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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JEROME A. JOHNSON, ET AL,

Plaintiffs,

v.

HOME DEPOT U.S.A., INC.,

Defendant.

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Civil Action No. 3:11-cv-03561-PGSTJB 

JOINT MOTION FOR APPROVAL OF 

SETTLEMENT AGREEMENT

JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT

Named plaintiffs Christopher Akeret, Edwin Bermudez, Shantel Daniels, 

Joseph G. Fahey, Gayle Franks, Richard Scholz, and Ronald J. Kline (collectively 

“plaintiffs”) and defendant Home Depot U.S.A., Inc. hereby request approval of 

their Settlement Agreement under the Fair Labor Standards Act (“FLSA”). Since 

this is a settlement of FLSA claims, the settlement must be approved by the Court. 

Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353-55 (11th Cir. 1982) 

(citing 29 U.S.C. § 216(b); Bredbenner v. Liberty Travel, Inc., Nos. 09-905 (MF), 

09-1248 (MF), 09-4587 (MF), 2011 WL 1344745, at *18 (D.N.J. Apr. 8, 2011) 

(court serves as a “gatekeeper” in scrutinizing FLSA settlements for fairness). To 

ensure their settlement is enforceable, the parties jointly present the Agreement for 

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the Court’s review and approval; however, to preserve the confidentiality of the 

terms of the Agreement, Home Depot will submit the Agreement separately for the 

Court’s in camera review. 

I. BACKGROUND

Plaintiffs are current and former Home Depot assistant store managers who 

filed consents to join in Aquilino v. Home Depot U.S.A., Inc., No. 04-cv-04100 

(D.N.J.), an FLSA collective action filed in this Court. On February 15, 2011, the 

Court decertified Aquilino, which had previously been conditionally certified as a 

collective action. 2011 WL 564039, at *1, *12.

In June 2011, plaintiffs’ counsel filed the instant action on behalf of 75 

named plaintiffs,1alleging that Home Depot improperly classified them as exempt 

from the FLSA and in some instances state overtime requirements.2 (Dkt. 1.) 

Home Depot denied that the plaintiffs were improperly classified. (Dkt. 13, 40.) 

During this litigation and Aquilino, the parties engaged in substantial discovery and 

legal argument. 

In September 2013, the parties participated in a mediation facilitated by 

Mark S. Rudy, an experienced and highly regarded class action mediator and made 

 

1

 Seven plaintiffs remain (Akeret, Bermudez, Daniels, Fahey, Franks, Scholz, and 

Kline). All other plaintiffs have been dismissed. 

2

 The operative pleading is the Second Amended Complaint. (Dkt. 39.) Because 

this is not a Rule 23 class action, there is no requirement that the Court approve 

settlement of the state law claims.

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substantial progress. The parties reached a settlement agreement on December 16, 

2013 with the ongoing assistance of Mr. Rudy. On December 30, 2013, the Court 

dismissed this action, but provided that the parties may reopen the case within 90 

days to seek approval of the parties’ settlement agreement. (Dkt. 114.) The parties 

have finalized and executed a Settlement Agreement, which is being submitted to 

the Court separately for in camera review. 

The Agreement resolves all asserted federal and state law claims and other 

claims that could have been made relating to the alleged misclassification of 

plaintiffs through the date plaintiffs executed the Agreement.

II. THE COURT SHOULD APPROVE THE PARTIES’ SETTLEMENT.

A district court may approve an FLSA settlement between private litigants 

where it reflects “a fair and reasonable resolution of [a] bona fide dispute.” 

Morales v. PepsiCo, Inc, No. 11-6275 (AET), 2012 WL 870752, at *1 (D.N.J. Mar. 

14, 2012) (quotations omitted). In reviewing FLSA settlements, the court serves as 

“gatekeeper,” Bredbenner, 2011 WL 1344745, at *18, and upholds the Third 

Circuit’s “strong presumption in favor of settlement,” see Morales, 2012 WL 

870752, at *1 (citing Farris v. J.C. Penney, Inc., 176 F.3d 706, 711 (3d Cir. 1999)), 

while ensuring that the parties are not sidestepping the requirements of the FLSA. 

Bredbenner, 2011 WL 1344745, at *18. Courts find little question over the 

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existence of a bona fide dispute where “federal court litigation followed aggressive 

prosecution and strenuous defense.” Id. 

The settlement here is a fair and reasonable resolution of a bona fide dispute. 

The settlement follows contested litigation conducted by experienced counsel. The 

parties engaged in significant discovery, defendant filed two motions for summary 

judgment, which were withdrawn without prejudice to refile pending mediation, 

and the parties engaged in settlement negotiations conducted at arm’s length and 

facilitated by an experienced mediator. In reaching agreement, the parties have 

taken into account the uncertainty and risks in litigation and the costs that each 

party will incur if litigation continues, including multiple jury trials. The parties 

have fully evaluated the likelihood of prevailing on the merits of their claims and 

defenses including the proper method for calculating unpaid overtime in the event 

that one or more plaintiffs prevail on their claims and have concluded it is in their 

mutual interest to resolve the litigation in the manner set forth in the Settlement 

Agreement. 

Plaintiffs have fully considered the potential value of their misclassification 

claims and concluded that the proposed settlement provides a fair and reasonable 

resolution of their claims. Home Depot supports this result since it eliminates the 

uncertainties, risks, and cost of further litigation, including multiple jury trials and 

possible appeals. 

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III. CONCLUSION

For the foregoing reasons, the parties jointly request that the Court enter an 

order approving their Settlement Agreement and dismissing plaintiffs’ claims with 

prejudice. 

Respectfully submitted,

Dated: February 28, 2014 /s/ Patrick G. Brady

Patrick G. Brady

Epstein Becker & Green P.C.

One Gateway Center

Newark, New Jersey 07102

(973) 642-1900 (telephone)

(973) 639-8556 (facsimile)

pbrady@ebglaw.com

Joel M. Cohn (admitted pro hac vice)

Juliet E. Gray (admitted pro hac vice)

Akin Gump Strauss Hauer & Feld LLP

1333 New Hampshire Avenue, NW

Washington, D.C. 20036-1564

(202) 887-4000 (telephone)

(202) 887-4288 (facsimile)

jcohn@akingump.com

jegray@akingump.com

Attorneys for defendant Home Depot U.S.A., Inc.

Dated: February 28, 2014 /s/ Caitlin Duffy

Olimpio Lee Squitieri

Caitlin Duffy

SQUITIERI & FEARON, LLP

2600 Kennedy Boulevard, Suite 1K

Jersey City, New Jersey 07306

Tel: 201.200.0900

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Fax: 201.200.9008

-and32 East 57th Street

12th Floor

New York, New York 10022

Tel: 212-421-6492

Fax: 212-421-6553

Email: lee@sfclasslaw.com

Email: Caitlin@sfclasslaw.com

Attorneys for plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on February 28, 2014, a true and correct copy of the 

foregoing Joint Motion for Approval of Settlement Agreement was served via ECF 

to:

Olimpio Lee Squitieri

Caitlin Duffy

SQUITIERI & FEARON LLP

32 East 57th Street

12th Floor

New York, NY 10022

/s/ Patrick G. Brady

Patrick G. Brady

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