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LEAD ATTORNEYS IN CHARGE FOR

PLAINTIFF AND CLASS MEMBERS

James X. Bormes (Admitted pro hac vice)

LAW OFFICE OF JAMES X. BORMES, P.C.

Illinois State Bar No. 620268

8 South Michigan Avenue

Suite 2600

Chicago, Illinois 60603

(312) 201-0575

jxbormes@bormeslaw.com

Thomas M. Ryan (Admitted pro hac vice)

LAW OFFICE OF THOMAS M. RYAN, P.C.

Illinois State Bar No. 6273422

35 East Wacker Drive

Suite 650

Chicago, Illinois 60601

(312) 726-3400

Tom@tomryanlaw.com

Attorney for Plaintiff

LOCAL COUNSEL:

Michelle R. Matheson #019568

MATHESON & MATHESON, P.L.C.

15300 North 90th Street

Suite 550

Scottsdale, Arizona 85260

(480) 889-8951

mmatheson@mathesonlegal.com

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

WHITNEY WHITMORE, individually and

on behalf of all others similarly situated,

Plaintiff,

v.

REMEDY TEMPORARY SERVICES, 

INC. and MCKESSON SPECIALTY 

ARIZONA, INC. 

Defendants.

Case No.: 15 cv 2161 SRB

UNOPPOSED MOTION FOR ORDER 

GRANTING FINAL APPROVAL OF 

COLLECTIVE ACTION 

SETTLEMENT AND MEMORANDUM 

OF POINTS AND AUTHORITIES IN 

SUPPORT THEREOF 

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TABLE OF CONTENTS

 Page

I. INTRODUCTION....................................................................................................... 1

II. PROCEDURAL AND FACTUAL HISTORY........................................................... 1

A. The Litigation................................................................................................ 1

B. The Preliminarily Approved Settlement Agreement .................................... 2

C. The Court's Preliminary Approval Order...................................................... 3

D. The Claims and Settlement Administration .................................................. 3

III. THE COURT SHOULD GRANT FINAL APPROVAL AND 

ENTER JUDGMENT AND THE DISMISSAL ORDER ....................................... 5

A. This Case Presented Bona Fide Disputes Over Entitled to Overtime 

Wages............................................................................................................ 6

B. The Settlement is a Reasonable Compromise of Disputed Issues................ 6

IV. CONCLUSION ........................................................................................................... 8

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TABLE OF AUTHORITIES

Page(s)

Cases

Barbosa v. Cargill Meat Sol. Corp.

297 F.R.D. 431, 446 (E.D. Cal. 2013) ........................................................................... 8

Campanelli v. Hershey Co.,

2011 WL 3583597 (N.D. Cal. 2011) ............................................................................. 5

Fontes v. Drywood Plus, Inc.,

2013 WL 6228652 (D. Ariz. 2013)................................................................................ 5

Lopez v. Arizona Public Service Co.,

2010 WL 1403873 (D. Ariz. 2010)................................................................................ 5

Lynn’s Food Stores, Inc. v. U.S.,

679 F.2d 1350 (11th Cir. 1982) .................................................................................. 5, 6

Mars Steel Corp. v. Continental Ill. Nat’l Bank & Trust

 834 F.2d 677 (7th Cir. 1987)........................................................................................... 7

Marshall v. Holdiay Magic, Inc.,

550 F.2d 1173 (9th Cir. 1977) ........................................................................................ 7

Newman v. Stein,

464 F.2d 689 (2nd Cir. 1972).......................................................................................... 7

Officers for Justice v. Civil Service Commission,

688 F.2d 615 (9th Cir. 1982) .......................................................................................... 8

Protective Committee for Indep. Stockholders of TMT Trailer v. Anderson,

390 U.S. 414 (1968)....................................................................................................... 7

West Virginia v. Chas. Pfizer & Co.,

314 F.Supp. 710 (S.D.N.Y. 1970) ................................................................................. 6

Statutes

29 U.S.C. § 216(b)............................................................................................................... 1

Fair Labor Standards Act............................................................................................ passim

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MOTION

On March 29, 2017, the Court entered an Order granting preliminary approval of 

the Fair Labor Standards Act (“FLSA”) collective action settlement. (Doc. No. 86). The 

Court’s March 29, 2017 Order also conditionally certified the collective for settlement 

purposes only, approved the notice of settlement issued to the settlement collective, and set 

a final fairness hearing for June 12, 2017. 

As further explained in the following Memorandum of Points and Authorities, the 

claims administration process proceeded in an orderly fashion and without issue. 264

settlement members submitted timely claim forms to the third party claims administrator. 

The Parties accordingly move this Court for an order granting final approval of the 

collective action settlement. 

DATED this 26th day of May, 2017.

s/ James X. Bormes

(Admitted pro hac vice)

James X. Bormes

LAW OFFICE OF JAMES X. 

BORMES, P.C.

Illinois State Bar No. 620268

8 South Michigan Avenue, Suite 

2600

Chicago, Illinois 60603

(312) 201-0575

jxbormes@bormeslaw.com

Thomas M. Ryan

(Admitted pro hac vice)

LAW OFFICE OF THOMAS M. 

RYAN, P.C.

Illinois State Bar No. 6273422

35 East Wacker Drive

Suite 650

Chicago, Illinois 60601

(312) 726-3400

tom@tomryanlaw.com

LOCAL COUNSEL:

Michelle R. Matheson #019568

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MATHESON & MATHESON, 

P.L.C.

15300 North 90th Street

Suite 550

Scottsdale, Arizona 85260

(480) 889-8951

mmatheson@mathesonlegal.com

Attorneys for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION 

Plaintiff brought claims for unpaid overtime under the FLSA, 29 U.S.C. § 216(b). 

She brought her claims individually and on behalf of similarly situated hourly-paid workers 

at a call center located in Scottsdale, Arizona. 

After the Court granted preliminary approval of the parties’ collective action 

settlement, the third party claims administrator issued notice to the settlement members. 

The claims administration proceeded in an orderly fashion and without issue. The parties 

now seek the Court’s final approval of their settlement.

II. PROCEDURAL AND FACTUAL HISTORY

A. The Litigation

 As set forth in Plaintiff’s Unopposed Motion for Preliminary Approval, on October 

27, 2016 Plaintiff filed a one-count complaint against Remedy Temporary Services, Inc. 

(“Remedy”). The single count involved claims for unpaid overtime under the FLSA. 

Plaintiff worked at a call center in Scottsdale, Arizona. Remedy, a staffing agency

doing business as “RemX”, placed Plaintiff at the Scottsdale call center operated by 

McKesson Specialty Arizona, Inc. (“McKesson”) where she worked as a telephonededicated customer service representative. On behalf of McKesson, she handled phone 

calls regarding medicines, medical supplies and health care information. Plaintiff claims 

that Defendants required and/or permitted her and other workers to perform unpaid work 

before and after the start and end times of their shifts, including but not limited to booting 

up their computers, initializing several software programs necessary for handling phone 

calls, reading company issued emails and instructions, and completing customer service 

calls.

On December 3, 2015, Remedy filed a motion to dismiss and to compel arbitration. 

(ECF No. 17.) Following briefing and argument, the Court denied the motion to dismiss 

and to compel arbitration. (ECF No. 35.) On March 22, 2016, Plaintiff filed her Amended 

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Complaint which named McKesson as a party and added joint employer allegations against 

the Defendants. (ECF No. 38.) On May 17, 2015, Plaintiff filed her Second Amended 

Complaint correcting the name of McKesson Corporation to McKesson Specialty Arizona, 

Inc. (ECF No. 57.) Defendants filed Answers and Affirmative Defenses denying 

Plaintiff’s claims of unpaid overtime. (ECF Nos. 54, 61.)

The Parties exchanged disclosures and Defendants responded to written discovery 

and produced timekeeping, payroll, and login data for Plaintiff. Plaintiff deposed four 

witnesses – two employed by Remedy and two employed by McKesson. On October 27, 

2016, the Parties stipulated to a stay of discovery and proceedings in order to attempt 

mediation in San Francisco, California with David A. Rotman, Esq., a nationally 

recognized mediator who specializes in employment cases and wage and hour cases. For 

the mediation, Defendants produced a sample of workforce data for Remedy workers 

assigned to McKesson’s Scottsdale facility as telephone-dedicated employees. 

On January 13, 2017, the parties conducted an all-day mediation at which they 

reached an agreement to resolve the overtime claims pertaining to, arising from, and 

associated with this lawsuit.

B. The Preliminarily Approved Settlement Agreement

On March 29, 2017, the Court preliminarily approved the Parties’ settlement 

agreement. (ECF No. 86) The settlement agreement provides for a maximum gross 

settlement amount of $350,000.00 (“GSA”). This amount comprises all payments to 

individuals contemplated by the Settlement Agreement, including payments for service 

awards, attorneys’ fees and costs, interest, liquidated and/or multiple damages, all costs of 

litigation and settlement administration, and any other costs, damages, or payments of any 

kind.

After all Court-approved deductions to the GSA, including a reasonable service 

award, attorneys’ fees, costs of litigation, and settlement administration, the remaining net 

settlement funds (“NSF”) will be distributed to each individual who timely submitted 

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his/her Consent, Claim Form and Release (“Opt-In Plaintiff”). 50% of the payment to each 

Opt-In Plaintiff shall constitute wages from which the employer’s and employee’s 

applicable payroll taxes shall be withheld, and 50% of the settlement payment to each OptIn Plaintiff shall constitute liquidated damages. Defendants’ contribution to payroll taxes 

shall be paid from the residual (unclaimed funds) of the NSF.

Each Opt-In Plaintiff who did not work a minimum of one workweek of at least 40 

hours per workweek shall receive a one-time payment of approximately $15.50. Each OptIn Plaintiff who worked one or more workweeks of 40 hours or more per workweek, by 

formula, is allocated a pro rata share of the remaining NSF in proportion to the number of 

overtime workweeks each Opt-In Plaintiff worked as against the total number of overtime 

workweeks worked by all members of the settlement. The approximate individual 

settlement amounts for each of the 1,376 individuals who were eligible to participate in the 

settlement are listed as Exhibit A to the Settlement Agreement (ECF No. 83-1, pp. 13-43.) 

The individual settlement payments that were available to be claimed ranged from $15.50 

to $945.50.

C. The Court’s Preliminary Approval Order

 On March 16, 2017, Plaintiff filed her Unopposed Motion for Preliminary Approval 

of the Parties’ Proposed Collective Action Settlement. (ECF No. 83). On March 29, 2017, 

the Court granted preliminary approval of the Parties’ proposed settlement and scheduled 

a final fairness hearing for June 12, 2017. (ECF No. 86). The Court specifically found, on 

a preliminary basis, that the Settlement is fair, reasonable, and adequate. (Id. at ¶ 4.) In 

addition, the Court approved, as to form and content, the proposed Notice of Class Action 

Settlement (“Class Notice”) and Claim Form, and directed notice to be sent to the class. 

(Id. at ¶ 5.) 

D. The Claims and Settlement Administration 

On April 4, 2017, the Claims Administrator received the list of the 1,376 individuals 

eligible to participate in the settlement. (Ex. 1, ¶ 4.) Upon receipt of the settlement list, 

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the Claims Administrator ran the last known addresses of the settlement members through 

the National Change of Address Database in order to update the addresses. (Id., ¶ 5.) 

On April 6, 2017, the Claims Administrator mailed via United States Post Office 

first class mail the Court-approved materials which included the Class Notice and the 

Claim Form (collectively, a “Notice Packet”), to the 1,376 settlement members. (Id. at ¶ 

6.) As required by the Settlement Agreement and as approved by the Court in its 

Preliminary Approval Order, these notice materials informed Class Members of: their right 

to file a Claim Form seeking their individual settlement payment; their ability to learn more 

detailed information by contacting Plaintiff’s Counsel and/or the Claims Administrator; 

the consequences of not responding to the materials in the Notice Packet (i.e., not receiving 

payment under the settlement); and their right to object to the Settlement. 

The deadline to submit a claim form, objection, or request exclusion from the 

Settlement, was May 22, 2017. (Id. at ¶ 6.) During the opt-in period, the Claims 

Administrator received 293 notice packets that were returned as undeliverable due to old 

and/or bad addresses. (Id., ¶ 7.) The Claims Administrator sent these 293 to a professional 

address search firm for skip tracing in order to attempt to find a current address for these 

individuals. (Id..) 189 of these 293 notice packets were returned with updated addresses 

following the skip trace and were then mailed again to the settlement members. (Id.) Of 

the one hundred eighty-nine (189) Notice Packets re-mailed to a traced address, one 

hundred two (102) was subsequently returned as undeliverable. (Id.) As of May 23, 2017, 

five (5) Notice Packets were returned as undeliverable with a forwarding address and were 

subsequently re-mailed to the forwarding address. (Id.) 

Ultimately, 264 individuals submitted timely Claim Forms seeking payment from 

the net settlement proceeds. (Id. at ¶ 9.) The total claimed amount of the 264 valid and 

timely claims is approximately $46,655.00. No settlement member objected to the 

Settlement. 

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III. THE COURT SHOULD APPROVE THE SETTLEMENT AND ENTER 

JUDGMENT AND THE DISMISSAL ORDER

 It is generally accepted by courts that settlements of opt-in collective actions under

the FLSA must be supervised by the Department of Labor or reviewed by a court or other 

judicial officer for fairness in order to be enforceable. Lynn’s Food Stores, Inc. v. U.S., 679 

F.2d 1350, 1352-53 (11th Cir. 1982); Fontes v. Drywood Plus, Inc., 2013 WL 6228652, at 

*5 (D. Ariz. 2013). “A district court may approve [an FLSA] settlement agreement if it 

reflects a ‘reasonable compromise over the issues.’” Fontes, 2013 WL 6228652, at *5 

(quoting Lopez v. Arizona Public Service Co., 2010 WL 1403873, at * 1 (D.Ariz. 2010)). 

FLSA settlements must reflect “a fair and reasonable resolution of a bona fide 

dispute over FLSA provisions.” Lynn’s Food Stores, 679 F.2d at 1355. Court approval is 

favored “to promote the policy of encouraging settlement of litigation,” where the 

settlement reflects a “reasonable compromise over issues” that are “actually in dispute.” 

Id. at 1354.

 Court approval serves as a safeguard that an FLSA settlement is not “a mere waiver 

of statutory rights brought about by an employer’s overreaching.” Lynn’s Food Stores, 679 

F.2d at 1354. However, FLSA collective actions are not class actions, and the Rule 23 

settlement review process does not apply. Campanelli v. Hershey Co., 2011 WL 3583597, 

at *1 (N.D.Cal. 2011). That is because an FLSA settlement such as this one does not 

involve absent class members. Rather, Plaintiffs’ Counsel has been in contact with their 

clients throughout the case, and the 264 participating Plaintiffs have each affirmatively 

agreed to the settlement. The decision to approve an FLSA settlement lies within the trial

court’s discretion. Lynn’s Food, 679 F.2d at 1350.

 Here, the settlement reflects a “reasonable compromise” on numerous issues, 

including: Plaintiff’s and the participating individuals’ entitlement to overtime; the 

appropriate method for calculating overtime, including the appropriate statute of 

limitations and the availability of liquidated damages; and the number of overtime hours 

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worked. The Settlement satisfies the Lynn’s Food standard, and the Court should approve 

the settlement of the FLSA claims.

A. This Case Presented Bona Fide Disputes Over Entitlement to Overtime Wages

 The early life of this case was marked by motion practice seeking to dismiss the 

claim entirely and to compel the arbitration of Plaintiff’s claims. In addition to this motion 

practice, the Parties engaged in contentious discovery practice and the depositions of four 

individuals employed by Defendants. Counsel have vigorously pursued their positions and 

the rights of their clients through arms-length negotiations, supported by informal 

discovery, information exchanges, and legal and factual analysis. This case involves 

disputes over numerous issues that, were this case to proceed, would involve additional 

substantial motion practice. Plaintiff would need to support collective treatment, oppose 

Defendants’ affirmative defenses, establish the amount of overtime worked, and justify the 

method of calculating damages. Plaintiff considered each of these issues in mediation and 

throughout the subsequent settlement discussions, and recognition of these issues led to the 

negotiated settlement that Plaintiffs have embraced.

B. The Settlement is a Reasonable Compromise of Disputed Issues

 Should this litigation continue, there are a range of possible outcomes including 

ones far less favorable to Plaintiff and the settlement members, including the very real 

prospect that they might receive nothing at all. Indeed, significant litigation risks remain 

in obtaining collective action certification in this matter (as the matter was certified for 

settlement purposes only), proving liability, and establishing damages, and aspects of the 

case could be subject to ultimate rejection. Bona fide disputes exist as to whether Plaintiff 

and the settlement members were properly compensated in accordance with the FLSA and 

federal wage laws, as well as the nature and extent of their potential damages. Thus, as in 

any complex action, the Plaintiff generally faced uncertainties. See West Virginia v. Chas. 

Pfizer & Co., 314 F.Supp. 710, 743-44 (S.D.N.Y. 1970) (“[i]t is known from past 

experience that no matter how confident one may be of the outcome of litigation, such 

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confidence is often misplaced.”). 

Determining a “reasonable” settlement amount is never simply a mathematical 

calculation that yields a particularized sum. Rather, “in any case there is a range of 

reasonableness with respect to a settlement....” Newman v. Stein, 464 F.2d 689, 693 (2nd 

Cir. 1972). This case is no different in that, prior to beginning negotiations, there was a 

range of potential settlements that would have been reasonable. 

The Settlement provides substantial monetary benefits now, without the time, 

difficulties, expense and uncertainty of further litigation and without the years of delay any 

appeal might cause. See Mars Steel Corp. v. Continental Ill. Nat’l Bank & Trust, 834 F.2d 

677, 682 (7th Cir. 1987) (a settlement is fair “if it gives [plaintiffs] the expected value of 

their claim if it went to trial, net the costs of trial.”). Each participating Class Member’s 

settlement payment has been calculated pursuant to the formulas set forth in Paragraph 65 

of the Settlement Agreement, and is based on the number of overtime weeks the Class 

Member worked during the Class Period. Thus, the Settlement ensures that the 

participating Class Members will receive reasonable monetary relief. Consequently, this 

factor supports a finding that the Settlement is fair, adequate, and reasonable. 

 Avoiding the delay and risk of protracted litigation is another reason counsel 

frequently recommends, and thus courts approve, settlements. See, e.g., Protective 

Committee for Indep. Stockholders of TMT Trailer Ferry v. Anderson, 390 U.S. 414, 424 

(1968) (judge must consider “the complexity, expense, and likely duration of the 

litigation); Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977). This 

consideration applies with full force to this case.

Further litigation would require the risk, time and expense associated with a motion 

for collective certification, trial, and possible appeals. Trial of this action alone would 

consume several weeks and require the expenditure of hundreds of thousands of dollars 

in additional costs and attorney time. As such, the costs of further litigation become 

considerable in terms of both time and money with uncertain results. Under these 

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circumstances, the benefits of a guaranteed recovery today, rather than an uncertain result 

years in the future, are readily apparent.

 The Court should approve the settlement because it reflects a compromise of 

disputed issues. Plaintiff’s and the settlement members’ ability to obtain and maintain 

conditional certification, their entitlement to overtime, the amount of overtime, and the 

proper calculation of damages are all disputed, and the settlement reflects compromise on 

all of these issues.

 “It is well-settled law that a cash settlement amounting to only a fraction of the 

potential recovery will not per se render the settlement inadequate or unfair.” Officers for

Justice v. Civil Service Commission, 688 F.2d 615, 628 (9th Cir. 1982). As the Ninth 

Circuit noted in Officers for Justice, “[u]ltimately the amount of the [settlement payments] 

will be less than what some class members feel they deserve but, conversely, more than 

the defendants feel those individuals are entitled to. This is precisely the stuff from which 

negotiated settlements are made.” Id. Here, the total settlement amount represents a 

compromise on the likelihood of establishing liability and on the amount and calculation 

of damages. The Court should approve the settlement because the payments to Plaintiff 

and the settlement members are substantial, and they represent a reasonable compromise 

of their FLSA claims.

IV. CONCLUSION

 This settlement avoids expenditures of resources for all parties and the Court, and

provides “significant benefit that [Plaintiff and the settlement members] would not receive 

if the case proceeded – certain and prompt relief.” Barbosa v. Cargill Meat Sol. Corp., 297 

F.R.D. 431, 446 (E.D. Cal. 2013). Because the settlement represents a fair and reasonable 

resolution of a bona fide dispute over wages, as opposed to employer overreaching, the 

Court should approve the settlement.

A proposed Order granting final approval of the FLSA collective action settlement 

is attached hereto as Exhibit 2. 

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DATED this 26th day of May, 2017.

 s/ James X. Bormes

(Admitted pro hac vice)

James X. Bormes

LAW OFFICE OF JAMES X. BORMES, P.C.

Illinois State Bar No. 620268

8 South Michigan Avenue, Suite 2600

Chicago, Illinois 60603

(312) 201-0575

jxbormes@bormeslaw.com

Thomas M. Ryan

(Admitted pro hac vice)

LAW OFFICE OF THOMAS M. RYAN, P.C.

Illinois State Bar No. 6273422

35 East Wacker Drive

Suite 650

Chicago, Illinois 60601

(312) 726-3400

tom@tomryanlaw.com

LOCAL COUNSEL:

Michelle R. Matheson #019568

MATHESON & MATHESON, P.L.C.

15300 North 90th Street

Suite 550

Scottsdale, Arizona 85260

(480) 889-8951

mmatheson@mathesonlegal.com

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2017, I electronically transmitted the foregoing 

document to all counsel of record via the Court’s CM/ECF system, which will send 

notification of such filing to the following at their e-mail addresses on file with the Court: 

Gerald L. Maatman, Jr.

Christina M. Janice

Thomas Ahlering

SEYFARTH SHAW, LLP

131 S. Dearborn Street, Suite 2400

Chicago, Illinois 60603-5577

Attorneys for Defendant Remedy

Temporary Services

Thomas A. Gilson

BEUS GILBERT, PLLC

701 N. 44th St.

Phoenix, AZ 85008

Local Counsel for Defendant Remedy

Temporary Services, Inc.

Tibor Nagy, Jr.

Allec Hillbo

OGLETREE, DEAKINS, NASH, SMOAK &

STEWART, P.C.

3430 E. Sunrise Drive, Suite 220

Tucson, AZ 85718

Attorneys for Defendant

McKesson Specialty Arizona, Inc.

/s/ James X. Bormes

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