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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DANIEL KOCH,

JOHNNY RAY WELLS, JR., 

TRENT COLLINS,

BRAD WEIKART,

FRANKLIN LORTIE,

KIRK HERRING,

ZACKERY PEPPLE, 

DANNY PORTER,

TIMOTHY NIBLACK,

TOM SEITZ, SR., and 

ANTHONY FOLLIS,

Plaintiffs,

vs.

JERRY W. BAILEY TRUCKING, INC.,

THE ESTATE OF JERRY W. BAILEY, and 

LINDA L. BAILEY,

Defendants.

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CAUSE NO. 1:14-cv-00072-HAB

JOINT MOTION TO APPROVE SETTLEMENT 

Come now all Parties, by counsel and respectfully request that the Court approve the 

proposed Settlement Agreement of this case. In support of this Motion, the Parties state as 

follows: 

1. Daniel Koch filed the first Complaint in this matter in United States District Court

for the Northern District of Indiana, as a proposed class and collective action on

March 7, 2014, which was assigned Case No. 1:14-cv-00072.

2. Johnny Ray Wells, Jr. was added as a named Plaintiff and filed an Amended

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Complaint on March 17, 2014. 

3. The Amended Complaint in this matter alleges that the Defendants failed to pay 

the Plaintiffs for pre-driving and post-driving inspections, which violated the Fair 

Labor Standards Act and the Indiana Wage Payment statute.

4. After Motion to Certify the class and collective action (Doc. No. 18), the case was 

provisionally certified as a class and collective action. The remaining plaintiffs 

were a proposed member of one or both of the class or collective action.

5. This Court entered an Order decertifying the Class and Collective Actions on May 

16, 2019 (Doc. No. 182). After providing notice, the remaining plaintiffs filed 

their Second Amended Complaint, (Doc. No. 191-1), in which the remaining 

Plaintiffs sought compensation (hereinafter the “Action” or “Lawsuit”) for predriving and post-driving inspections, which allegedly violated the Fair Labor 

Standards Act and the Indiana Wage Payment statute or the Indiana Wage Claim 

statute. The claims included: (a) overtime wages for a third year look back under 

the FLSA, (b) liquidated damages for the third year, under the FLSA, (c) unpaid 

overtime wages for a two-year period under the FLSA, (d) liquidated damages for 

the unpaid overtime wages during the two-year period under the FLSA, (e) unpaid 

regular wages under the Wage Payment and Wage Claim Acts, and (f) statutory 

interest under the Wage Payment and Wage Claim Acts.

6. The name and legal basis of the claims of each plaintiff is as follows:

a. Koch – FLSA and Indiana Wage Claim Act,

b. Wells – FLSA and Indiana Wage Payment Act,

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c. Collins – FLSA and Indiana Wage Payment Act,

d. Weikart – FLSA and Indiana Wage Payment Act,

e. Lortie - FLSA and Indiana Wage Payment Act,

f. Herring - FLSA and Indiana Wage Payment Act,

g. Porter - FLSA and Indiana Wage Payment Act,

h. Seitz - FLSA only,

i. Pepple - FLSA only, and only in the event of a third year look back upon 

a finding of willful and wanton conduct,

j. Niblack - Indiana Wage Payment Act only, and 

k. Follis - Indiana Wage Payment Act only.

7. The parties then filed cross motions for summary judgment on various issues. 

Court granted partial summary judgment to the Plaintiffs’ that the Employer did 

not pay them for all of their time allegedly worked.

8. The Court granted summary judgment to Linda Bailey finding that she was not an 

employer and therefore not liable to some or all of the Plaintiffs;

9. On November 2 and 4, 2020, the remaining parties participated in a settlement 

conference conducted by Magistrate Susan Collins over two days, following 

which the parties agreed to certain payments being paid to the Employee, but 

specifically reserving the issues on the amount of attorney fees and costs to be 

awarded, if any. See Exhibit A, Parties Report of Settlement Conference provided 

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to Magistrate Judge Susan L. Collins1. 

10. Counsel for the parties appeared before Judge Brady for a telephonic conference 

on December 15, 2020 in an attempt to resolve additional procedural concerns 

related to the proposed settlement, primarily concerning the request by Plaintiffs’ 

counsel for attorney fees and costs. Judge Brady issued an order on December 

16, 2020 that the parties shall file a Joint Motion for Approval of the Settlement 

Agreement on December 22, 2020. Following a Motion that deadline was 

extended to December 29, 2020 which deadline following a subsequent telephone

conference on January 14, 2021 was extended until January 22, 2021.

11. Through confidential, arms-length negotiations, the Parties reached an agreement 

to resolve the Lawsuit.

12. The Parties prepared a written Settlement Agreement that memorializes the terms 

of the Parties’ settlement of the claims for unpaid wages that will be executed and 

completed individually for each Plaintiff. See Exhibit B.

13. The Parties have agreed to the payments identified on the attached Exhibit C.

14. Pursuant to the FLSA, claims for back wages and other damages arising under the 

FLSA may be settled or compromised only with the approval of the district court 

or the Secretary of Labor. See Sutherlin v. Phoenix Closures, Inc., 2018 WL 

4620269, at *1 (S.D. Ind. Sept. 26, 2018) (“Unless the Department of Labor is 

supervising the dispute, an FLSA case can’t be settled and simply dismissed; the

 1 Due to the request for confidentiality, Exhibit A and C are being filed under seal pursuant to N.D. Ind. 

L.R. 5-3

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court’s approval is required.”) (citing Walton v. United Consumers Club, Inc., 786 

F.2d 303, 306 (7th Cir. 1986))). 

15. “To determine the fairness of a settlement under the FLSA, the court must consider 

whether the agreement reflects a reasonable compromise of disputed issues rather 

than a mere waiver of statutory rights brought about by an employer’s 

overreaching.” Burkholder v. City of Fort Wayne, 750 F. Supp. 2d 990, 995 (N.D. 

Ind. 2010) (internal alteration and quotation omitted). “Normally, a settlement is 

approved where it is the result of contentious arm’s-length negotiations, which

were undertaken in good faith by counsel and serious questions of law and fact 

exist such that the value of an immediate recovery outweighs the mere possibility 

of further relief after protracted and expensive litigation.” Id. (internal alteration 

and quotation omitted). “Furthermore, courts may enter judgments on a basis that 

does not require full payment of liquidated damages after scrutinizing the 

proposed settlement for fairness.” Id.

16. To approve the settlement, he Court should determine that the compromise is a 

fair and reasonable resolution of a bona fide dispute over FLSA provisions. See 

Beachy v. Reliance Construction, Inc., 2015 WL 6828864, at *2 (N.D. Ind. Nov. 

6, 2015) (approving settlement agreement where the settlement was “fair and 

reasonable, and reflects a reasonable compromise of disputed issues”) (internal 

quotation omitted).

17. The Parties dispute the nature of the claims of the various plaintiffs in the instant 

action. Nonetheless, they have agreed to settle all claims in the Lawsuit, with the 

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exception of the right to Plaintiffs’ counsel to seek an award of fees. 

18. In addition, the parties have agreed during the Settlement Conference that a 

material term of the settlement is a confidentiality provision within the Settlement 

Agreement. See Beachy v. Reliance Construction, Inc., 2015 WL 6828864 (N.D. 

Ind., Nov. 6, 2015) (approving settlement with confidentiality provision when 

confidentiality is a material term to resolution). 

19. The Parties represent that, the parties negotiated the settlement in good faith, in

arms-length negotiations with each party represented by counsel.

20. TheParties agree that the settlement termstheyhave reached in this action represent 

a fair and equitable resolution of this matter. The terms of the attached Settlement 

Agreement are contingent upon approval by the Court. To that end, a copy of the 

Settlement Agreement which outlines the terms of the Parties’ settlement of the 

various claims for wages under the FLSA, if applicable, and the applicable Indiana 

statutes is attached as Exhibit B.

 WHEREFORE, for the foregoing reasons, the Parties respectfully request that the Court 

grant this Joint Motion and approve the Settlement Agreement attached hereto as Exhibit Band for 

all other appropriate relief.

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Respectfully submitted,

/ s / Ronald Weldy

Ronald Weldy

WELDY LAW

8383 Craig Street, Suite 330

Indianapolis, IN 46250

317-842-6600

rweldy@weldylegal.com

/ s / Theodore T. Storer

Theodore T. Storer 17576-02

BEERS MALLERS BACKS &

SALIN LLP 

110 West Berry Street, Suite 1100

Fort Wayne, Indiana 46802

260-426-9706

ttstorer@beersmallers.com

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