UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SCOTT A. FISHER and JESSE J. 

LaFOREST, 

individually and on behalf of others 

similarly situated, 

Plaintiffs, 

Case No. 09CV10802 

v. 

MICHIGAN BELL TELEPHONE 

COMPANY, 

Defendant. 

Hon. Nancy G. Edmunds 

Mag. Judge R. Steven Whalen 

________________________________________________________________________ 

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR APPROVAL OF FLSA 

SETTLEMENT 

 

INTRODUCTION

Through the parties’ motion, and exhibits attached hereto, the above-named Plaintiffs, 

individually and on behalf of the opt-in collective class members (“Plaintiffs”), and Defendant 

Michigan Bell Telephone Company (“Defendant”), seek approval of their settlement in this 

collective action for overtime compensation, brought under the Fair Labor Standards Act of 

1938, 29 U.S.C. § 201, et. seq. (“FLSA”). The parties respectfully submit that the terms of 

settlement are fair, reasonable, and resolve a bona fide dispute between the parties with respect 

to liability and damages. 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 1 of 11
2 

SUMMARY TIMELINE

 A summary timeline of the settlement process is below: 

Event Timing 

Order Granting Joint Motion to File Stipulation 

of Settlement Filed Under Seal 

(Dkt. 133.) 

Joint Motion for Approval of FLSA Settlement 

Filed 

Filed on October 29, 2010 

Period to Obtain Releases 30-day period immediately after Order on Joint 

Motion for Approval of FLSA Settlement is 

entered 

Dismissal of Action Stipulation of Dismissal to be filed by parties 

immediately after close of 30-day Period to 

Obtain Releases; Order to be entered 

 

DISCUSSION

I. HISTORY AND PROCEDURAL STATUS OF THIS CASE

A. The Parties’ Claims and Defenses 

On March 3, 2009, the named Plaintiffs Scott A. Fisher and Jessie J. LaForest (“named 

Plaintiffs”) brought collective claims against Defendant under the FLSA, alleging that Defendant 

failed to pay them and other similarly situated individuals for all of their time worked. (Dkt. 1.) 

The named Plaintiffs specifically alleged that they and other similarly situated individuals were 

required to log into computer applications without compensation prior to the beginning of their 

shifts as well as perform other uncompensated work after their shifts and during their unpaid 

lunch breaks. 

Defendant has at all times denied the allegations asserted by Plaintiffs. As set forth in 

Defendant’s Answer and Affirmative Defenses, (Dkt. 7), it has been Defendant’s position that, 

among other things, the Plaintiffs did not perform uncompensated work for Defendant, that 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 2 of 11
3 

Defendant prohibits off-the-clock work, that the Plaintiffs are not similarly situated, that any offthe-clock work performed by the Plaintiffs is de minimus and thus not compensable. 

B. Conditional Collective Class Certification 

On June 11, 2009, Plaintiffs moved for conditional collective class certification, 

requesting permission to proceed as a collective action pursuant to the FLSA, 29 U.S.C. § 

216(b), and to provide notice of the litigation to all persons working in sales, service and in 

similar positions in Defendant’s call centers who were not compensated for all their time 

worked. (Dkt. 21) On October 22, 2009 the Court granted Plaintiffs’ motion, allowing Plaintiffs 

to proceed with other similarly situated employees and to send notice of the right to opt-in to the 

lawsuit to employees at Defendant’s Consumer call centers in Detroit, Saginaw, Port Huron, and 

Kalamazoo, Michigan; a Small Business call center in Saginaw; a Business Winback call center 

in Saginaw; a Credit & Collections call center in Detroit; and a now-closed Consumer call center 

in Southfield, Michigan who worked in sales, service and similar positions in the prior three 

years. (Dkt. 55.) The parties later agreed to amend the Order for Conditional Certification to 

add Defendant’s Wyoming, Michigan call center. Including the named Plaintiffs, there are a 

total of 437 Plaintiffs involved in this case and one additional individual for whom an opt-in 

consent forms was not filed due to a clerical error, but who Defendant has agreed to include in 

the settlement. 

C. Discovery 

Before and after the date of the Court’s Order conditionally certifying the collective class, 

the parties conducted substantial discovery. Defendant produced thousands of pages of relevant 

documents, compensation records, electronic time-stamped data and email for Plaintiffs. 

Plaintiffs also produced relevant documents, and the parties engaged in written discovery. 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 3 of 11
4 

Further, Plaintiffs’ Counsel took corporate representative depositions pursuant to Fed. R. Civ. P. 

30(b)(6) and deposed Defendant’s call center managers. Defendant’s counsel took the 

depositions of the named Plaintiff and 37 opt-in Plaintiffs. 

The parties expended significant time and resources analyzing Defendant’s time-stamped, 

electronic records and payroll data in preparation for the mediation. 

D. Motion Practice 

During the pendency of this litigation, the parties also engaged in motion practice. Soon 

after conditional certification, Plaintiffs brought a motion for a protective order, requesting that 

discovery proceed on a representative basis. (Dkt. 23.) After the Motion was fully briefed, the 

parties reached a resolution on the matter and entered a Stipulation accordingly. (Dkt. 31.) 

II. HISTORY OF SETTLEMENT

The parties have conducted arm’s-length negotiations to settle the claims asserted by the 

Plaintiffs. The parties engaged David Rotman of Gregorio, Haldeman, Piazza, Rotman, Frank & 

Feder, a mediator experienced with FLSA litigation, and attended a mediation session on 

October 4, 2010, in San Francisco, California. At the mediation, the parties reached a complete 

settlement as to all claims by the Plaintiffs. The terms of that agreement are contained in the 

Joint Stipulation of Settlement, filed under seal contemporaneously herewith. (See Exhibit 1). 

The parties have engaged a settlement administrator who is prepared to mail to each 

Plaintiff a Notice of Settlement advising that the lawsuit has been settled, the amount he or she 

would be paid under the terms of the settlement if he or she timely responds, and the Release of 

Claims to be executed as a condition of receiving settlement funds. Following distribution of the 

Notice of Settlement, Plaintiffs will have thirty days in which to accept or reject the settlement. 

Throughout this period, Plaintiffs’ Counsel will work with the settlement administrator to obtain 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 4 of 11
5 

a timely response from each eligible opt-in in response to the Notice of Settlement. The Joint 

Stipulation of Settlement describes the contingencies for Plaintiffs who fail to respond or who 

reject the settlement offer. 

Following the thirty-day period in which Plaintiffs may accept or reject the settlement, 

the parties will file a Stipulation of Dismissal, requesting that, consistent with the parties’ Joint 

Stipulation of Settlement the accepting Plaintiffs’ claims be dismissed with prejudice and any 

non-responding or rejecting Plaintiffs’ claims be dismissed without prejudice. The parties have 

set these deadlines with the goal of providing settlement payments to participating Plaintiffs in 

2010.1

III. THE PROPOSED SETTLEMENT IS A FAIR AND REASONABLE 

RESOLUTION OF THE PARTIES’ CLAIMS AND DEFENSES

Court approval is required to settle a FLSA collective action. Lynn’s Food Stores, Inc. v. 

United States, 679 F.2d 1350, 1353 (11th Cir. 1982). Under the FLSA, employees may settle 

their claims if the parties agree on the terms, the court approves the settlement as “a fair and 

reasonable resolution of a bona fide dispute over FLSA provisions,” and the settlement is entered 

as stipulated judgment. Id. at 1353, 1355. 

In the Sixth Circuit, there are seven factors the Court uses in determining whether a class 

action settlement is fair, reasonable, and adequate: (1) the risk of fraud or collusion; (2) the 

complexity, expense, and likely duration of litigation; (3) the amount of discovery engaged in by 

 

1

 The parties believe that it is in the best interest of the Plaintiffs to receive settlement payments 

and tax reporting documents this year. If that does not occur, settlement administration costs 

will increase, and the distributions to the Plaintiffs would decrease, for the following reasons: tax 

reporting documents would have to be mailed separately from settlement checks; many Plaintiffs 

will likely move before 2011 tax reporting documents are mailed, thus further increasing costs of 

returned mail and additional mailings; and the settlement administrator will have to keep the 

settlement account open for an extra year. For all of these reasons, and because of the time-value 

of money, the parties respectfully request that, if possible, this settlement be approved this year. 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 5 of 11
6 

the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class 

representatives; (6) the reaction of absent class members; and (7) the public interest. Crawford 

v. Lexington-Fayette Urban County Gov’t, 2008 WL 4724499, at * 2 (E.D. Ky. Oct 23, 2008). 

The Court may choose which factors are the most relevant based on the settlement at hand and 

the demands of the case. Redington v. Goodyear Tire & Rubber Co., 2008 WL 3981461, at * 11 

(N.D. Ohio Aug. 22, 2008). There is a strong presumption in favor of settlement agreements and 

they are a preferred method of dispute resolution. In Re Telectronics Pacing Systems, Inc., 137 

F.Supp.2d 985, 1008 (S.D. Ohio 2001). 

A. The Proposed Settlement is Fair and Reasonable. 

The settlement was the product of arm’s-length negotiations by experienced counsel. It 

provides relief to the Plaintiffs, and eliminates the inherent risks both sides would bear if this 

complex litigation were to continue. The parties participated in mediation with a qualified 

mediator, and that mediation process ultimately allowed the parties to obtain the settlement. 

Given these circumstances, a presumption of fairness should attach to the proposed settlement. 

See Lynn’s Food Stores, Inc., 679 F.2d at 1354 (recognizing that courts rely on the adversary 

nature of a litigated FLSA case resulting in settlement as an indication of fairness); see also In re 

BankAmerica Corp. Securities Litig., 210 F.R.D. 694, 700 (E.D. Mo. 2002) (“In evaluating the 

settlement, the Court should keep in mind the unique ability of class and defense counsel to 

assess the potential risks and awards of litigation; a presumption of fairness, adequacy and 

reasonableness may attach to a class settlement reached in arms-length negotiations between 

experienced, capable counsel after meaningful discovery.”). 

Consideration of several additional relevant factors confirms that the proposed settlement 

is fair and reasonable. First, the complexity, expense, and likely duration of the litigation weighs 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 6 of 11
7 

heavily in favor of finding that the settlement is fair and reasonable. Should this matter have 

continued, the parties would have completed discovery, Defendant would have brought a motion 

for decertification, and the parties would have brought dispositive motions on at least the 

following issues: (1) whether Defendant had knowledge of the Plaintiffs’ alleged off-the-clock 

work, (2) whether Defendant willfully violated the FLSA; and (3) whether the amount of 

uncompensated work performed by the Plaintiffs’ was de minimus. Following the resolution of 

those issues, the matter would have potentially proceeded to an expensive, lengthy jury trial, 

with risks to both sides, as well as likely appeals and post-trial motions. While a number of 

issues remain unresolved in this litigation, the discovery conducted thus far has enabled counsel 

for the parties to assess the respective strengths and weaknesses of their case and reach the 

conclusion that settlement under the terms set forth herein is in the parties’ best interest. 

Plaintiffs’ counsel has gained a comprehensive knowledge of the facts and legal issues 

relating to the respective claims and defenses and has ample evidence on which to base an 

informed assessment of the proposed settlement. Based on their knowledge of the case and the 

applicable law, as well as records produced by Defendant, Plaintiffs’ counsel believes the 

settlement is fair, reasonable and adequate. Courts are permitted to give the opinion of 

Plaintiff’s counsel substantial deference in approving settlement agreements. See, e.g., Manners 

v. Am. Gen. Life Ins. Co., 1999 WL 33581944, at * 27 (M.D. Tenn. Aug. 11, 1999). Indeed, the 

final settlement amount was the product of good-faith negotiations between the parties at 

mediation, and the settlement amounts for each Plaintiff vary based on employment duration 

within the statute of limitations, each Plaintiff’s time and payroll records, and involvement in the 

case. 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 7 of 11
8 

Lastly, Plaintiffs’ counsel’s attorney’s fees and costs are reasonable because the issues 

here are complex, and the parties engaged in contentious litigation for approximately one and a 

half years before they agreed upon a resolution. Moreover, the opt-in collective class members 

bore a significant risk of no recovery in this case if Defendant were to prevail on the merits. 

Plaintiffs’ counsel expended a considerable amount of resources in motion practice, discovery, 

and an analysis of each of the Plaintiffs’ individual claims. Finally, collective class members in 

this case agreed to be represented by Plaintiffs’ counsel on a contingency basis, and the fees and 

costs for attorneys’ fees reflect the terms of that agreement. Again, Courts should consider the 

“overriding public interest in favor of settlement of class action lawsuits.” Whitford v. First 

Nationwide Bank, 147 F.R.D. 135, 143 (W.D. Ky. 1992). Accordingly, the Court should 

approve the proposed settlement because it is fair, reasonable, and resolves a bona fide dispute 

between the parties. 

B. A Bona Fide Dispute Between The Parties Existed Over FLSA Coverage

Plaintiffs alleged that Defendant violated the FLSA because it failed to pay Plaintiffs for 

time worked before their shifts, after their shifts and during their lunch breaks. Defendant, on 

the other hand, argued that Plaintiffs did not perform work off-the-clock, denied that any work 

performed was compensable, and denied that Plaintiffs were similarly situated under the FLSA. 

If Plaintiffs’ ultimately prevailed, Defendant would be faced with the prospect of a 

significant monetary verdict in favor of the named Plaintiffs and the opt-in collective class, as 

well as the obligation to pay litigation fees and costs. If Defendant ultimately prevailed, 

Plaintiffs faced dismissal of their claims and no recovery of any kind. Counsel for the parties 

agree that either outcome was possible in this action, particularly given that some issues likely 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 8 of 11
9 

would have required resolution by a jury. Accordingly, the Court should conclude that a bona 

fide dispute between the parties existed. 

CONCLUSION

This FLSA collective action settlement is a product of an arm's-length negotiation 

between counsel and resolves a bona fide dispute between the parties. After engaging in lengthy 

discovery and a thorough analysis of relevant information, the parties resolved the issues 

between them in mediation before an experienced mediator. The settlement is fair, reasonable 

and adequate, and provides Plaintiffs’ monetary relief for their claims. For these reasons, and 

those set forth above, the Court should grant the motion for settlement approval. Additionally, 

the parties respectfully request that the Court promptly enter an Order on the parties’ Stipulation 

of Dismissal, which will be filed immediately following the thirty-day period in which Plaintiffs 

may accept or reject the settlement, so that the accepting Plaintiffs’ claims may be dismissed 

with prejudice, any non-responding or rejecting Plaintiffs’ claims may be dismissed without 

prejudice, and this matter may be closed and removed from the Court’s docket. 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 9 of 11
10 

Respectfully submitted, this 29th day of October, 2010. 

 

By: /s/ Megan I. Brennan By: /s/ Leslie A. Dent 

James H. Kaster, MN Bar #53946 Leslie A. Dent, GA Bar #218566 

kaster@nka.com lesliedent@paulhastings.com

Paul J. Lukas, MN Bar #22084X Daniel P. Hart, GA Bar #141679 

lukas@nka.com danielhart@paulhastings.com

Megan I. Brennan, MN Bar #0386550 PAUL, HASTINGS, JANOFSKY & 

mbrennan@nka.com WALKER LLP 

NICHOLS KASTER, PLLP 600 Peachtree Street, N.E., Suite 2400 

4600 IDS Center Atlanta, GA 30308-2222 

80 South Eighth Street Tel: (404) 815-2400 

Minneapolis, MN 55402 Fax: (404) 815-2424 

Tel: (612) 256-3200 

Fax: (612) 338-4878 Albert Calille (P26819) 

 Attorney for Michigan Bell Telephone 

Maureen M. Crane (P58904) Company

Pitt, McGehee, Palmer, Rivers & Golden, PC 444 Michigan Avenue, Suite 1750 

117 W. Fourth Street, Suite 200 Detroit, MI 48226

Royal Oak, MI 48067 

Tel: (248) 398-9800 

Fax: (248) 398-9804 

 

ATTORNEYS FOR PLAINTIFFS ATTORNEYS FOR DEFENDANT 

 Michigan Bell Telephone Company 

 

 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 10 of 11
11 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

________________________________________________________________________ 

Scott A. Fisher and Jessie J. LaForest, 

individually and on behalf of others 

similarly situated, 

 Civil Action No.: 09-CV-10802 

 Plaintiffs, Honorable Nancy G. Edmunds 

Magistrate Judge R. Steven Whalen 

v. 

 

Michigan Bell Telephone Company, 

 Defendant. 

CERTIFICATE OF SERVICE

 I hereby certify that on October 29, 2010, I electronically filed the foregoing JOINT 

MOTION FOR APPROVAL OF FLSA SETTLEMENT with the Clerk of Court using the 

CM/ECF system which will automatically send e-mail notification of such filing to the following 

attorneys of record: 

Leslie A. Dent (lesliedent@paulhastings.com) 

Daniel P. Hart (danielhart@paulhastings.com) 

Albert Calille (ac2812@att.com) 

 

 /s/ Megan I. Brennan 

 Counsel for Plaintiffs 

Case 2:09-cv-10802-NGE-RSW Document 135 Filed 10/29/10 Page 11 of 11