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William P. Allen: 011161

ALLEN LAW FIRM LLC

61 West Willetta St.

Phoenix, AZ 85003

Telephone: (602) 478-5269

Email: ballen@azbar.org

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Dominique Rose,

Plaintiff,

v.

Dalton Corporation d/b/a Chica’s Cabaret,

Regina Scott, Phillipe Howery, and Jose

Navaoruz

Defendants

Case No.: 2:15-cv-02562

JOINT MOTION FOR APPROVAL

OF SETTLEMENT AND

DISMISSAL WITH PREJUDICE

In accordance with the Court’s order of March 22, 2017, the parties jointly move for

approval of the parties’ settlement as a fair and reasonable compromise under the circumstances,

and further, stipulate to the dismissal of this action.

This motion is supported by the attached memorandum of points and authorities and

incorporated pleadings on file.

THEREFORE, Plaintiff and Defendants request that the Court approve their compromise

and dismiss this action with prejudice, with all parties to bear their own fees and costs in the

form of order attached and incorporated by reference.

Case 2:15-cv-02562-SMM Document 35 Filed 04/19/17 Page 1 of 3
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MEMORANDUM OF POINTS AND AUTHORITIES

Thirty five years ago, the Eleventh Circuit Court of Appeals identified a legal cloud over

enforceability of Fair Labor Standards Act settlements in the course litigation, stating,

“[C]ompromises of FLSA back wage or liquidated damages [action] may

[only] be allowed [pursuant to] a stipulated judgment entered by a court

which has determined that a settlement proposed by an employer and

employees, in a suit brought by the employees under the FLSA, is a fair

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

Lynn’s Food Stores v. United States, 679 F. 2d 1350, 1355 (11th Cir. 1982); but see, Martin v.

Spring Break `83 Productions, L.L.C. 688 F.3d 247 (5th Cir. 2012) (court approval in litigated

FLSA case not required).

Recognizing the threat an unenforceable settlement contract poses to the finality of

litigation and repose of the litigants, many district courts throughout the country, including those

in the Ninth Circuit, have since required parties to submit settlement details for scrutiny prior to

dismissal of FLSA claims. E.g., Selk v. Pioneers Memorial Healthcare Dist., 159 F.Supp.3d

1164 (S.D. Cal. 2016).

While different legal tests exist to determine if a FLSA settlement presents “a fair and

reasonable resolution of a bona fide dispute,” the focus is on the particular circumstances of the

matter at hand at the time the settlement is submitted. Id. at 1172-73. This analysis includes the

stage of the proceedings, the strength or weakness of plaintiff’s case, the views of counsel, and

the possibility of fraud or collusion. Id.

In this case, plaintiff asserted overtime and minimum wage claims based on the FLSA,

and state law wage claims based on the same allegations. (Complaint, Doc#1). Defendants’

motion for summary judgment (Doc#25) was pending when settlement was reached. That

motion primarily argued that Dalton Corporation’s annual gross revenues failed to qualify it as

an enterprise covered by the FLSA.

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The parties, by counsel, agreed that Defendants’ motion would be difficult for Plaintiff to

overcome, and even then, lead to an uncertain trial. After negotiation, the Defendants agreed to

pay Plaintiff $1,200 in return for a stipulation to dismiss this action with prejudice, all parties to

bear their own costs and fees. In addition, Plaintiff’s counsel has agreed with Plaintiff not to

take any portion of the recovery as an attorneys’ fee and instead will only recoup costs in the

amount of $406.74. As such, Plaintiff’s recovery will be $793.26.

In a case like this, where (1) there is no ongoing relationship between the parties, (2)

relevant limitations have expired, and (3) no question of confidential or protected information

exists, the parties agreed the principles of res judicata offered sufficient protection and no

written settlement “agreement” is required.

Counsels, who have experience in FLSA matters, certify that the settlement was secured

without fraud or collusion, and believe it to be fair and reasonable under the circumstances

presented in this action.

THEREFORE, the parties request that the Court approve their compromise and dismiss

this action with prejudice, with all parties to bear their own fees and costs.

DATED THIS 19th DAY OF April, 2017

BENDAU LAW FIRM LLC ALLEN LAW FIRM LLC

/s/ Clifford J. Bendau /s/ William P. Allen

P.O. Box 97066 61 W. Willetta St.

Phoenix, AZ 85060 Phoenix, AZ 85003

Attorney for Plaintiff Attorney for Defendants

I hereby certify that on April 19,

2017, I electronically filed this

document with the Arizona

District Court Clerk

By: /s/ William P. Allen

Case 2:15-cv-02562-SMM Document 35 Filed 04/19/17 Page 3 of 3