IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

David Lechuga and Shamsadin 

Muhammad, on behalf of 

themselves and all similarly 

situated employees 

Plaintiffs, 

) 

) 

) 

)

)

)

) 

 v. ) No. 20 C 3378 

Elite Engineering, Inc., et 

al., 

Defendants. 

)

)

)

) 

Memorandum Opinion and Order 

 The named plaintiffs in this action allege on behalf of 

themselves and others similarly situated that they performed work 

for defendants as de facto employees of Elite Engineering, but 

defendants misclassified them as independent contractors. As a 

result, plaintiffs claim, they were denied overtime pay to which 

they were entitled under the Fair Labor Standards Act (“FLSA”) and 

parallel laws of Missouri, New York, Ohio, and Wisconsin. Plaintiff 

Lechuga also asserts individual and class claims under New York 

law, alleging that defendants failed to provide appropriate wage 

notices and wage statements. 

According to the Amended Complaint, plaintiffs and the class 

members were cable television installation technicians who 

performed defendants’ primary business activity of installing 

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cable television in the above-named states. Defendants’ answer 

denies that either named plaintiff was an employee of Elite 

Engineering; denies that Muhammad performed any work for Elite 

Engineering at all; and denies that defendants misclassified the 

members of the FLSA collective and putative class or compensated 

any of them unlawfully. Defendants also assert various affirmative 

defenses. 

 In October of 2020, I granted plaintiffs’ motion for 

conditional certification of the FLSA claim pursuant to 29 U.S.C. 

§ 216(b). I later stayed the case by agreement while the parties 

exchanged information bearing on liability and damages and engaged 

in mediation. In an unopposed, “consent” motion, plaintiffs now 

seek: (1) certification of a Fair Labor Standards Act (“FLSA”) 

collective action and Missouri, New York, Ohio, and Wisconsin class 

actions for settlement purposes, (2) approval of the parties’ 

collective action settlement, (3) preliminary approval of the 

parties’ class action settlement, (4) approval of notice to the 

putative claimants, and (5) a hearing for final approval of the 

class action settlement agreement. The motion is granted as to 

collective and class certification and is otherwise denied without 

prejudice for the reasons explained below. 

In deciding a motion for preliminary approval of a class 

action settlement and certification of a settlement class, I must 

undertake two essential inquiries: First, I must “conduct an 

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independent class certification analysis,” giving “heightened 

attention” to the requirements of Rule 23, given the parties’ nonadversarial posture. In re Nat'l Collegiate Athletic Ass'n 

Student-Athlete Concussion Inj. Litig., 314 F.R.D. 580, 588 (N.D. 

Ill. 2016). Second, I must decide whether the proposed settlement 

is “within the range of possible approval,” as the first of two 

steps to determine whether the proposed Rule 23 settlement is fair, 

adequate, reasonable, and not a product of collusion. Armstrong v. 

Bd. of Sch. Dirs. of Milwaukee, 616 F.2d 305, 314 (7th Cir. 1980),

overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th 

Cir. 1998).

A. Class Certification 

The parties seek to certify one settlement class defined as: 

All Technicians who performed work for Defendants 

between June 8, 2017 and December 4, 2021[,] and all 

persons who have previously filed with the Court a 

consent to join the FLSA claim asserted in the 

Litigation. 

Mot. at 4. This class, they agree, comprises seventy-five 

individuals, all of whom have been identified. 

District courts have broad discretion to determine whether 

certification of a class is appropriate. Arreola v. Godinez, 546 

F.3d 788, 794 (7th Cir. 2008). Nevertheless, courts must perform 

a “rigorous analysis” to ensure that each prerequisite of Rule 

23(a)—numerosity, commonality, typicality, and adequacy of 

representation—is satisfied, as well as one subsection of Rule 

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23(b). Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S. 

Ct. 2364, 2372, 72 L. Ed. 2d 740 (1982); see also Oshana v. Coca–

Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). In combined actions, 

i.e., suits alleging both FLSA violations on behalf of a collective 

and state law violations on behalf of a class, “the question 

whether a class should be certified under Rule 23(b)(3) will turn—

as it always does—on the application of the criteria set forth in 

the rule.” Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th 

Cir. 2011). 

Numerosity: To satisfy Rule 23’s numerosity requirement, the 

proposed class must be “so numerous that joinder of all members is 

impracticable.” Fed. R. Civ. P. 23(a)(1). The proposed class 

comprises 75 individuals, which is well over the number the Seventh 

Circuit has found sufficient to satisfy Rule 23(a). See, e.g. 

Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 859-60 

(7th Cir. 2017) (“While there is no magic number that applies to 

every case, a forty-member class is often regarded as sufficient 

to meet the numerosity requirement.”). The proposed class meets 

this criterion. 

Commonality: Rule 23(a)(2) requires that there be “questions 

of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 

Plaintiffs must “demonstrate that the class members have suffered 

the same injury” and that their claims “depend upon a common 

contention...capable of classwide resolution—which means that 

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determination of its truth or falsity will resolve an issue that 

is central to the validity of each one of the claims in one stroke.” 

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50, 131 S. Ct. 

2541, 2551, 180 L. Ed. 2d 374 (2011). This requirement is satisfied 

in this case because all class members held the same job, were 

compensated in the same manner, and assert the same legal theory 

based on the “economic reality test”—which they seek to establish 

using common evidence. See Mot. at 9. 

 Typicality: “Typicality is closely related to commonality.” 

In re AT & T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 

330, 342 (N.D. Ill. 2010) (citing Keele v. Wexler, 149 F.3d 589, 

595 (7th Cir. 1998) (a “plaintiff’s claim is typical if it arises 

from the same event or practice or course of conduct that gives 

rise to the claims of other class members and his or her claims 

are based on the same legal theory.”)). That, too, is the case 

here: the parties agree that there are seventy-five individuals in 

the class, and plaintiffs allege that all of them were wrongly 

classified as independent contractors when the evidence—WhatsApp 

logs, text messages, and other communications between defendants 

and technicians—establishes that they were employees based on the 

“economic reality of the working relationship.” Hollins v. Regency 

Corp., 867 F.3d 830, 835 (7th Cir. 2017) (internal quotation marks 

and citation omitted). 

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 Adequacy of Representation: Rule 23(a)(4) requires plaintiffs 

to establish that “the representative parties will fairly and 

adequately protect the interests of the class.” Amchem Prod., Inc. 

v. Windsor, 521 U.S. 591, 625 (1997). The adequacy inquiry 

comprises two parts: “(1) the adequacy of the named plaintiffs as 

representatives of the proposed class’s myriad members, with their 

differing and separate interests, and (2) the adequacy of the 

proposed class counsel.” Gomez v. St. Vincent Health, Inc., 649 

F.3d 583, 592 (7th Cir. 2011), as modified (Sept. 22, 2011). The 

first prong is satisfied, as the parties propose just one 

settlement class, and the named plaintiffs’ interests are aligned 

with the interests of the absent class members: their individual 

claims are typical of the class claims, as the named plaintiffs 

held the same position and suffered the same injury, based on the 

same payment scheme, during the same time period as all other class 

members. No conflicts of interest are apparent. 

As for the second prong, there is no question that class 

counsel are highly experienced in this type of litigation and that 

they have the resources and expertise to represent the class 

competently. Nevertheless, their submissions bear the hallmarks of 

a high-volume law practice, including occasional but significant 

errors that I presume result from the recycling of materials 

previously prepared in conjunction with other class settlements. 

Compare, e.g., Settlement Release Agreement, Exh. 1 at 3 (defining 

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“Total Settlement Amount” as “the total payments required of 

Defendants under this Agreement and for purposes of calculating 

the Gross Settlement Amount, which shall not exceed $400,000”) 

with Notice of Settlement Form, Exh. 2 at 2 (notifying class 

members that “[t]he proposed settlement obligates Defendants to 

pay up to a gross settlement amount (referred to in the Settlement 

Agreement as the ‘Maximum Settlement Amount’) of $274,971.22.”); 

and compare Settlement Release Agreement, Exh. 1 at 3 (providing 

“Service awards to Named Plaintiff David Lechuga of $5,000.00 and 

to Named Plaintiff Shamsadin Muhammad of $2,000 each (sic)” with

Notice of Settlement Form, Exh. 2 at 4 (“The Class Representatives 

will request the Court to approve a service award of $5,000.00 to 

be paid to each of them to be paid from the Maximum Payout”). See 

also Potashnick Decl. at ¶ 11 (referring to settlement payments 

“providing a fixed amount to all delivery drivers and a 

proportional amount of the remainder to all delivery drivers who 

file timely claims based on the number of deliveries they 

performed”); Forester Decl. at caption (naming incorrect 

defendant). While plaintiffs’ counsel are qualified to represent 

the class, such errors of inattention, if they persist, may cause 

me to revisit my finding that they are adequate representatives of 

the class in this case. 

Rule 23(b)(3): Certification under Rule 23(b)(3) is 

appropriate if the proposed class meets two additional 

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requirements: common questions of law or fact must “predominate 

over any questions affecting only individual members,” and class 

resolution must be “superior to other available methods for fairly 

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 

23(b)(3). The predominance inquiry tests whether the proposed 

class is “sufficiently cohesive to warrant adjudication by 

representation.” Amchem, 521 U.S. at 623. “[A] common question 

predominates over individual claims if ‘a failure of proof on the 

[common question] would end the case’ and the whole class ‘will 

prevail or fail in unison.’” Bell v. PNC Bank, Nat. Ass’n, 800 

F.3d 360, 378 (7th Cir. 2015) (quoting Amgen Inc. v. Connecticut 

Ret. Plans & Tr. Funds, 568 U.S. 455, 460 (2013)). The common 

question that predominates in this case is whether defendants had 

a practice of misclassifying the technicians who performed 

services for them as independent contractors. If this question 

were tried, a negative answer would eviscerate the class claims, 

while an affirmative answer would entitle each class member to 

relief in an individualized amount that can be—and, indeed, has 

been—calculated based on defendants’ records. 

The superiority requirement is also satisfied. The parties 

have provided information concerning the amount to which each class 

member will be entitled under the settlement (more on that issue 

shortly). While some class members have damages claims valued in 

the thousands of dollars, many are closer to $100. While that is 

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more than a nominal recovery to be sure, it is substantially less 

than the expenses any class member would likely incur to litigate 

his or her claim on an individual basis. See Butler v. Am. Cable 

& Tel., LLC, No. 09 CV 5336, 2011 WL 4729789, at *7 (N.D. Ill. 

Oct. 6, 2011) (superiority requirement met where “the cost of 

litigation would likely outweigh the benefit” of pursuing claims 

individually). 

B. Preliminary Settlement Approval 

“Federal courts naturally favor the settlement of class 

action litigation,” Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 

1996), as settlement “minimizes the litigation expenses of both 

parties and also reduces the strain such litigation imposes upon 

already scarce judicial resources.” In re AT & T Mobility Wireless 

Data Servs. Sales Litig., 270 F.R.D. 330, 345 (N.D. Ill. 2010) 

(citations omitted). Nevertheless, class settlements require close 

judicial supervision to ensure that the settlement is “fair, 

adequate, and reasonable, and not a product of collusion.” Reynolds 

v. Beneficial Nat. Bank, 288 F.3d 277, 279 (7th Cir. 2002). See 

also Culver v. City of Milwaukee, 277 F.3d 908, 910 (7th Cir. 2002) 

(courts must be attentive to “the danger that the [class] lawyer 

will sell out the class in exchange for the defendant’s tacit 

agreement not to challenge the lawyer’s fee request”) (citing 

cases). Indeed, the Seventh Circuit has “gone so far as to term 

the district judge in the settlement phase of a class action suit 

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a fiduciary of the class, who is subject therefore to the high 

duty of care that the law requires of fiduciaries.” Reynolds, 288 

F.3d at 279. 

In weighing whether to grant preliminary approval of a 

proposed settlement, “courts must consider: (1) the strength of 

plaintiffs’ case compared to the terms of the proposed settlement; 

(2) the likely complexity, length and expense of continued 

litigation; (3) the amount of opposition to settlement among 

[a]ffected parties; (4) the opinion of competent counsel; and (5) 

the stage of the proceedings and the amount of discovery 

completed.” In re AT & T Mobility Wireless, 270 F.R.D. at 346 

(citing Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 

646, 653 (7th Cir. 2006)). While plaintiffs’ discussion of factors 

2, 3, and 5 supports their motion for preliminary approval, the 

record raises red flags with respect to factors 1 and 4. 

The first factor is the “most important factor relevant to 

the fairness of a class action settlement.” Synfuel Techs., 463 

F.3d at 653 (internal quotation marks and citation omitted). To 

balance the strength of the plaintiffs’ case against the amount 

offered in a proposed settlement, courts “should begin by 

‘quantify[ing] the net expected value of continued litigation to 

the class.’” Id. (quoting Reynolds, 288 F.3d at 284–85) (alteration 

in Synfuel). Here, plaintiffs assert that the class claims are 

“supported by substantial evidence,” which I assume refers to the 

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“WhatsApp logs, emails, text messages and other communications 

showing treatment of the Technicians” they reference elsewhere in 

their motion. Against the strength of this evidence, however, 

plaintiffs acknowledge that defendants raise non-frivolous 

defenses; recognize the inherent uncertainties of trial and the 

expense of continued litigation; and perceive the benefits of 

compromise. So far so good. 

Where things go awry is in plaintiffs’ valuation of the class 

claims in comparison with the value of the proposed settlement. 

Plaintiffs state that “[g]oing into mediation, Plaintiffs’ counsel 

calculated $368,375.00 in actual overtime pay damages” for the 

class. Mot. at 15. By plaintiffs’ account, this means that 

“[p]laintiffs achieved a gross settlement amount equal to about 

109% of actual damages”—a figure they presumably base on the Total 

Settlement Amount of $400,000. But the Total Settlement Amount 

“has barely any connection to the settlement’s value to the class.” 

Pearson v. NBTY, Inc., 772 F.3d 778, 781 (7th Cir. 2014). Indeed, 

the gross settlement amount of $400,000 includes not only the 

damages payable to the class, but also attorneys’ fees, litigation 

costs, and administrative expenses. Accordingly, plaintiffs’ claim 

to have obtained a triumphant “109% of actual damages” is 

misleading, as the amounts they compare shed little light on 

whether the settlement offers fair and adequate compensation to 

the class members. 

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Moreover, while the settlement purports to provide $225,000 

in class damages, this provision, too, is misleading, as the 

settlement agreement also includes a provision that, as I read it, 

caps defendants’ actual damages exposure at only 45% of that 

amount, or $101,250. See Settlement Release Agreement, Exh. 1 at 

§ 2.1(A)(1) (allocating “$225,000 as and for damages”); but see

id. at § 2.1(E) (“the maximum damages claim rate shall be 45% .... 

If more than 45% of damages are claimed, then each claimant’s share 

of the damages shall be proportionately reduced so that the total 

damages claimed are equal to 45% of the damages available for 

claims.”). Accordingly, the maximum amount actually available to 

the class as damages is just $101,250, or about 27.5% of the actual 

overtime damages that plaintiffs’ counsel assessed as owing based 

on defendants’ records. That is a far cry from the 109% that 

plaintiffs’ counsel claim, and lower than all but the very lowest 

end of the range of percentages deemed adequate in the cases they 

cite. See Mot. at 15 (citing Jimenez v. Pizzerias, LLC, 2017 U.S. 

Dist. LEXIS 129820, *10-11 (S.D. Fla. Aug. 14) (approving 

settlement equal to 2/3rds of actual damages); Selk v. Pioneers 

Mem. Healthcare Dist., 159 F. Supp. 3d 1164, 1172 (S.D. Cal. 2016) 

(approving settlement fund amounting to 26% to 50% of maximum 

recovery); Jones v. Agilysis, Inc., 2014 U.S. Dist. LEXIS 68562, 

*9-10 (N.D. Cal. May 19, 2014) (approving “non-reversionary 

settlement constitut[ing] between 30% to 60% of recoverable 

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damages”); Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 

11149, *9-10 (N.D. Cal. Feb. 2, 2009) (approving settlement of “at 

least 50% of the damages Class Members could seek”). 

The attorneys’ fees provided in the proposed settlement are 

inappropriate for similar reasons. The settlement allocates 

$160,000, or 40% of the $400,000 Total Settlement Amount, to 

attorneys’ fees. Yet, “[t]he law is clear that fees paid to lead 

and additional class counsel are not considered a ‘value’ to the 

class, as counsel should well know.” Kaufman v. Am. Express Travel 

Related Servs., Co., No. 07-CV-1707, 2016 WL 806546, at *11 (N.D. 

Ill. Mar. 2, 2016) (citing Pearson 772 F.3d at 781), aff’d sub 

nom. Kaufman v. Am. Express Travel Related Servs. Co., Inc., 877 

F.3d 276 (7th Cir. 2017). Accordingly, when attorneys’ fees are 

calculated as a percentage of the recovery obtained through a class 

settlement, “the Court must deduct costs that do not directly 

benefit the class from the settlement amount when determining the 

reasonableness of the fee.” Leung v. XPO Logistics, Inc., 326 

F.R.D. 185, 199 (N.D. Ill. 2018). As noted above, the maximum value 

of the proposed settlement to the class appears to be $101,250—

less than the $160,000 it allocates to its attorneys. See

Settlement Release Agreement at § 2.1(A)(3). Counsel offer no 

justification or authority for an award of attorneys’ fees in 

excess of the total recovery available to the class. 

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 I also have serious reservations about the proposed claims 

process, as well as about the manner in which payments are 

calculated and distributed. In particular, I am concerned that the 

parties’ agreement requires class members to submit claim forms to 

obtain any recovery at all. Although “there is nothing inherently 

suspect about requiring class members to submit claim forms in 

order to receive payment, Schulte v. Fifth Third Bank, 805 F. Supp. 

2d 560, 593 (N.D. Ill. 2011), it is hard to see the purpose of 

such forms in this case (if not to reduce the likely number of 

claims), since both sides appear to know exactly who is in the 

seventy-five-member class and how many hours of unpaid overtime 

each class member worked. This is not a case in which class members 

number in the hundreds of thousands or millions and may have 

different types of claims or no claim at all. Cf. e.g., In re 

WorldCom, Inc. Sec. Litig., No. 02 CIV 3288(DLC), 2004 WL 2591402, 

at *12 (S.D.N.Y. Nov. 12, 2004) (claim form required of class 

members was “necessary in order for a fair distribution of the 

settlement proceeds,” since “merely holding securities” did not 

entitle notice recipients to payment). 

 It is true that individuals wishing to be part of the FLSA 

collective must opt in to participate in the settlement of the 

federal claim, while those wishing to be part of a Rule 23 class 

will be deemed to participate in the settlement of their state 

claim unless they opt out. See 29 U.S.C.A. § 216 (“No employee 

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shall be a party plaintiff to [an FLSA] action unless he gives his 

consent in writing to become such a party and such consent is filed 

in the court in which such action is brought.”) But it does not 

follow that the affirmative act of returning a claim form is 

required to receive any payment at all. Instead, the notice sent 

to the individuals the parties have identified as eligible to 

assert federal and state claims can inform them that they have 

“two binary choices: (1) decide whether to opt in and participate 

in the federal action; (2) decide whether to opt out and not 

participate in the state-law claims.” Ervin v. OS Rest. Servs., 

Inc., 632 F.3d 971, 978 (7th Cir. 2011). The notice can inform 

them, for example, that if they take no action by a certain date, 

they will be deemed to have elected to participate only in the 

relevant state settlement and will: a) receive payment in an amount 

the parties have negotiated based on the worker’s unpaid hours 

(which will be identified in the notice); and b) release only state 

claims arising out of the challenged practice. Alternatively, the 

notice could inform them, they may opt in to the FLSA settlement 

by returning a claim form, in which they may also elect to opt out

of the state settlement, and can identify the specific payment 

amount each option entails, as well as the scope of the 

corresponding release.1 Such a claims procedure strikes me as no 

1 Naturally, defendants wish for the broadest possible release at 

the lowest possible cost, while plaintiffs wish for the greatest 

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more complex or difficult to administer than the proposed 

settlement agreement’s sliding scale based on claim rates. 

Moreover, the sliding scale itself reinforces my sense that 

the claims process is designed to discourage, rather than 

encourage, the filing of claims. Unlike in Schulte, where the fact 

that the defendant’s “total monetary payment to the settlement 

fund” was the same regardless of the claim rate, the distribution 

structure of the proposed settlement, coupled with the requirement 

that individuals who wish to participate only in the Rule 23 class 

must nevertheless return a claim form to obtain payment, raises 

“concerns that the claims process is designed to limit the ‘take 

rate’ of the Class Members.” Schulte 805 F. Supp. 2d at 591. 

Solidifying this impression is that the proposed settlement 

provides that any unclaimed damages revert to defendants. See 

Kolinek v. Walgreen Co., 311 F.R.D. 483, 499 (N.D. Ill. 2015) (“A 

cumbersome claims process is particularly suspect in the case of 

a reversionary settlement, that is, a settlement under which the 

defendant recaptures unclaimed funds”) (citing Schulte 2010 WL 

possible recovery for the least possible cost. Nothing prevents 

the parties from negotiating differentiated payments to offer 

greater recovery to plaintiffs willing to settle all claims in 

return for a broad release and lesser recovery to plaintiffs who, 

either by taking no action or by indicating their desire to opt 

out of the state settlement, preserve one of their claims. Of 

course, an individual who both expresses an intent to opt out of 

the state settlement and declines to indicate an intent to opt in

to the federal settlement will preserve both claims and will be 

entitled to no payment. 

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8816289, at *5 and Pearson, 772 F.3d at 783. Indeed, the Seventh 

Circuit instructs that “[m]oney not claimed by class members should 

be used for the class’s benefit to the extent that is feasible, 

Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 689 (7th Cir. 2013), 

and nothing in the parties’ submissions suggests that it is 

infeasible to do so here. 

For the foregoing reasons, plaintiffs’ consent motion is 

granted as to class certification but is denied as to approval of 

the collective action settlement; denied as to preliminary 

approval of the class settlement; denied as to approval of notice; 

and denied as to the request for hearing. 

 ENTER ORDER:

 

_____________________________ 

 Elaine E. Bucklo

 United States District Judge 

Dated: September 10, 2021 

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