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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-cv-81066-SMITH

JAMES VELASQUEZ, 

Plaintiff, 

vs. 

RKC LAND DEVELOPMENT, INC.

a Florida For-Profit Corporation, and 

ROBERT K. CARTER, JR., individually,

 Defendants. 

___________________________________/

JOINT MOTION FOR APPROVAL OF PARTIES’ SETTLEMENT AGREEMENT 

AND DISMISSAL WITH PREJUDICE

Plaintiff JAMES VELASQUEZ (“Plaintiff”) and Defendants RKC LAND 

DEVELOPMENT, INC. and ROBERT K. CARTER, JR (“Defendants”)(collectively the 

“Parties”), by and through their respective undersigned counsel, hereby file this Joint Motion for 

Approval of Parties’ Settlement Agreement and Dismissal with Prejudice in this Fair Labor 

Standards Act (“FLSA”) case, with the Court reserving jurisdiction to enforce the terms of the 

settlement agreement, and in support jointly state the following:

1. On July 7, 2020, Plaintiff filed his Complaint against Defendants seeking overtime 

wage damages pursuant to the FLSA. [DE 1]. After service of the Complaint, Defendants’ counsel 

contacted Plaintiff’s counsel to discuss resolution. Thereafter, the Parties exchanged documents and 

their respective arguments. These discussions ultimately resulted in a resolution. 

2. Defendants deny Plaintiff’s allegations of unpaid overtime. Defendants contend that 

they fully complied with the FLSA, that Plaintiff was exempt under Section 213(b)(28) of the FLSA, 

and that Plaintiff’s damages would be limited by 29 CFR § 790.5, the effect of Portal-to-Portal Act 

on the determination of hours worked.

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3. To avoid the costs and uncertainty of litigation, however, the Parties have negotiated 

a settlement of this matter.

4. The settlement between Plaintiff and Defendants provides for final resolution of 

Plaintiff’s FLSA claims, consideration for a general release, and for attorneys’ fees and costs which 

were negotiated separately from Plaintiff’s claims.

5. A copy of the Parties’ settlement agreement will be submitted for in camera review. 

A proposed Order granting this Joint Motion will be filed simultaneously.

MEMORANDUM OF LAW

I. LEGAL FRAMEWORK

There are two ways in which claims under the FLSA can be settled and released by 

employees. First, 216(c) of the FLSA allows employees to settle and waive their claims under the 

FLSA if the payment of unpaid wages by the employer to the employee is supervised by the 

Secretary of Labor. See 29 U.S.C. 216(c); Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 

1353 (11th Cir. 1982). Second, in the context of a private lawsuit brought by an employee against 

an employer under section 216(b) of the FLSA, an employee may settle and release FLSA claims 

against an employer if the parties present the court with a proposed settlement and the court enters 

a stipulated judgment approving the fairness of the settlement. Id.; see also Sculte, Inc. v. Gandi, 

328 U.S. 108, 66 S. Ct. 925, 928 n. 8, 90 L. Ed. 1114 (1946); Jarrad v. Southeastern Shipbuilding 

Corp., 163 F.2d 960, 961 (5th Cir. 1947). The Eleventh Circuit has stated that the circumstances 

justifying court approval of an FLSA settlement in a litigation context are as follows:

Settlements may be permissible in the context of a suit brought by employees under 

the FLSA for back wages because initiation of the action by the employees provides 

some assurance of an adversarial context. The employees are likely to be represented 

by an attorney who can protect their rights under the statute. Thus, when the parties 

submit a settlement to the court for approval, the settlement is more likely to reflect a 

reasonable compromise of disputed issues than a mere waiver of statutory rights 

brought by an employer’s overreaching. If a settlement in an employee FLSA suit 

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does reflect a reasonable compromise over issues, such as FLSA coverage or 

computation of back wages that are actually in dispute, we allow the district court to 

approve the settlement in order to promote the policy of encouraging settlement of 

litigation.

Lynn’s Food Stores, 679 F.2d at 1354.

The Court should be mindful of the strong presumption in favor of finding a settlement fair. 

Hamilton, 2007 U.S. Dist. LEXIS at *2-3. Dail v. George A. Arab, Inc., 391 F. Supp. 2d 1142, 1146 

(M.D. Fla. 2005); Camp v. Progressive Corp., 2004 U.S. Dist. LEXIS 19172 (E.D. La. Sept. 23, 

2004)(there is a “strong presumption in favor of finding a settlement fair)(citing Cotton v. Hinton,

559 F.2d 1326, 1331 (5th Cir. 1977)); See also Schottborgh v. Motor Car Concepts, II, Inc., 2009 

WL 4730615, at *2 (M.D. Fla. Dec. 9, 2009) (“The Court should be mindful of the strong 

presumption in favor of finding a settlement fair.”)

II. THE OBSTACLES FACED BY PLAINTIFF 

Plaintiff’s recovery in this matter is very significant in light of the various legal barriers he 

would have to overcome to attain any financial recovery whatsoever. 

A. First Obstacle: The “Timber” Exemption

Defendants first argued that Plaintiff may be barred any recovery based on the exemption 

outlined in 29 U.S.C. 213(b)(28), which states: “any employee employed in planting or tending 

trees, cruising, surveying, or felling timber, or in preparing or transporting logs or other forestry 

products to the mill, processing plant, railroad, or other transportation terminal, if the number of 

employees employed by his employer in such forestry or lumbering operations does not exceed 

eight.” If Defendants were successful in proving this exemption, Plaintiff’s claims would be barred. 

The exemption inquiry hours would have come down to a question of credibility and extensive 

discovery.

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B. Second Obstacle: Defendants’ Maintenance of Work Records

In this matter, Defendants contend they maintained proper time records of Plaintiff’s work 

hours. Again, the inquiry into hours worked (and paid) would require comparisons of records, over 

the course of years, between the Parties. This vast document production and compounded would be 

amplified by party and non-party depositions. 

C. Third Obstacle: The Limiting Nature Of Violations That Are Not Deemed Willful

Assuming Plaintiff was able to evade any limiting defense by the Defendants’ time records, 

Plaintiff would be met with another significant obstacle. The ordinary statute of limitations under 

the FLSA is only two (2) years. The only way Plaintiff could augment the statute of limitations 

period is if he were able to prove that Defendants’ FLSA violations were “willful.” Proving 

willfulness in the present case would be difficult in light of Defendants’ good-faith belief that all 

hours were captured and paid, given the time records. 

As a practical matter, the absence of a third year in the statute of limitations period would 

have a severely limiting effect in this case. If Plaintiff’s potential recovery was limited to the 

standard two-year statute of limitations, a significant amount of Plaintiff’s alleged damages would 

be struck. Furthermore, a lack of willfulness would further preclude Plaintiff’s ability to recover 

liquidated damages. This would, in turn, further limit the scope of Plaintiff’s recovery by another 

fifty (50%). 

D. Fourth Obstacle: Postliminary and Preliminary Work Hours

The final argument by Defendants is the limiting nature of the Portal-to-Portal Act where 

Plaintiff’s damages may be reduced if it is determined the work hours sought involve noncompensable postliminary and preliminary activities. This, plus the other obstacles cited supra, 

were motivators in Plaintiff’s decision to resolve this matter. 

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III. PLAINTIFF’S RECOVERY

The foregoing legal and factual analysis explains why Plaintiff was eager to accept the 

proposal that was ultimately memorialized through the Settlement Agreement. Plaintiff ran a 

substantial risk of losing this case altogether. Had he lost, Plaintiff would have faced an exposure 

of a cost judgment being entered against him. This was a very beneficial outcome under the 

circumstances. See Steinhauser v. Elec. Energy Sys., Inc., No. 6:08-cv-1518, 2009 WL 1458031 

(M.D. Fla. May 26, 2009) (approving settlement agreement where “[i]t appeared that further 

litigation of this case might have resulted in no recovery to Plaintiff at all”). 

Importantly, Plaintiff’s FLSA claims, when Defendants’ time and pay records are taken into 

account, would have resulted in Plaintiff’s damages being far less than his original belief. Indeed, 

given those documents, the amount at issue for Plaintiff would have been less than what he

ultimately resolved his wage & hour claims for. In other words, Plaintiff’s recovery would have 

been far worse had he elected to proceed to a jury trial rather than resolve during the course of 

mediation. The Parties submit the settlement is reasonable. A copy of the Parties’ fully executed 

Settlement Agreement will be submitted to this Honorable Court for in camera review.

IV. PLAINTIFF’S ATTORNEYS’ FEES AND COSTS

In a suit brought by employees under the FLSA, the Court must determine whether the 

settlement “is a fair and reasonable resolution.” See Lynn’s Food., 679 F.2d at 1352-53. at 1354. In 

doing so, the Court considers such factors as “(1) existence of fraud; (2) complexity of the case; (3) 

the point of the proceedings when the settlement occurs; (4) the probability of success on the merits; 

(5) the range of possible recovery; and (6) counsel's opinion.” McHone v. Donald P. Hoekstra 

Plumbing, Inc., No. 10-60322-CIV, 2010 WL 4625999, at *1 (S.D. Fla. Nov. 4, 2010) (citing Dees 

v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1241 (M.D. Fla. 2010)); see also Leverso v. SouthTrust 

Bank of Ala., Nat'l Ass'n., 18 F.3d 1527, 1530 n.6 (11th Cir. 1994). The “FLSA requires judicial 

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review of the reasonableness of counsel's legal fees to assure both that counsel is compensated 

adequately and that no conflict of interest taints the amount the wronged employee recovers under 

a settlement agreement.” Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009). A copy of Plaintiff’s 

counsel’s attorney time and cost records will be submitted to this Honorable Court for in camera

review. 

A. The Issue Of Attorneys’ Fees And Costs Were Separately Negotiated. 

The Parties represent that Plaintiff’s attorneys’ fees and costs were, at all times, negotiated 

separately from the amounts claimed by Plaintiff for his underlying claims and are not a function of 

any percentage of recovery. As the Court explained in Bonetti v. Embarq Management Co., 2009 

U.S. Dist. LEXIS 68075 at *11-12 (M.D. Fla. Aug. 4, 2009), where a “plaintiff’s attorneys’ fee was 

agreed upon separately and without regard to the amount paid to the plaintiff, then unless the 

settlement does not appear reasonable on its face or there is reason to believe that the plaintiff’s 

recovery was adversely affected by the amount of fees paid to his attorney, the Court will approve 

the settlement without separately considering the reasonableness of the fee to be paid to plaintiff's 

counsel.” Bonetti, 2009 U.S. Dist. LEXIS 68075 at *15-16. 

B. The Lawyers Representing Plaintiff. 

Plaintiff was represented by Valerie B., Esq. and Brody Shulman, Esq. The curriculum vitae 

for each attorney will be provided for in camera review.

As the Court will note, Ms. Barnhart is a Partner at Perera Barnhart Aleman, graduated with 

high honors from her law school, has a big firm background, and a history of publications and 

lectures on numerous legal issues. Ms. Barnhart is dedicated to labor and employment issues. Hourly 

clients regularly pay $350.00-$400.00 an hour for Ms. Barnhart’s services.

Mr. Shulman is a partner at Perera Barnhart Aleman, P.A. and has also dedicated his entire 

career to the field of labor and employment law. Mr. Shulman has handled hundreds of labor and 

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employment matters and has served as lead counsel on many reported decisions. Hourly clients 

regularly pay $350 an hour for Mr. Shulman’s services.

A sample of documents showing the payment of the rates above will be sent for in camera 

review. See Mayson v. Pierce, 806 F.2d 1556, 1557 (11th Cir. 1989) (noting that billing rates 

charged to other clients is evidence of the reasonable hourly rate).

Recently, the Honorable Magistrate Judge Alicia O. Valle granted a Joint Motion for 

Settlement Approval in an FLSA matter and approved the hourly rates of $350.00 for Brody M. 

Shulman, Esq. See Bolton v. Rock N Massage, Inc., et. al., case no.: 19-cv-60008-AOV (S.D. Fla. 

May 8, 2019); Giannola v. D&S Management Services, Inc., et. al. case no.: 19-60754-cv-Altman 

(S.D. Fla. July 9, 2019). Further, the Honorable Magistrate Judge Jonathan Goodman approved Ms. 

Barnhart’s hourly rate in the FLSA matter of Martin v. Law Office of Daniel M. Keil, P.A., et. al.,

case no.: 19-cv-22037-MGC.

C. Analysis Of Various Factors

Counsel for the Parties note there is not existence of fraud or collusion in this matter. The 

settlement here is the negotiated result of an adversarial proceeding, which itself is an indication of 

its fairness. 

This matter was not a straightforward FLSA matter, but rather, involved complex legal and 

factual facts along with the factual disputes. As stated supra, the factual and legal issues included 

recordkeeping, exemption, and compensable work hour disputes. Moreover, issues regarding 

operational control and liquidated damages would be heavily litigated if this matter did not resolve. 

As noted above, the range of recovery in this case was threatened by significant obstacles. 

Finally, counsel for both Parties agree this settlement is eminently fair and reasonable given 

the factual and legal disputes discussed in this Motion. 

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WHEREFORE, the parties respectfully request that the Court enter an Order: (1) approving 

the terms of the settlement agreement, (2) dismissing this action with prejudice, and (3) reserving 

jurisdiction to enforce the terms of the parties’ Settlement Agreement.

Respectfully submitted on August 13, 2020

By: /s/ Brody M. Shulman

Valerie Barnhart, Esq. 

Florida Bar No. 88549 

E-mail: valerie@pba-law.com 

Brody M. Shulman, Esq. 

Florida Bar No. 092044 

E-mail: brody@pba-law.com 

PERERA BARNHART ALEMAN

12401 Orange Drive

Suite 123

Davie, FL 33330

Telephone: (786) 485-5232

Attorneys for Plaintiff

By: /s/ Michael A. Pancier

Michael A. Pancier, Esquire

E-mail: mpancier@pancierlaw.com

Florida Bar No. 958484

Law Offices of Michael A. Pancier

9000 Heridan Street, Suite 93

Pembroke Pines, FL 33024

Tel: 954-862-2217

Fax: 954-862-2287

Mobile: 305-778-0445

Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on August 13, 2020, I electronically filed the foregoing document with 

the Clerk of the Court using CM/ECF. I also certify that a true and correct copy of the foregoing 

document was served via transmission of Notices of Electronic Filing generated by CM/ECF or in 

some other authorized manner for those counsel or parties who are not authorized to receive 

electronically Notices of Electronic Filing on all counsel or parties of record on the Service List 

below.

By: _/s/ Brody M. Shulman____________

Brody M. Shulman, Esq. 

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