Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996). Further, a court must not focus on an
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`individual component of the compromise, but must instead view the settlement in its entirety. Isby,
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`75 F.3d at 1199. Finally, a strong presumption of fairness exists when the settlement is the result
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`of extensive arm’s-length negotiations. Hispanics United of DuPage County v. Village of Addison,
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`Ill., 988 F. Supp. 1130, 1149 n.6 (N.D. Ill. 1997); Great Neck Capital Appreciation Inv. P’Ship,
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`L.P. v. Pricewaterhouse Coopers, 212 F.R.D. 400, 410 (E.D. Wis. 2002). The Settlement
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`Agreement here meets these criteria and clearly falls “within the range of possible approval.” Cook,
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`1997 U.S. Dist. LEXIS 1090, at *24-25 (citation omitted).
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`1.
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`Strength of Plaintiff’s Case as Compared to the Amount of the Settlement and
`Allocation of the Settlement Payment
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`Here, the FLSA Class Members are recovering the gross amount over their allegedly
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`unpaid overtime before reductions for fees and other costs. Additionally, IMWL Class Members
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`are receiving an additional gross amount of 100% of alleged unpaid overtime. Moreover, both
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`12
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`FLSA and IMWL Class Members will receive a minimum gross of $38.70 and FLSA Class
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`Members may receive even more if less than 60% of the Net Settlement Fund is claimed. A key
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`consideration in evaluating a proposed settlement is the strength of the plaintiffs’ case as compared
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`to the amount of the defendant’s offer. See Isby, 75 F.3d at 1199. However, “district courts have
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`been admonished ‘to refrain from resolving the merits of the controversy or making a precise
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`determination of the parties’ respective legal rights.’” EEOC v. Hiram Walker & Sons, Inc., 768
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`F.2d 884, 889 (7th Cir. 1985). Accordingly, in deciding whether to preliminarily approve a
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`settlement, a district court must focus on the general principles of fairness and reasonableness, but
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`not on the substantive law governing the plaintiffs’ claims. Id. A settlement is fair “if it gives
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`[plaintiffs] the expected value of their claim if it went to trial, net of the costs of trial.” Mars Steel
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`Corp. v. Continental Ill. Nat’l Bank & Trust, 834 F.2d 677, 682 (7th Cir. 1987) (finding adequate
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`a settlement of ten percent of the total sought due to risks and costs of trial); Hiram Walker, 768
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`F.2d at 891 (settlement approved because “there [was] no showing that the amounts received by
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`the beneficiaries were totally inadequate”). Plaintiffs believe that this case is an excellent result
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`for Class Members. Notably the amount FLSA Settlement Members will increase if less than 60%
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`of the Net Settlement Fund remains after FLSA claims. See Ex. 2, ¶38(g)(3)(f).
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`Additionally, Plaintiffs had not yet obtained class certification. Defendants have significant
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`defenses in this case that the compensation did not need to be included in the regular rate because
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`it was a gift or discretionary bonus, that liquidated damages should not be awarded because the
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`Federal Department of Labor had investigated the Responsibility Bonus at one facility and gave
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`their blessing, and that class certification is improper based on differences among class members
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`By settling these claims, the Plaintiffs are assured of a recovery. And, it is a considerable amount
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`that will reach class members during this troubling time, when they need this money the most.
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`13
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`Case: 1:20-cv-04937 Document #: 37 Filed: 03/12/21 Page 14 of 24 PageID #:159
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`Although the amount of attorney fees and class representative service awards are often
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`decided at the final approval hearing, Courts in the Northern District of Illinois routinely approve
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`one-third of the settlement fund as attorneys’ fees in FLSA collective actions settlements. See,
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`e.g., Castillo v. Noodles & Co., 2016 WL 7451626 (N.D. Ill. Dec. 23, 2016), at *3-4 (awarding
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`one-third of a $3,000,000 settlement fund in FLSA overtime action); Furman v. At Home Stores
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`LLC, No. 2017 WL 1730995, at 3-4 (N.D. Ill. May 1, 2017) (awarding one-third of $990,000
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`settlement fund in FLSA overtime action); Briggs v. PNC Financial Services Group, Inc., 2016
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`WL 7018566, at *1 (N.D. Ill. Nov. 29, 2016) (awarding one-third of $2,000,000 settlement fund
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`in FLSA overtime action); Day v. NuCO2 Mgmt., LLC, 1:18-CV-02088, 2018 WL 2473472, at
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`*1 (N.D. Ill. May 18, 2018) (awarding one-third of $900,000 settlement fund in case that was
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`settled before filing suit); Koszyk, 2016 WL 5109196, at *3-4 (awarding one-third of $2,825,000
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`settlement fund in FLSA overtime case). Consistent with the Seventh Circuit’s admonition to
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`award attorneys’ fees that approximate the market rate, In re Synthroid Mktg. Litig., 264 F.3d
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`712, 718 (7th Cir. 2001), these courts explain that one-third of the settlement fund is consistent
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`with market rates in the Northern District of Illinois charged by experienced plaintiffs’ counsel in
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`contingent-fee wage and hour class and collective actions.
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`Courts in the Northern District of Illinois routinely award even larger service payments
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`than the $7,500 requested here to named plaintiffs who perform similar actions to recover
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`settlement funds on behalf of similarly situated employees in collective actions. Furman, 2017 WL
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`1730995, at *3 (approving $10,000 service award to named plaintiff in overtime collective action);
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`Briggs, 2016 WL 7018566, at *2 (approving $12,500 service awards to named plaintiff in overtime
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`collective action); Castillo, 2016 WL 7451626, at *2 (approving $10,000 service awards to named
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`plaintiff in overtime collective action); Koszyk, 2016 WL 5109196, at *2 (same).
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`14
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`Case: 1:20-cv-04937 Document #: 37 Filed: 03/12/21 Page 15 of 24 PageID #:160
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`2.
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`Complexity, Length, and Expense of Further Litigation
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`A second factor to be considered by the Court is the complexity, length, and expense of
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`litigation that will be spared by the proposed settlement. In re Mexico Money Transfer Litigation,
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`164 F. Supp. 2d 1002, 1019 (N.D. Ill. 2000). Absent settlement, Defendants would continue to
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`vigorously defend the case. As discovery is in the early stages, significant attorneys’ fees and costs
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`would be expended by all Parties in investigating the claims further. The scale of these claims,
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`potentially across 21 states and numerous entities and facilities around the nation would only
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`severely complicate and lengthen the litigation. Further, litigation would certainly result in
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`disputed certification motions, dispositive motions, and the possibility of appeals. Additional
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`litigation would increase expenses and would not reduce the risks of litigation to the Settlement
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`Class. See Isby, 75 F.3d at 1199; see also In re Mexico Money Transfer Litig., 164 F. Supp. 2d at
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`1019; see also Great Neck Capital, 212 F.R.D. at 409-10. Accordingly, the remaining burden,
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`expenses, and risks for the Class Members would be substantial as continued litigation would
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`require resolution of complex issues at considerable expense. “Courts encourage early settlement
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`of class actions, when warranted, because early settlement allows class members to recover
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`without unnecessary delay and allows the judicial system to focus resources elsewhere.” Beckman
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`v. KeyBank, N.A., 293 F.R.D. 467, 474–75 (S.D.N.Y. 2013).
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`3.
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`At This Preliminary Stage, There is No Opposition to the Settlement
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`The Plaintiffs support the settlement, as do their Counsel and Defendants. At this
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`preliminary stage, Plaintiffs’ Counsel is unaware of any opposition to the settlement.
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`4.
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`Opinion of Counsel
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`Plaintiffs’ Counsel is experienced in class action litigation and had a substantial amount of
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`information to evaluate, negotiate and make well-informed judgments about the adequacy of the
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`15
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`Case: 1:20-cv-04937 Document #: 37 Filed: 03/12/21 Page 16 of 24 PageID #:161
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`
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`Settlement. In Plaintiffs’ Counsel’s opinion, the Settlement is fair, reasonable and adequate. See
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`Declaration of David Fish attached as Exhibit 6. It is appropriate for the Court to place significant
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`weight on the endorsement of this Settlement by Class Counsel. Counsel exercised their experience
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`based on an intimate knowledge of the facts of the case and the legal issues facing the Class,
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`including conducting an independent analysis of the strength and weakness of the claims, the value
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`of the claims and the time costs, as well as the expense of trials and appeals.
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`When experienced counsel supports the settlement, as they do here, their opinions are
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`entitled to considerable weight. See In re Mexico Money Transfer Litigation, 164 F. Supp. 2d at
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`1020; Reed v. General Motors Corp., 703 F.2d 170, 175 (5th Cir. 1983). “[J]udges should not
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`substitute their own judgment as to optimal settlement terms for the judgment of the litigants and
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`their counsel.” Petrovic v. Amo