TYHEE HICKMAN,SHANAY BOLDEN,and Civil Action No. 2:17-cv ... · 2/10/2020 · FOREMAN, HERSCHEL...

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

TYHEE HICKMAN, SHANAY BOLDEN, and O’DONALD HENRY, individually and on behalf of all persons similarly situated,

Plaintiffs,

v.

TL TRANSPORTATION, LLC, SCOTTFOREMAN, HERSCHEL LOWE, AMAZON.COM, LLC, and AMAZON LOGISTICS, INC.,

Defendants.

:::::::::::::::

Civil Action No. 2:17-cv-01038-GAM

Class and Collective Action

PLAINTIFFS’ UNOPPOSED MOTION FORFINAL APPROVAL OF THE SETTLEMENT AGREEMENT

Plaintiffs Tyhee Hickman, Shanay Bolden, and O’Donald Henry, through their

undersigned counsel, respectfully moves this Court for an Order:

1. Granting final approval of the Parties’ Settlement Agreement (Dkt. No. 125-2);

2. For settlement purposes, finally certifying the FLSA claims pursuant to 29 U.S.C.

§ 216(b) and the state law claims as a Fed. R. Civ. P. 23 class on behalf of the Settlement Class;

3. Finally approving Plaintiffs Tyhee Hickman, Shanay Bolden and O’Donald Henry

as the Representatives of the Settlement Class and approving the service awards for their service

to the Settlement Class and in exchange for their additional released claims in favor of Defendants,

in the following amounts: $15,000 to Plaintiff Tyhee Hickman, $15,000 to Plaintiff Shanay

Bolden, and $2,500 to Plaintiff O’Donald Henry.

4. Finally approving Berger Montague PC and Willig, Williams, & Davidson as Class

Counsel for the Settlement Class;

Case 2:17-cv-01038-GAM Document 129 Filed 02/10/20 of 3

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5. Finally approving Class Counsel’s attorneys’ fees in the amount of $600,000.00

and costs in the amount not to exceed $40,000;

6. Finally approving the Angeion Group as Settlement Administrator and finally

approving the costs of claims administration not to exceed $25,000;

7. Finally approving Philadelphia Legal Assistance as the cy pres recipient;

8. Dismissing this class and collective action with prejudice.

This Motion is based on the accompanying Memorandum of Law, the Declaration of Sarah

Schalman-Bergen in Support of the Plaintiffs’ Unopposed Motion for Final Approval of the

Settlement Agreement, and all other records, pleadings and papers on file in this action. Pursuant

to the terms of the Settlement Agreement, Defendants do not oppose this Motion.

A proposed Final Order is submitted for the Court’s consideration.

Dated: February 10, 2020 Respectfully submitted,

s/ Sarah Schalman-BergenSarah R. Schalman-Bergen Camille Fundora RodriguezBERGER MONTAGUE PC1818 Market Street, Suite 3600Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 Email: [email protected]

[email protected]

Ryan Allen Hancock WILLIG, WILLIAMS & DAVIDSON1845 Walnut Street, 24th FloorPhiladelphia, PA 19103Telephone: (215) 656-3679Facsimile: (215) 561-5135Email: [email protected]

Attorneys for the Plaintiffs and the Settlement Class


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing was served

upon all counsel of record through the Court’s ECF system this 10th day of February, 2020.

s/ Sarah Schalman-BergenSarah Schalman-Bergen




Plaintiffs,

v.


Defendants.

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[PROPOSED] ORDER GRANTING FINAL APPROVAL OF THE SETTLEMENT AGREEMENT

AND NOW, this ______ day of ______________, 2020, upon consideration of Plaintiffs’

Unopposed Motion for Final Approval of the Settlement, the Court grants the Motion and

ORDERS as follows:

1. The Parties’ Settlement Agreement is finally approved as fair, reasonable and

adequate pursuant to Fed. R. Civ. P. 23(e), and a fair and reasonable resolution of a bona fide

dispute under the Fair Labor Standards Act;

2. For settlement purposes, the Court finally certifies the following Settlement Class

as a collective pursuant to 29 U.S.C. § 216(b):

All current and former Delivery Associates who were employed by TL Transportation, LLC to deliver packages to Amazon customers in the United States between March 8, 2014 and April 15, 2017.

3. For settlement purposes, the Court finally certifies the following Settlement Class

pursuant to Fed. R. Civ. P. 23(a) and (b)(3):

Case 2:17-cv-01038-GAM Document 129-1 Filed 02/10/20 Page 1 of 3

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All current and former Delivery Associates who were employed by TL Transportation, LLC to deliver packages to Amazon customers in Pennsylvania, Maryland and New Jersey between March 8, 2014 and April 15, 2017.

4. For settlement purposes, the Court finds that the requisites for establishing class

certification pursuant to Fed. R. Civ. P. 23(a) and (b)(3) with respect to the Settlement Class

Members have been and are met, with respect to numerosity, commonality, typicality, and

adequacy, and finds that questions of law or fact common to class members predominate over any

questions affecting only individual members, and a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy. The Court further finds that the

proposed Settlement Class is similarly situated such that certification of a collective is appropriate

under 29 U.S.C. § 216(b).

5. Plaintiffs Tyhee Hickman, Shanay Bolden, and O’Donald Henry are finally

approved as Representatives of the Settlement Class, and the proposed service awards in the

amount of $15,000 to Plaintiff Tyhee Hickman, $15,000 to Plaintiff Shanay Bolden, and $2,500

to Plaintiff O’Donald Henry for their service to the Class and in exchange for their additional

released claims in favor of Defendants are approved;

6. The Angeion Group is finally approved as Settlement Administrator and the costs

of settlement administration are approved not to exceed $25,000;

7. Berger Montague PC and Willig, Williams, & Davidson are finally approved as

Class Counsel for the Settlement Class;

8. Plaintiffs’ Unopposed Motion for Approval of Attorneys’ Fees and Costs (Dkt. No.

128) is granted, and payment of attorneys’ fees in the amount of $600,000.00 and costs in the

amount not to exceed $40,000.00 are finally approved;

9. Philadelphia Legal Assistance is finally approved as the cy pres recipient;


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10. Kenneth D. Flick, who filed a valid and timely request for exclusion, is hereby

excluded from the Settlement and is not bound by this Final Approval Order;

11. The Court hereby enters final judgment in this case and dismisses it with prejudice

in accordance with the terms of the Settlement Agreement. There being no reason to delay entry

of this Final Judgment, the Clerk of the Court is ordered to enter this Final Judgment forthwith

pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

12. Without affecting the finality of this Final Judgment in any way, the Court reserves

exclusive and continuing jurisdiction over this action, the named Plaintiffs, the certified classes,

and Defendants for purposes of supervising the implementation and enforcement of the Settlement

Agreement, this Order, and all settlement administration matters.

BY THE COURT,

Honorable Gerald A. McHughUnited States District Judge




Plaintiffs,

v.


Defendants.

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL

APPROVAL OF THE SETTLEMENT AGREEMENT


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TABLE OF CONTENTS

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

II. PROCEDURAL HISTORY................................................................................................ 5

A. The Notice Provisions in the Settlement Agreement Have Been Satisfied ............ 5

B. Response from Class Members............................................................................... 6

III. ARGUMENT...................................................................................................................... 7

A. Applicable Legal Standard For Final Approval of Class Action Settlement Pursuant to Fed. R. Civ. P. 23................................................................................. 7

B. Applicable Legal Standard For Final Approval of Collective Action Settlement Pursuant to 29 U.S.C. § 216(b) ............................................................................... 9

C. The Settlement Satisfies the Relevant Criteria for Approval................................ 11

1. The Proposed Settlement Terms Are Fair, Reasonable and Adequate in Light of the Complexity, Expense and Likely Duration of the Litigation, the Risks of Establishing Liability and Damages and of Maintaining the Class Action Through Trial in this Bona Fide Dispute ............................ 11

2. The Lawsuit is at an Appropriate Stage of the Proceedings for Settlement................................................................................................................... 18

3. The Opinion of Experienced Counsel Supports Approval of the Settlement, Which Resulted from Arm’s-length Negotiations By Informed and Experienced Counsel.......................................................................... 21

4. The Settlement Class’ Response Supports the Settlement........................ 22

D. The Proposed Settlement Furthers the Purpose of the FLSA ............................... 23

E. The Court Should Finally Certify the Settlement Class Under 29 U.S.C. § 216(b)............................................................................................................................... 24

F. The Court Should Finally Certify the Settlement Class Under Fed. R. Civ. P.23(a) and 23(b)...................................................................................................... 25

1. The Settlement Class Is Sufficiently Numerous ....................................... 26

2. The Settlement Class Seeks Resolution of Common Questions............... 27

3. The Named Plaintiffs’ Claims Are Typical Of the Settlement Class ....... 27


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4. Class Counsel And Plaintiff Meet The Adequacy Requirements Of The Settlement Class........................................................................................ 28

5. The Settlement Class Satisfies the Predominance and Superiority Requirements of Fed. R. Civ. P. 23(b)(3) ................................................. 28

G. The Notice Provisions Were Followed and Provided Adequate Notice To The Class that Satisfies Due Process ........................................................................... 30

H. The Proposed Cy Pres Beneficiary Should be Approved..................................... 31

I. The Service Awards To Named Plaintiffs Are Justified and Should Be Approved............................................................................................................................... 32

IV. CONCLUSION................................................................................................................. 36


iii

TABLE OF AUTHORITIES

Cases Page(s)

Altnor v. Preferred Freezer Servs. Inc., 197 F. Supp. 3d 746 (E.D. Pa. 2016) .................. 9, 10, 23

Anchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997).................................................................. 29

Baby Neal ex Rel. Kanter v. Casey, 43 F. 3d 48 (3d Cir. 1994) ................................................... 25

Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981) .......................................... 10

Bell Atl. Corp. v. Bolger, 2 F. 3d 1304 (3d Cir. 1993)............................................................ 19, 22

Boone v. City of Phila., 668 F. Supp. 2d 693 (E.D. Pa. 2009)...................................................... 19

Bozak v. FedEx Ground Package Sys., Inc., No. 11-Civ. 738, 2014 WL 3778211 (D. Conn. July 31, 2014) ............................................................................................................................. 16, 30

Bredbenner v. Liberty Travel, Inc., No. 09-cv-905, 2011 WL 1344745 (D.N.J. Apr. 8, 2011) ... 35

Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 (1945) .................................................................... 23

Brown v. TrueBlue, Inc., No. 1:10-cv-00514, 2013 WL 5408575 (M.D. Pa. Sept. 25, 2013) ..... 23

Chemi v. Champion Mortg., No. 2:05-cv-1238 (WHW), 2009 WL 1470429 (D.N.J. May 26, 2009) ................................................................................................................................... 15, 28

City of Detroit v. Grinnell Corp., 356 F. Supp. 1380 (S.D.N.Y.1972)........................................... 7

Craig v. Rite Aid Corp., No. 4:08-cv-2317, 2013 WL 84928 (M.D. Pa. Jan. 7, 2013) ................ 34

Cullen v. Whitman Med. Corp., 197 F.R.D. 136 (E.D. Pa. 2000) .......................................... 19, 33

Cuttic v. Crozer-Chester Med. Ctr., 868 F. Supp. 2d 464 (E.D. Pa. 2012) .................................... 9

Deitz v. Budget Renovations & Roofing, Inc., No. 4:12-cv-0718, 2013 WL 2338496 (M.D. Pa. May 29, 2013)........................................................................................................................... 18

Ehrheart v. Verizon Wireless, 609 F. 3d (3d Cir. 2010) ................................................................ 8

Eichenholtz v. Brennan, 52 F.3d 478 (3d Cir. 1995) ...................................................................... 7

Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461 (E.D. Pa. 2000) ........................................ 26, 27, 28

Galt v. Eagleville Hosp., 310 F. Supp. 3d 483 (E.D. Pa. 2018) ............................................ passim

General Tel. Co. of S.W. v. Falcon, 457 U.S. 147 (1982) ............................................................ 27


iv

Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975)........................................................................... 8, 10

Godshall v Franklin Mint Co., No. 01-cv-6539, 2004 WL 2745890 (E.D. Pa. Dec. 1, 2004)..... 35

In re Baby Products Antitrust Litig., 708 F. 3d 163 (3d Cir. 2013).......................................... 8, 31

In re CertainTeed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468 (E.D. Pa. 2010).... 8

In re CertainTeed Fiber Cement Siding Litig., 303 F.R.D. 199 (E.D. Pa. 2014) ....... 14, 18, 22, 29

In re Chickie’s & Pete’s Wage & Hour Litig., No. 12-6820, 2014 WL 911718 (E.D. Pa. Mar. 7, 2014) ..................................................................................................................................... 9, 10

In re Constar Int'l, Inc. Sec. Litig., 585 F.3d 774 (3d Cir. 2009) ................................................. 26

In re General Motors Corp. PickUp Truck Fuel Tank Prod. Liability Litig., 55 F. 3d 768 (3d Cir. 1995) ......................................................................................................................... 8, 11, 14, 22

In re Google Inc. Cookie Placement Privacy Litig., 934 F. 3d 316 (3d Cir. 2019)............ 8, 31, 32

In re Ins. Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009)................................................. 7

In re Janney Montgomery Scott LLC Fin. Consultant Litig., No. 06-3202, 2009 WL 2137224 (E.D. Pa. July 16, 2009)...................................................................................................... 18, 35

In re Nat’l Football League Players Concussion Injury Litig., 821 F. 3d 410 (3d Cir. 2016). 8, 21

In re Processed Egg Products Antitrust Litig., 284 F.R.D. 249 (E.D. Pa. 2012) ................... 22, 28

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998) 21

In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. Dec. 22, 2003)................................. 22

In re Royal Dutch/Shell Transport Secs. Litig., No. 04-374 (JAP), 2008 WL 9447623 (D.N.J. Dec. 9, 2008)............................................................................................................................. 16

In re Warfarin Sodium Antitrust Litig., 391 F. 3d 516 (3d Cir. 2004)........................ 11, 20, 23, 25

Kauffman v. U-Haul Int’l Inc., No. 5:16-cv-04580, 2019 WL 1785453 (E.D. Pa. Apr. 24, 2019)................................................................................................................................................... 10

Knepper v. Rite Aid Corp., 675 F.3d 249 (3d Cir. 2012).............................................................. 29

Lalli v. Gen. Nutrition Ctrs., Inc., 814 F. 3d 1 (1st Cir. 2016) ..................................................... 14

Lovett v. Connect America.com, No. 14-2569, 2015 WL 5334261 (E.D. Pa. Sept. 14, 2015)..... 24

Lynn’s Food Stores. Inc. v. U.S., 679 F.2d 1350 (11th Cir. 1982) ................................................. 9


v

Maddy v. Gen. Elect. Co., No. 14-490-JBS-KMW, 2017 WL 2780741 (D.N.J. June 26, 2017) ........................................................................................................ 10, 18

McDonough v. Toys R Us, Inc., 80 F. Supp. 3d 626 (E.D. Pa. 2015)........................................... 15

Mehling v. N.Y. Life Ins. Co., 248 F.R.D. 455 (E.D. Pa. 2006) .................................................... 15

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)............................................. 30

Mulroy v. Nat’l Water Main Cleaning Co. of N.J., No. 12-3669 (WJM)(MF), 2014 WL 7051778 (D.N.J. Dec. 12, 2014) .......................................................................................................... 9, 18

Mumby v. Pure energy Servs. (USA), Inc., 636 F. 3d 1266 (10th Cir. 2011) ............................... 14

Nichols v. Smithkline Beecham Corp., No. 00-6222, 2005 WL 950616 (E.D. Pa. April 22, 2005)................................................................................................................................................... 15

Perry v. FleetBoston Fin. Corp, 229 F.R.D. 105 (E.D. Pa. 2005)................................................ 11

Potoski v. Wyoming Valley Health Care Sys., No. 3:11-cv-00582, 2020 WL 207061 (M.D. Pa. Jan. 14, 2020)............................................................................................................................ 18

Powell v. Carey Int’l, Inc., 514 F. Supp. 2d 1302 (S.D. Fla. 2007).............................................. 14

Rodriguez v. Republic Servs., Inc., No. SA-13-CV-20-XR, 2013 WL 5656129 (W.D. Tex. Oct. 15, 2013) ................................................................................................................................... 14

Sakalas v. Wilkes Barre Hosp. Co., No. 3:11-cv-0546, 2014 WL 1871919 (M.D. Pa. May 8, 2014) ......................................................................................................................................... 35

Sand v. Greenberg, No. 08-cv-7840, 2011 WL 7842602 (S.D.N.Y. Oct. 6, 2011)...................... 34

Singleton v. First Student Mgmt., LLC, No. 13-cv-1744, 2014 WL 3865853 (D.N.J. Aug. 6, 2014) ................................................................................................................................... 10, 24

Sloane v Gulf Interstate Field Servs., No. 4:16-cv-01571, 2017 WL 1105236 (MD. Pa. Mar. 24, 2017) ......................................................................................................................................... 25

Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001)........................................................................ 26

Sullivan v. DB Invs., Inc., 667 F. 3d 273 (3d Cir. 2011)............................................................... 15

Symczyk v. Genesis Healthcare Corp., 656 F. 3d 189 (3d Cir. 2011) .......................................... 23

Tavares v. S-L Distrib. Co., Inc., No. 1:13-cv-1313, 2016 WL 1743268 (M.D. Pa. May 2, 2016)................................................................................................................................................... 35

Tenuto v. Transworld Sys., Inc., No. 99-cv-4228, 2002 WL 188569 (E.D. Pa. Jan. 31, 2002).... 33


vi

Walsh v. Great Atlantic & Pacific Tea Co., 96 F.R.D. 632 (D.N.J. 1983)..................................... 7

Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984) ....................................................................... 25

Young v. Tri Cnty. Sec. Agency, Inc., 13-cv-5971, 2014 WL 1806881 (E. D. Pa. May 7, 2014). 33

Zavala v. Wal Mart Stores, Inc., 691 F.3d 527 (3d Cir. 2012) ..................................................... 24

Statutes

29 U.S.C. § 201............................................................................................................................... 1

29 U.S.C. § 202............................................................................................................................. 23

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

Rules

Fed. R. Civ. P. 23................................................................................................................... passim

Fed. R. Civ. P. 23(a) .............................................................................................................. passim

Fed. R. Civ. P. 23(b) .............................................................................................................. passim

Fed. R. Civ. P. 23(c)(2)(B) ........................................................................................................... 30

Fed. R. Civ. P. 23(e) ........................................................................................................... 7, 10, 31

Regulations

29 C.F.R. § 778.112 ...................................................................................................................... 14

Other Authorities

CONTE & NEWBERG at §§ 8.21 ............................................................................................... 31

MANUAL FOR COMPLEX LITIGATION at §§ 21.311 ........................................................... 31


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I. INTRODUCTION

This class and collective action wage and hour lawsuit against Defendants TL

Transportation, LLC (“TLT”), Scott Foreman (“Foreman”), and Herschel Lowe (“Lowe”)

(collectively, the “TL Defendants”) and Amazon.com, LLC, Amazon Logistics, Inc. (together,

“Amazon”)1 has been settled, and Plaintiffs Tyhee Hickman, Shanay Bolden, and O’Donald Henry

(“Plaintiffs”) respectfully submit this memorandum of law in support of Plaintiffs’ Unopposed

Motion for Final Approval of the Settlement Agreement.2 The Court granted preliminary approval

of this settlement on October 23, 2019 and set a Final Approval Hearing for February 18, 2020.

(Dkt. No. 126.) Now, after Court-approved notice has been sent to Settlement Class Members,3

final approval of this settlement is appropriate.

This lawsuit concerns TL Defendants’ alleged unlawful policy and practice of failing to

pay overtime compensation to Delivery Associates who, until April 15, 2017, were paid pursuant

to a day rate compensation system in violation of the Fair Labor Standards Act, 29 U.S.C. § 201,

et seq. (“FLSA”), and Pennsylvania, Maryland and New Jersey state laws, and whether Amazon

bears legal responsibility for those violations. Ultimately, the Gross Settlement Amount that was

negotiated and agreed upon ($1,800,000.00) represents a compromised resolution on this issue.

The Parties participated in two mediation sessions before Hon. James R. Melinson, Chief

1 All Defendants are collectively referred to herein as “Defendants.”2 A copy of the Settlement Agreement was filed on September 18, 2019 (hereinafter “Settlement Agreement”). (Dkt. No. 125-2.)3 “’Settlement Class’” or “’Settlement Class Member’” means the Named Plaintiffs, all Opt-in Plaintiffs, and all current or former Delivery Associates who were employed by TL Transportation, LLC to deliver packages to Amazon Customers in the United States between March 8, 2014 and April 15, 2017. There are approximately 757 members of the Settlement Class including Plaintiffs.” “’Eligible Class Members’” means all Settlement Class Members who do not file timely and valid exclusion requests from the Settlement.” See Settlement Agreement ¶¶ 23(z), (aa).When the Settlement Agreement was executed, the Parties were under the belief there were 757 Settlement Class Members. However, after the Class List was received, there were 755 Settlement Class Members.


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U.S. Magistrate Judge for the Eastern District of Pennsylvania (Ret.), at JAMS in Philadelphia

on October 17, 2017 and on March 15, 2018, and in one mediation session before Stephen

Sonnenberg, Esq., an experienced mediator, on July 29, 2019. Following the exchange of

substantial informal discovery, extensive arm’s-length settlement negotiations, three mediations,

and extensive litigation, including TLT’s service of offers of judgment upon 185 of the Opt-In

Plaintiffs, the Parties were able to reach a settlement of this matter. The terms of the Parties’

settlement are set forth in the Settlement Agreement (the “Settlement Agreement” or

“Agreement”) filed on September 18, 2019. (Dkt. No. 125-2.)

In summary, the Settlement includes a gross cash payment by TLT of One Million Eight

Hundred Thousand Dollars ($1,800,000) (the “Gross Settlement Amount”). See Settlement

Agreement ¶ 23(o). TLT shall be responsible for the employer’s share of applicable payroll taxes

attributable to the wage portions of the Settlement Awards in addition to the Gross Settlement

Amount. Id. After deducting attorneys’ fees and costs, settlement administration costs, and

service awards to the Named Plaintiffs in the amounts set forth in the Settlement Agreement, and

subject to the Court’s approval, the balance of the funds of $1,102,500 (the “Net Settlement

Amount”) will be apportioned among all Eligible Class Members. Settlement Agreement ¶ 23(r).

Specifically, every Eligible Class Member will receive a pro rata share of the Net

Settlement Amount based on the number of weeks when he or she worked more than four days

per week between March 8, 2014 through April 15, 2017 (the date when TLT changed its pay

policies and practices). The Amount of $100.00 per Eligible Class Member will be deducted from

the Net Settlement Amount prior to the determination of pro rata individual settlement shares

and allocated to each Eligible Class Member so that each Eligible Class Member receives at least

$100.00 in exchange for his or her release of claims in this Settlement Agreement. See Settlement


3

Agreement ¶ 37(a)(b). If the Settlement is approved, Class Counsel estimates that the average

award paid to Settlement Class Members will be approximately $1,460.26. There is no claims

process and a Settlement Class Member need not take any action in order to receive a Settlement

Award. Notably, the Net Settlement Amount represents approximately 157% of Class Counsel’s

calculations of unpaid wages owed using the most favorable assumptions on time worked at a

half time rate. And, none of the funds from the Gross Settlement Amount will revert to

Defendants. Id. at ¶¶ 34(a), 44.

The Settlement is fair, reasonable and extremely beneficial to the members of the

Settlement Class. The Settlement offers the Class significant advantages over continued

prosecution of their claims against Defendants: Members of the Settlement Class will receive

significant financial compensation and will avoid the risks inherent in the continued prosecution

of this case in which Defendants assert various defenses to their liability. In exchange, the

Settlement Agreement contains a release of all FLSA and state wage and hour claims for unpaid

overtime wages and liquidated or other damages from March 8, 2014 through April 15, 2017. Id.

at ¶ 26. No Eligible Class Member shall be deemed to release an FLSA claim unless he/she cashes

his/her Settlement Award check. Id. at ¶ 25.

Consistent with the Order granting preliminary approval, the Court-approved Notice was

mailed to 755 Settlement Class Members listed on the database provided to the Settlement

Administrator pursuant to the terms of the Settlement Agreement and the Court’s Preliminary

Approval Order. See Settlement Agreement ¶ 29(c); Declaration of Brian S. Devery of Angeion

Group (“Devery Decl.”) ¶¶ 6-8.4 In addition the Settlement Administrator emailed the Notice to

4 Although the Settlement Agreement states that there are “approximately 757 members of the Settlement Class,” the final accurate number as provided to the Settlement Administrator and to whom notices were sent was 756. Devery Decl. ¶¶ 7, 14.


4

498 Class Members for whom the class data contained a valid email address. Devery Decl. ¶ 8.

Each Notice advised the Settlement Class Member of the settlement and that they could object to

the settlement or submit a written request for exclusion by February 7, 2020. Id. at Ex. B. As of

the date of this filing, there have been zero objections and only one request for exclusion. See

Id. at ¶ 15; Declaration of Sarah R. Schalman-Bergen (“Schalman-Bergen Decl.”) ¶ 29.

As discussed below, the proposed Settlement Agreement satisfies all of the criteria for final

approval under federal law and is fair, reasonable, and adequate. Accordingly, Plaintiffs request

that the Court issue an order:

1) Granting final approval of the proposed Settlement Agreement;

2) Granting final certification of the Settlement Class as a collective pursuant to 29U.S.C. § 216(b) and granting final certification of the Settlement Class for state lawclaims pursuant to Fed. R. Civ. P. 23(a) and (b)(3);

3) Finally approving Tyhee Hickman, Shanay Bolden and O’Donald Henry as the representatives of the Settlement Class, and approving service awards, in the amount of $15,000.00 to Plaintiff Tyhee Hickman, $15,000.00 to Plaintiff Shanay Bolden, and $2,500.00 to Plaintiff O’Donald Henry for their service to the Settlement Class and in exchange for their additional released claims in favor of Defendants;

4) Finally approving Berger Montague PC and Willig, Williams & Davidson as Class Counsel for the Settlement Class, and approving Class Counsel’s request for attorneys’ fees of $600,000.00 and costs in the amount not to exceed $40,000.005

5) Finally approving Philadelphia Legal Assistance as the cy pres recipient;

6) Approving the Angeion Group as Settlement Administrator and finally approving the costs of settlement administration not to exceed $25,000.00; and

7) Dismissing this class and collective action with prejudice.

Defendants do not oppose this motion, and Plaintiffs have submitted a proposed final

5 Class Counsel filed an Unopposed Motion for Approval of Attorneys’ Fees and Costs on January 10, 2020, which is also scheduled to be heard at the Final Approval Hearing. See Dkt. No. 128.


5

approval order for the Court’s consideration.

II. PROCEDURAL HISTORY

Plaintiffs incorporate by reference the Procedural History and Terms of Settlement

sections set forth in detail in the Memorandum of Law in Support of Plaintiff’s Unopposed

Motion for Preliminary Approval, filed on September 18, 2019. (Dkt. No. 125-1, Sections II, III.)

A. The Notice Provisions in the Settlement Agreement Have Been Satisfied

The Court granted preliminary approval of the Settlement Agreement on October 23, 2019.

(Dkt. No. 126.) Thereafter, the Parties complied with the notice provisions of the Agreement.

Settlement Agreement ¶¶ 29(b)-(g), 30, 31; Devery Decl. ¶¶ 6-8. Specifically, on December 9,

2019, Angeion (“Settlement Administrator” or “Angeion”) mailed the Notice of Settlement

(“Notice”) via First Class mail to 755 Class Members contained in the Class List (provided to

Angeion by Defendants and Class Counsel on December 5, 2019), and also emailed the Notice of

Settlement to the 498 Class Members for whom email addresses were provided. Id. at ¶¶ 7-8. The

Notice advised Settlement Class Members that they would automatically receive a settlement

check if the Court grants final approval of the Settlement Agreement and that they could object or

the settlement or submit a written request for exclusion by February 7, 2020. Id. at Ex. A (copy of

mailed Notice of Settlement) and Ex. B (copy of emailed Notice of Settlement).

During the period from the initial notice through February 5, 2020, 168 Notices were

returned by the USPS as undeliverable. Of those, 30 of the Notices contained a forwarding address

and the Notice was immediately re-mailed. For the 138 Notices returned to Angeion without

forwarding addresses, Angeion performed address verification searches (also referred to as “skip

tracing”) using LexisNexis, a nationally recognized address search firm. Skip tracing utilizes the

Class Member’s name, previous address and Social Security number for locating a current address.

Id. at ¶¶ 9-10. The Class List and database were updated with the new address information and


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Notices were promptly re-mailed to Class Members via U.S. First Class mail at the updated

addresses located via skip tracing. Of all the re-mailed Notices, 10 were returned undeliverable a

second time, and new addresses were located through skip tracing or as provided by counsel, and

the Notices were mailed for a third time. Only one was returned as undeliverable a third time. Id.

at ¶¶ 10-12. Id. Of the 24 undeliverable Notices of which no updated address was located via the

skip trace process or via updates from the Parties, eleven (11) were sent a Notice of Settlement via

email which did not bounce. Thus, the total number of undeliverable Notices, including via email,

is thirteen (13). Id. at ¶ 13.

On February 4, 2020, the Parties agreed to include another Eligible Class Member who

was mistakenly not included in the original Class List. Angeion emailed Notice to this individual

on February 4, 2020 and by mail on February 6, 2020. Id. at ¶ 14.

B. Response from Class Members

The response to the Settlement from Class Members has been overwhelmingly positive.

Class Counsel and Defendants’ Counsel were responsible for receiving objections and the

Settlement Administrator was responsible for receiving requests for exclusion from the Settlement.

Settlement Agreement ¶¶ 30, 31; Schalman-Bergen Decl. ¶ 29. As of the date of this filing, no

Settlement Class Member has objected and only one Class Member has requested to be excluded

from the settlement. Schalman-Bergen ¶ 29; Devery Decl. ¶ 15. As of the date of this filing, there

are 755 Eligible Class Members. Schalman-Bergen Decl. ¶ 12.

Pursuant to the terms of the Settlement Agreement, payment of the settlement awards to

Eligible Class Members will be made within thirty (30) days after the Effective Date or as soon as

reasonably practicable. Settlement Agreement ¶ 42. Settlement checks will be valid and negotiable

for a period of 180 days from the date of their issuance. Id. at ¶ 43. Additionally, any remaining

amounts after the 180-day period will be paid to Philadelphia Legal Assistance, the cy pres


7

recipient designated in the Settlement Agreement, subject to the Court’s approval.6 Id. at ¶ 44. The

Settlement Administrator will also distribute the Settlement Awards and coordinate tax

administration. Schalman-Bergen Decl. ¶ 18; Devery Decl. ¶¶ 2, 16-17. The Settlement

Administrator has agreed to perform administration duties for an amount not to exceed $25,000.00

Devery Decl. ¶ 2; Schalman-Bergen Decl. ¶ 18.

III. ARGUMENT

A. Applicable Legal Standard For Final Approval of Class Action Settlement Pursuant to Fed. R. Civ. P. 23

To grant final approval, the Court must conclude that the proposed settlement is fair,

reasonable and adequate. In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 258 (3d Cir. 2009);

Fed. R. Civ. P. 23(e). Trial courts generally are afforded broad discretion in determining whether

to approve a proposed class action settlement. Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d Cir.

1995). This discretion is conferred in recognition that “[the] evaluation of [a] proposed settlement

in this type of litigation … requires an amalgam of delicate balancing, gross approximations and

rough justice.” City of Detroit v. Grinnell Corp., 356 F. Supp. 1380, 1385 (S.D.N.Y.1972), aff'd

in part and rev'd in part on other grounds, 495 F.2d 448 (2d Cir. 1974). Thus, the Court considers

whether the proposed settlement is within a “range of reasonableness” that experienced attorneys

could accept in light of the relevant risks of the litigation. See Walsh v. Great Atlantic & Pacific

6 In preparing this motion, Class Counsel observed that the Notice distributed to the Settlement Class contained a typo that incorrectly stated, “Uncashed checks from Eligible Class Members who worked outside of Pennsylvania, Maryland, and New Jersey shall be returned to Defendant TLT, and those Eligible Class Members shall not release any claims against Defendants.” Settlement Agreement, Ex. A. However, any uncashed checks from any Eligible Class Member will not revert to Defendants, but rather will be distributed to the cy pres subject to Court approval. Because this Settlement Agreement actually provides for more favorable treatment of the money than this typo stated, and because Settlement Class Members will receive a check regardless of whether they submit a Claim Form, Class Counsel does not believe that the typo implicates any due process concerns or changes whether the settlement should be finally approved.


8

Tea Co., 96 F.R.D. 632, 642 (D.N.J. 1983), aff'd, 726 F.2d 956 (3d Cir. 1983). There is a strong

judicial policy in favor of resolution of litigation before trial, particularly in “class actions and

other complex cases where substantial judicial resources can be conserved by avoiding formal

litigation.” In re CertainTeed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 484 (E.D.

Pa. 2010) (quoting Ehrheart v. Verizon Wireless, 609 F. 3d 595 (3d Cir. 2010)). A settlement is

presumed to be fair if “(1) the negotiations occurred at arms’ length; (2) there was sufficient

discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a

small fraction of the class objected.” In re Google Inc. Cookie Placement Privacy Litig., 934 F. 3d

316, 326 (3d Cir. 2019) (citing In re Nat’l Football League Players Concussion Injury Litig., 821

F. 3d 410, 436 (3d Cir. 2016)).

The Third Circuit has set forth nine factors to be considered when determining whether a

settlement is “fair, reasonable, and adequate.” The elements of this test – known as the “Girsh

factors” are:

(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through trial; (7) the ability of the Defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation …

In re General Motors Corp. PickUp Truck Fuel Tank Prod. Liability Litig., 55 F. 3d 768, 785 (3d

Cir. 1995) (citing Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975) (internal quotations and

punctuation marks omitted). Accord Google, 934 F. 3d at 322 & n.2 (noting that the court must

apply the Girsh factors in determining whether to approve a class action settlement).7

7 In re Baby Products Antitrust Litig., 708 F. 3d 163 (3d Cir. 2013) (reaffirming use of Girshfactors). Notably, “[t]he Girsh factors are a guide and the absence of one or more does not


9

B. Applicable Legal Standard For Final Approval of Collective Action Settlement Pursuant to 29 U.S.C. § 216(b)

This case is also brought pursuant to Section 216(b) of the FLSA. When employees bring

a private action under the FLSA, and present to the district court a proposed settlement pursuant

to Section 216(b) of the FLSA, the district court may enter a stipulated judgment if it determines

that the compromise reached “is a fair and reasonable resolution of a bona fide dispute over FLSA

provisions” rather than “a mere wavier of statutory rights brought about by an employer’s

overreaching.” Cuttic v. Crozer-Chester Med. Ctr., 868 F. Supp. 2d 464, 466 (E.D. Pa. 2012)

(quoting Lynn’s Food Stores. Inc. v. U.S., 679 F.2d 1350, 1354 (11th Cir. 1982)).

“Although the Third Circuit has not yet specifically addressed what factors district courts

should consider in evaluating settlements under the FLSA, district courts in this Circuit have

referred to the considerations set forth in Lynn’s Food Stores,” In re Chickie’s & Pete’s Wage &

Hour Litig., No. 12-6820, 2014 WL 911718, at *2 (E.D. Pa. Mar. 7, 2014) (citations omitted).

Under Lynn’s Food Stores, a district court may find that a proposed settlement resolves a bona

fide dispute when it “reflect[s] a reasonable compromise over issues, such as FLSA coverage or

computation of back wages, that are actually in dispute.” Chickie’s, 2014 WL 911718 at *2 (citing

Lynn’s Food Stores, 679 F. 2d at 1354)). “In essence, for a bona fide dispute to exist, the dispute

must fall within the contours of the FLSA and there must be evidence of the defendant’s intent to

reject or actual rejection of that claim when it is presented.” Altnor v. Preferred Freezer Servs.

Inc., 197 F. Supp. 3d 746, 763 (E.D. Pa. 2016). “Typically, courts regard the adversarial nature of

automatically render the settlement unfair. Rather the Court must look at all the circumstances of the case and determine whether the settlement is within the range of reasonableness. In addition, a district court should consider whether the settlement is proposed by experienced counsel who reached the agreed-upon terms through arms-length bargaining.” Mulroy v. Nat’l Water Main Cleaning Co. of N.J., No. 12-3669 (WJM)(MF), 2014 WL 7051778, at *2 (D.N.J. Dec. 12, 2014) (internal citations omitted).


10

a litigated FLSA case to be an adequate guarantor of fairness.” Kauffman v. U-Haul Int’l Inc., No.

5:16-cv-04580, 2019 WL 1785453, at *2 (E.D. Pa. Apr. 24, 2019). In addition, “a strong

presumption of fairness attaches to proposed settlements that have been negotiated at arms-length.”

Id. “[A] dispute concerning overtime pay owed to class members is precisely the type of dispute

the FLSA is designed to address” Altnor, 197 F. Supp. 3d at 763 (citing Barrentine v. Arkansas-

Best Freight Sys., Inc., 450 U.S. 728, 739 (1981).

In scrutinizing an FLSA settlement agreement for reasonableness and fairness, courts

generally proceed in a “two-step” analysis: (1) the court considers whether the agreement is “fair

and reasonable” to the plaintiffs (i.e., the employees), and (2) if it is, the court next considers

whether the agreement furthers or “impermissibly frustrates” the implementation of the FLSA in

the workplace. Chickie’s, 2014 WL 911718 at *2 (citations omitted).

With respect to the first step, because the Third Circuit has not yet definitively set out

FLSA-specific criteria to apply to assess the fairness and reasonableness of a proposed FLSA

settlement agreement, district courts have looked to the same Girsh factors (discussed above) used

in evaluating the fairness of class action settlements under Fed. R. Civ. P. 23(e). See id. at *2

(citing Girsh, 521 F. 2d at 157).8 Once the FLSA settlement is found to fair and reasonable, the

Court also determines whether the agreement furthers the purpose of the FLSA. See Singleton v.

First Student Mgmt., LLC, No. 13-cv-1744, 2014 WL 3865853, at *8 (D.N.J. Aug. 6, 2014).

8 It should be noted that courts apply the Rule 23-applicable Girsh factors to consider the fairness of an FLSA settlement only where the settlement involves a “hybrid” action, like this one, alleging both FLSA and state wage and hours law claims. Here, Plaintiffs seek approval of the settlement of FLSA claims as a collective action under 29 U.S.C. § 216(b) as well as approval of a settlement class of class members of specified states under Rule 23. See, e.g., Maddy v. Gen. Elect. Co., No. 14-490-JBS-KMW, 2017 WL 2780741, at *3 (D.N.J. June 26, 2017).


11

C. The Settlement Satisfies the Relevant Criteria for Approval

1. The Proposed Settlement Terms Are Fair, Reasonable and Adequate in Light of the Complexity, Expense and Likely Duration of the Litigation,the Risks of Establishing Liability and Damages and of Maintaining the Class Action Through Trial in this Bona Fide Dispute

The first Girsh factor - “the complexity, expense and likely duration of the litigation” -

requires the Court to consider “the probable costs, in both time and money of continued litigation.”

Galt v. Eagleville Hosp., 310 F. Supp. 3d 483, 493 (E.D. Pa. 2018) (citing In re General Motors,

55 F. 3d at 812 (internal quotations and citation omitted)). Girsh factors four, five and six, which

weigh “the risks of establishing liability, the risks of establishing damages, and the risks of

maintaining the class action through the trial” require the Court to “survey the potential risks and

rewards of proceeding to litigation in order to weigh the likelihood of success against the benefits

of an immediate settlement.” In re Warfarin Sodium Antitrust Litig. 391 F. 3d 516, 537 (3d Cir.

2004). In applying the risks of establishing liability and damages, “the Court need not delve into

the intricacies of the merits of each sides arguments, but rather may ‘give credence to the

estimation of the probability of success proffered by [Class Counsel], who are experienced with

the underlying case, and the possible defenses which may be raised to their causes of action.’”

Perry v. FleetBoston Fin. Corp, 229 F.R.D. 105, 115 (E.D. Pa. 2005). Application of these Girsh

factors support final approval of this Settlement.

Defendant TLT has agreed to pay a large gross settlement amount - $1,800,000.00 - in

settlement of the claims of the Settlement Class. Pursuant to the Settlement Agreement, if the

Court approves the amounts set forth above, the Net Settlement Amount would be approximately

$1,102,500. Accordingly, Settlement Class Members will receive an average recovery of

approximately $1,460.26, even after settlement administration costs, the Named Plaintiffs’ service

awards, and attorneys’ fees and costs are deducted. See Schalman-Bergen Decl. ¶ 12. Every Class


12

Member who participates in this Settlement will receive a minimum payment of $100.00. See id.

¶ 15; Settlement Agreement ¶ 37(a). Notably, the Net Settlement Amount represents

approximately 157% of Class Counsel’s calculations of unpaid wages owed using the most

favorable assumptions on time worked at a half-time rate. Schalman-Bergen Decl. ¶ 14.

Awards to Eligible Class Members will be made from the Net Settlement Amount.

Specifically, all Eligible Class Members will receive a pro rata share of the Net Settlement

Amount based the total number of weeks when he or she worked more than four days per week

between March 8, 2014 through April 5, 2017 (the date when TLT changed its pay policies and

practices). Settlement Agreement ¶ 37(b). The entirety of the Net Settlement Fund will be

disbursed to all Eligible Class Members. If any monies remain in the Qualified Settlement Fund at

the end of the 180-day check-cashing period, those monies shall be paid to Philadelphia Legal

Assistance, the Parties’ agreed-upon cy pres recipient, subject to the Court’s approval. There will

be no reversion of any portion of the funds to Defendants. Id. at ¶¶ 34(a), 44.

Plaintiffs believe that the Settlement is an excellent result for the members of the

Settlement Class. Defendants were prepared to vigorously defend this action by asserting a number

of defenses to liability, and dispute that the claims presented were appropriate for class certification

or FLSA collective action treatment. While the Court had already ruled on liability in granting

Plaintiffs’ Motion for Judgment on the Pleadings converted into a Motion for Summary Judgment,

holding that unpaid wages were owed where a settlement Class Member worked more than forty

(40) hours per week9—the Parties vigorously disputed a number of legal and factual issues that

would have impacted the case going forward, including, but not limited to the following:

9 See Court Order dated August 16, 2018, granting Plaintiffs’ Motion for Judgment on the Pleadings converted into a Motion for Summary Judgment. (Dkt. No. 81.) See also Settlement Agreement ¶ 11.


13

1) the amount of time that Delivery Associates spent performing their work;10

2) whether damages should be paid at a half-time rate or a time-and-a-half rate

3) whether Defendants would be able to meet their burden of demonstrating that the TL Defendants’ unlawful pay system was taken in good faith with reasonablegrounds for their belief that they were complying with the FLSA pursuant to 29U.S.C. § 216(b) such that they would avoid the imposition of liquidated damages;

4) whether Amazon would be held liable for the alleged pay violations of TLT;

5) whether the Court would certify a class action under Rule 23 or grant final certification of a collective action under the FLSA; and

6) whether Plaintiffs and/or Defendants would appeal myriad legal or factual determinations, including class/collective action treatment, liability, and damages.

Schalman-Bergen Decl. ¶ 30. As a result, continued litigation would require significant factual

development and any verdict at trial could be delayed based on appeals by Defendants. Id.

Notably, among the risks particular to this case, first, there was a risk that Plaintiffs would

not succeed in maintaining a collective or class through trial. Accordingly, the risks and costs of

continued litigation are likely to be much higher than those of a typical single party case. Second,

a trial on the merits would involve significant risks for Plaintiffs as to both the liability of joint

employment by Amazon as well as the appropriate rate and calculation of damages, and any verdict

at trial would be delayed by appeals by Defendants. Third, the FLSA provision at issue was hotly

contested, with each side citing factual and legal support in its favor: Plaintiffs argued that, because

10 Because TLT was not able to produce complete time records for Delivery Associates during the relevant time period due to changes in its timekeeping programs, the Parties had to use various assumptions to estimate time worked for purposes of calculating damages. Both parties modeled these damages by analyzing Amazon’s delivery data, which includes various times when the Delivery Associates scan and/or deliver packages to Amazon customers. The parties engaged in numerous meet and confer calls so that Class Counsel could understand the data and could engage in fully informed settlement negotiations. As part of their exposure analysis, Class Counsel’s in house data analyst matched payroll records produced by TLT with the delivery data produced by Amazon, and built in various factual assumptions on time worked in addition to the time that was captured by Amazon’s delivery data. Ultimately the Gross Settlement Amount that was negotiated and agreed upon represents a compromised resolution on this issue. Schalman-Bergen Decl. ¶ 30,n. 4.


14

Defendant TLT admitted that Delivery Associates were paid other forms of compensation for

services, the exception to the general rule that overtime must be paid at a time-and-a-half rate as

set forth in 29 C.F.R. § 778.112 would not apply. See 29 C.F.R. § 778.112 (permitting overtime to

be paid at a half time rate where an employee is paid a flat sum for a day’s work or for doing a

particular job, without regard to the number of hours worked in the day or at the job, and if he

receives no other form of compensation for services).11 In response, Defendants raised various

factual and legal arguments disputing that damages would be ordered to be paid at a time-and-a-

half rate.12 Ultimately the Gross Settlement Amount that was negotiated and agreed upon

represents a compromised resolution on this central issue. Id. at ¶ 31.

Similarly, the Settlement satisfies Girsh factors eight and nine - the “range of

reasonableness of the settlement fund in light of the best possible recovery” and “in light of all the

attendant risks of litigation” – which weigh the risks of proceeding to trial against the value of an

immediate settlement, and recognizes that “settlement is a compromise, a yielding of the highest

hopes in exchange for certainty and resolution.” In re CertainTeed Fiber Cement Siding Litig., 303

F.R.D. 199, 218 (E.D. Pa. 2014) (citing In re General Motors, 55 F. 3d at 806). Here, the settlement

is substantial and eminently reasonable given the magnitude of the risks in proceeding to trial.

Moreover, the Net Settlement Amount represents approximately 157% of Class Counsel’s

calculations of unpaid wages owed using the most favorable assumptions on time worked at a half-

time rate. The Settlement, thus, represents a high percentage of the maximum expected recovery

if Plaintiffs prevailed. This is a remarkable recovery and weighs heavily in favor of approval of

11 See, e.g., Rodriguez v. Republic Servs., Inc., No. SA-13-CV-20-XR, 2013 WL 5656129, at *2 (W.D. Tex. Oct. 15, 2013). 12 See, e.g., Lalli v. Gen. Nutrition Ctrs., Inc., 814 F. 3d 1, 10 (1st Cir. 2016); Powell v. Carey Int’l, Inc., 514 F. Supp. 2d 1302, 1313 (S.D. Fla. 2007); Mumby v. Pure energy Servs. (USA), Inc., 636 F. 3d 1266, 1268 (10th Cir. 2011).


15

the Settlement. Indeed, Courts routinely approve class action settlements where the settlement

amount is only a relatively small percentage of the claimed amount of damages. See., e.g.,

McDonough v. Toys R Us, Inc., 80 F. Supp. 3d 626, 646 (E.D. Pa. 2015) (approving settlement

which constituted 24% of estimated loss to the class, and noting that courts in the Third Circuit

consistently approve settlements that equal between 9% and 24% of the total potential liability to

the class); Nichols v. Smithkline Beecham Corp., No. 00-6222, 2005 WL 950616, at *16 (E.D. Pa.

April 22, 2005) (approving settlement that represented between 9.3% and 13.9% of claimed

damages); Mehling v. N.Y. Life Ins. Co., 248 F.R.D. 455, 462 (E.D. Pa. 2006) (approving

settlement that represented 20% of best possible recovery and noting that courts have approved

settlements with even lower ratios); Galt, 310 F. Supp. 3d at 495 (settlement which represented

approximately 62.5% of maximum total compensatory damages was a “significant recovery of the

unpaid wages that could have reasonably been proven at trial” especially “in light of the risk

associated with further litigation” and satisfied eighth and ninth Girsh factors).13

In addition, the proposed allocation formula is fair and reasonable and should be

preliminarily approved. The Court’s “[a]pproval of a plan of allocation of a settlement fund… is

governed by the same standards of review applicable to approval of the settlement as whole; the

distribution plan must be fair, reasonable and adequate.” Mehling, 248 F.R.D. at 463 (citation

omitted.). “A district court’s principal obligation in approving a plan of allocation is simply to

ensure that the fund distribution is fair and reasonable as to all participants in the fund.” Sullivan

v. DB Invs., Inc., 667 F. 3d 273, 326 (3d Cir. 2011) (internal quotations and citation omitted).

13 See also Chemi v. Champion Mortg., No. 2:05-cv-1238 (WHW), 2009 WL 1470429, at *5(D.N.J. May 26, 2009) (approving FLSA collective settlement as “reasonable, fair and adequate” given the magnitude of the risk of continued litigation, and explaining that a settlement can be “reasonable” even if “significantly less” than the “best recovery” the class might obtain by continuing to trial).


16

“Generally, a plan that reimburses class members based on the nature and extent of their injuries

is considered reasonable.” Mehling, 248 F.R.D. at 463. “In determining the fairness,

reasonableness, and adequacy of a plan of allocation, courts give great weight to the opinion of

qualified counsel.” In re Royal Dutch/Shell Transport Secs. Litig., No. 04-374 (JAP), 2008 WL

9447623, at *23 (D.N.J. Dec. 9, 2008) (citations omitted).

Here, Settlement Class Members do not need to take any action in order to receive a

Settlement Award. Under the proposed allocation formula, each Eligible Class Member will

receive a minimum amount of $100.00 in addition to the settlement shares that bear a reasonable

relationship to his/her potential damages (i.e., a pro rata portion of the Net Settlement Amount).

Settlement Agreement ¶ 37(b)(i)(ii). All Settlement Award determinations will be based on

Defendant TLT’s previously produced payroll and timekeeping data for Settlement Class

Members. Id. at ¶ 38. This allocation formula considers that Settlement Class Members worked

different amounts of overtime hours on a weekly basis, and, if they prevailed, would be entitled to

different amounts of damages. This formula for distribution of the Net Settlement Fund based on

Qualifying Workweeks is similar to those found to be fair and reasonable in similar cases, and

accordingly warrants approval.14

14 See, e.g., Holbert v. Waste Management, 2:18-cv-02649-CMR (E.D. Pa. August 6, 2019)(approving FLSA collective action settlement where allocation formula featured pro ratadistribution based on number of workweeks of each settlement collective member, in addition to automatic minimum payment); Gundrum v Cleveland Integrity Servs. Inc., No. 4:17-cv-000550TCK-JFJ (N.D. Okla. Dec. 4, 2017) (Dkt. No. 102) (granting final approval of settlement agreement with allocation formula comprised of distribution of minimum payment, plus, for those who submit a claim form, a pro rata share of net settlement amount based on number of workweeks in which he/she worked in qualifying position for defendant and were paid on daily rate basis) (Dkt. No. 11, at 7-8); See Lopez v. T/J Inspection, Inc., No. 5:16-cv-148-M (W.D. Okla. April 12, 2017) (Dkt. No. 59) (approving day rate overtime settlement with allocation formula based on workweeks); Fenley v. Applied Consultants, Inc., No. 2:15-CV-00259-MRH (W.D. Pa. June 17, 2016) (Dkt. No. 65) (same); McGeary v. North Am. Pipeline Insp., LLC, No. 2:14-cv-992-JFC


17

Furthermore, the formula takes into account that many of these Settlement Class Members

also had previously considered and turned down offers of judgment served on them by TLT, at the

risk that costs would be taxed against Plaintiffs if the amount finally obtained was not more

favorable than the unaccepted offer. See Rule 68(d). The Settlement Agreement provides

Settlement Class Members with more money than was offered by the TLT Defendants in their

offers of judgment (Settlement Agreement ¶ 37(b)(iii)), and also provides that 16 Settlement Class

Members who previously accepted their offers of judgment will be entitled to the difference

between this proposed settlement and the amounts they accepted, in light of the fact that the Court’s

orders only dismissed their claims against TLT. See Dkt. Nos. 50, 111, 114 (Orders entering Partial

Judgment pursuant to Rule 54(b) in favor of Opt-In Plaintiffs and against Defendant TL

Transportation).15

In the instant case, the Parties have vigorously litigated this case for over two (2) years and

continued to dispute key factual and legal issues. The complexity and expense of proceeding with

litigation is clearly outweighed by the efficiency and financial relief presented by the Settlement

Agreement. Thus, the Girsh factors relating to the complexity, expense and likely duration of the

litigation, the risks of establishing liability and damages and of maintaining the class action

through trial, and the range of reasonableness of the settlement in light of the best possible recovery

given the attendant risks of litigation, strongly support final approval of this Settlement. See Galt,

(W.D. Pa. Dec. 22, 2014) (Dkt. No. 97) (same); Bozak, Inc., 2014 WL 3778211 at *3 (approving collective action settlement in case brought by current and former FedEx group Package line haul services managers in which allocation formula took into account number of workweeks each class member worked in relevant period).15 TLT provided offers of judgment to 186 Eligible Class Members. Of those Eligible Class Members, 170 rejected TLT’s offers and their calculated minimum settlement awards were more than the offers of judgment. On average, the awards were 26% more than the offers of judgment, the average difference being $1,867.14. See Schalman-Bergen Decl. ¶ 16, n. 2.


18

310 F. Supp. 3d at 493-94 (Girsh factors favored settlement where “action involves complex

factual issues relating to Defendants’ policies and practices that, if litigated to trial would require

substantial additional class-wide merits and damages discovery” including multiple depositions by

both sides, and extensive motion practice concerning class certification and summary judgment,

while “settlement at this stage avoids the significant costs and risk associated with protracted

litigation”); Potoski v. Wyoming Valley Health Care Sys., No. 3:11-cv-00582, 2020 WL 207061,

at *4 (M.D. Pa. Jan. 14, 2020) (applying pertinent Girsh factors, court approved settlement, where

“contentious” litigation had gone on for years, class had survived summary judgment and would

likely next face other pre-trial motions as well as the issue of final certification: “This is to say that

the litigation is far enough along that settlement is appropriate, but no so far [a]long that is clearly

near completion.”) In re Janney Montgomery Scott LLC Fin. Consultant Litig., No. 06-3202, 2009

WL 2137224, at *8 (E.D. Pa. July 16, 2009) (“settlement allows both the class and Defendant to

avoid the obstacles presented by protracted litigation” and “[c]onsiderable time, money and

resources will be saved by approving the settlement.”); Mulroy, 2014 WL 7051778 at *3

(application of Girsh factors weighed in favor of approving settlement of Rule 23 class and FLSA

collection action: “Since continued litigation would be time-consuming and expensive, settlement

makes eminent sense.”).16

2. The Lawsuit is at an Appropriate Stage of the Proceedings for Settlement

“Approval of a settlement is favored where ‘[t]he parties arrived at an arms-length

16 See also Deitz v. Budget Renovations & Roofing, Inc., No. 4:12-cv-0718, 2013 WL 2338496, at *5 (M.D. Pa. May 29, 2013) (“The Court sees no reason to needlessly expend judicial resources on a matter that neither party has any interest in continuing to litigate.”); Maddy v. General Electric, 2017 WL 2780741 at *7 (“[T]here is tremendous benefit to the Class Members in light of the stage of the litigation, the remaining hurdles prior to even arriving at a trial date, and the risks associated with continued litigation”).


19

settlement…[with] a clear view of the strengths and weaknesses of their case.’” CertainTeed, 303

F.R.D. at 217 (citation omitted). “[C]ourts generally recognize that a proposed class action

settlement is presumptively valid where…the parties engaged in arm’s length negotiations after

meaningful discovery.” Cullen v. Whitman Med. Corp., 197 F.R.D. 136, 144-45 (E.D. Pa. 2000).

Settlements arrived at following discovery “are more likely to reflect the true value of the claim.”

Boone v. City of Phila., 668 F. Supp. 2d 693, 712 (E.D. Pa. 2009) (citing Bell Atl. Corp. v. Bolger,

2 F. 3d 1304, 1314 (3d Cir. 1993)).

In this case, the proposed Settlement was reached after contested litigation, extensive

factual discovery and a series of serious arm’s-length negotiations through the ADR process at

various junctures over the course of two years. Specifically, the Settlement was reached only after

(1) the exchange of substantial documents and records, including electronic payroll records

showing days worked and all forms of compensation received by Plaintiffs and Class Members

during the relevant time periods; (2) multiple pre-settlement conference calls; (3) multiple

depositions; (4) extensive briefing and oral argument on a motion for summary judgment; (5)

preparation and exchange of mediation statements; and (6) three in person-mediations in

Philadelphia, Pennsylvania before experienced mediators, which included additional extensive

arm’s-length negotiations between counsel for the Parties both before and after the mediation. See

Schalman-Bergen Decl. ¶ 32; Settlement Agreement ¶¶ 3-18.

For example, following the first two unsuccessful ADR attempts, Plaintiffs filed a partial

judgment on the pleadings regarding Defendant TLT’s payment scheme. The Court after briefing

and oral argument converted the motion to a partial motion for summary judgment. (Dkt. Nos. 67,

69.) The Court granted Plaintiffs’ motion on August 16, 2018. (Dkt. No. 81.) In addition, litigation

of this matter was complex and laborious. The Parties stipulated to notice after the Plaintiffs filed


20

their motion for conditional certification and to facilitate notice pursuant to 29 U.S.C.§ 216(b)

(Dkt. Nos. 46-64), and Plaintiffs then oversaw the notice administration process in which notice

was distributed on August 10, 2018 to 757 individuals. (Dkt. Nos. 13, 83, 85, 87-90, 94-101, 107-

110, 115). Plaintiffs also filed two Amended Complaints, responded to a Motion to Dismiss,

conducted three (3) depositions of Defendant TLT’s representative, and responded to hundreds of

offers of judgment from Defendant TLT. See Settlement Agreement ¶¶ 5,7, 10, 12, 13. Prior to the

mediations, the Parties engaged in multiple pre-mediation meet and conference calls. In

preparation for these mediations, Class Counsel prepared and provided a comprehensive damages

analysis to Defendants’ counsel. There was sufficient investigation and discovery conducted in

this matter to allow counsel and the Court to act intelligently concerning the settlement of the

claims. Schalman-Bergen Decl. ¶ 33.

Further, because TLT was not able to produce complete time records for Delivery

Associates during the relevant time period due to changes in its timekeeping programs, the Parties

had to use various assumptions to estimate time worked for purposes of calculating damages. Both

Parties modeled these damages by analyzing Amazon’s delivery data, which includes various

times when the Delivery Associates scan and/or deliver packages to Amazon customers. The

Parties engaged in numerous meet and confer calls so that Class Counsel could understand the data

and could engage in fully informed settlement negotiations. Id. at ¶ 34.

Accordingly, the Girsh factor concerning the “stage of the proceedings” strongly favors

final approval of the Settlement. In re Warfarin, 391 F. 3d at 537 (“[b]ased on the type and amount

of discovery undertaken by the parties…. class counsel adequately appreciated the merits of the

case before negotiating, and we agree that this factor strongly favors approval of the settlement”);

Galt, 310 F. Supp. 3d at 494 (in the course of negotiating the settlement, “Class Counsel collected


21

and reviewed a substantial volume of documents pertaining to Defendant’s policies and procedures

as well as payroll records of each of the FLSA collective members in order to investigate the

factual support for the legal claims”; thus, court found that the settlement “resulted from informed

negotiations between experienced counsel who fully appreciated the merits and risks of this case”).

For the same reasons, the settlement is fair and reasonable under the relevant “Prudential” factor

which similarly considers “the maturity of the underlying substantive issues.” See In re Prudential

Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir. 1998) (finding class

counsel’s “vigorous litigation,” pursuit of discovery, and use of informal discovery supported

settlement).17

3. The Opinion of Experienced Counsel Supports Approval of the Settlement, Which Resulted from Arm’s-length Negotiations By Informed and Experienced Counsel

As discussed above, the Settlement was reached after an intensive arms-length ADR

process, through which the Parties participated in three in-person mediation sessions in

Philadelphia, Pennsylvania before Hon. James R. Melinson (Ret.) on October 17, 2017 and March

15, 2018, and Stephen Sonnenberg, Esq. on July 29, 2019. See Settlement Agreement ¶¶ 4, 8, 16.

The participation by such neutral and well-respected facilitators, and the adversarial nature of those

negotiations illustrates that this case was resolved and settled only after sufficient arm’s-length

bargaining. Counsel for both sides are highly experienced in wage and hour class action litigation.

The Declarations of Class Counsel filed in support of Plaintiffs’ Unopposed Motion for Approval

of Attorneys’ Fees and Costs describe Class Counsel’s experience in this area. See Pl.’s Motion

for Approval of Attys’ Fees & Costs, Declaration of Sarah R. Schalman-Bergen (Dkt. No. 128-2)

17 In Prudential, the Third Circuit held that expanding the Girsh factors, while not mandatory, but “permissive and non-exhaustive,” might be useful to the extent they are relevant to the proposed settlement. In re Nat’l Football, 821 F. 3d at 437 (citing Prudential, 148 F. 3d at 323).


22

and Declaration of Ryan A. Hancock (Dkt. No. 128-3). These experienced wage and hour attorneys

believe that this case is appropriate for settlement and that the substantial Gross Settlement

Amount of $1,800,00.00 (amounting to a Net Settlement Amount of approximately $1,102,500.00

that will actually be paid out to Settlement Class Members) will provide significant relief to

Plaintiffs and Settlement Class Members. See In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491, 509

(W.D. Pa. Dec. 22, 2003) (“settlement negotiations took place at arm’s-length between highly

experience[d] and competent counsel. Their assessment of the settlement as fair and reasonable is

entitled to considerable weight”)

4. The Settlement Class’ Response Supports the Settlement

Finally, the Settlement Class Members’ collective response to the Settlement

overwhelmingly supports final approval. To date, there have been zero objections to the

proposed Settlement and only one request for exclusion. See Schalman-Bergen Decl. ¶ 29;

Devery Decl. ¶ 15. This overwhelmingly positive response from the Settlement Class demonstrates

the fairness and adequacy of the Settlement’s terms. Given the Court’s preliminary approval and

the complete absence of any objections by Class Members, final approval of the settlement is

warranted. See Bell Atl. Corp., 2 F.3d at 1313 n.15 (noting that it is generally appropriate to assume

that “silence constitutes tacit consent to the agreement” in the class settlement context); In re

Processed Egg Products Antitrust Litig., 284 F.R.D. 249, 269 (E.D. Pa. 2012) (holding that no

objections supports final approval of settlement).18 Thus, the Girsh factor weighing “reaction of

18 See also Galt, 310 F. Supp. 3d at 493 (“In this Circuit, a settlement is entitled to an initial presumption of fairness where it resulted from arm’s-length negotiations between experienced counsel, there was sufficient discovery, and there were no objectors and only a small percentage of opt-outs”) (citing In re General Motors, 55 F. 3d at 785).


23

the class to the settlement” weighs in favor of approval.19

D. The Proposed Settlement Furthers the Purpose of the FLSA

The Settlement Agreement contains no provisions that would be contrary to the purposes

of the FLSA or frustrate the implementation of the FLSA in the workplace. See Brown v. TrueBlue,

Inc., No. 1:10-cv-00514, 2013 WL 5408575, at *3 (M.D. Pa. Sept. 25, 2013) (finding settlement

agreement frustrated the implementation of the FLSA when it required the plaintiffs to keep the

terms of the settlement confidential or risk forfeiting their awards). Altnor, 197 F. Supp. 3d at 764

(settlement did not frustrate FLSA’s implementation where it does not contain impermissibly

broad release provisions).

Indeed, the settlement furthers the purposes of the FLSA by providing the low-wage

workers with substantial recovery for their alleged unpaid overtime wages, that, because of the

lack of bargaining power inherent in employer-employee relationships, they may have otherwise

been unable to recover. See 29 U.S.C. § 202 (congressional finding and declaration of policy);

Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706 (1945) (“The statute was a recognition of the fact

that due to the unequal bargaining power as between employer and employee, certain segments of

the population required federal compulsory legislation to prevent private contracts on their part

which endangered national health and efficiency…”). See also Symczyk v. Genesis Healthcare

Corp., 656 F. 3d 189, 199 (3d Cir. 2011) (§ 216(b) affords plaintiffs the advantage of lower

individual costs to vindicate rights by the pooling of resources.”).

19 With respect to the Girsh factor which considers “Defendant’s ability to withstand a greater judgment,” courts typically consider this factor neutral, weighing neither for or against approval of the settlement. CertainTeed, 303 F.R.D. at 218 (ability to pay more than settlement is neutral factor in approving the settlement). Thus, even if, as Plaintiffs presume, Amazon has ample resources and its ability to pay exceeds its potential liability, this was not a factor in settlement negotiations. See In re Warfarin, 391 F.3d at 538 (approving settlement even where settling defendant had ability to pay greater amount.).


24

Moreover, the Settlement release provisions are limited to wage and hour claims that

occurred prior to April 15, 2017, and Settlement Class Members will not release their FLSA claims

unless they cash or deposit their settlement check. See Settlement Agreement ¶¶ 25-26. The

Settlement contains no confidentiality or indemnification provisions, nor any prohibitions on

future employment. See generally Settlement Agreement.

Because the settlement facilitates the FLSA and is a fair and reasonable resolution of a

bona fide dispute, it should be approved as reasonable.

E. The Court Should Finally Certify the Settlement Class Under 29 U.S.C. §216(b)

In the context of a collective action settlement, the Court must complete the second stage

of certification and determine whether Plaintiffs are similarly situated under Section 216(b) of the

FLSA to finally certify the collective action. See Lovett v. Connect America.com, No. 14-2569,

2015 WL 5334261, *2 (E.D. Pa. Sept. 14, 2015); Singleton, 2014 WL 3865853 at *3 (certifying

collective action for settlement).20 To determine whether members of the collective action are

similarly situated, the Court must evaluate a number of factors, including but not limited to:

“whether the plaintiffs are employed in the same corporate department, division, and location;

whether they advance similar claims; whether they seek substantially the same form of relief; and

whether they have similar salaries and circumstances of employment.” Galt, 310 F. Supp. 3d at

492 (citing Zavala v. Wal Mart Stores, Inc., 691 F.3d 527, 536-37 (3d Cir. 2012)). The Court must

“consider[ ] all the relevant factors and make[ ] a factual determination on a case-by-case basis.”

Zavala, 691 F. 3d at 536.

Here, all of the Settlement Class Members are current or former employees of Defendant

20 The Court previously conditionally certified the Settlement Class as a collective pursuant to 29 U.S.C. § 216(b) for settlement purposes in its Preliminary Approval Order. Dkt. No. 126, ¶ 3.


25

TLT who worked as Delivery Associates at some point during the applicable time period to deliver

packages to Amazon customers in the United States. See Settlement Agreement ¶ 23(z). Settlement

Class Members did not receive the lawful amount of overtime compensation for hours worked in

excess of forty (40) hours in a workweek. For settlement purposes only, Defendants have agreed

that the requisites for establishing collective action certification under the FLSA pursuant to 29

U.S.C. § 216(b) are met. See Settlement Agreement ¶ 21. Accordingly, the Court should grant final

certification to the Settlement Class under Section 216(b) of the FLSA. 21

F. The Court Should Finally Certify the Settlement Class Under Fed. R. Civ. P.23(a) and 23(b)

In addition, the Settlement Class should be finally certified. A case may be certified as a

class action under Fed. R. Civ. P. 23 when:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a); Weiss v. York Hosp., 745 F.2d 786, 807 (3d Cir. 1984), cert. denied, 470

U.S. 1060 (1985). These four threshold requirements are commonly referred to as “numerosity,”

“commonality,” “typicality,” and “adequacy of representation,” respectively. See, e.g., In re

Warfarin, 391 F.3d at 527. In addition, a plaintiff must satisfy one of the prongs of Rule 23(b). See

Baby Neal ex Rel. Kanter v. Casey, 43 F. 3d 48, 55 (3d Cir. 1994). Here, the parties request

21 Notably, the requirements for collective action certification 29 U.S.C. § 216(b) are less stringent than those listed in Rule 23. See Sloane v Gulf Interstate Field Servs., No. 4:16-cv-01571, 2017 WL 1105236, at *21 (MD. Pa. Mar. 24, 2017). Because, as discussed below, Plaintiffs have met the standards for certification of the Settlement Class under Rule 23, they have also met the criteria for certification of the FLSA class as “similarly situated” under 29 U.S.C. § 216(b).


26

certification under Rule 23(b)(3) which permits the court to certify a class in cases where

“questions of law or fact common to class members predominate over any questions affecting only

individual members,” and “a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These dual requirements are

commonly referred to as “predominance” and “superiority,” respectively. See, e.g., In re Constar

Int'l, Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009).

On October 23, 2019 the Court preliminarily certified the Settlement Class under Rule 23

for settlement purposes (Dkt. No. 126, ¶ 4), and Plaintiff now moves for final certification of the

Settlement Class under Rule 23(a) and 23(b)(3). Pursuant to the terms of the Settlement

Agreement, Defendant has stipulated that, for settlement purposes only, the requisites for

establishing class certification pursuant to Fed. R. Civ. P. 23(a) and (b)(3) are met. Settlement

Agreement ¶ 21.

1. The Settlement Class Is Sufficiently Numerous

To meet the numerosity requirement of Fed. R. Civ. P. 23(a)(1), “the class size only need

be large enough that it makes joinder impracticable.” Fry v. Hayt, Hayt & Landau, 198 F.R.D.

461, 467 (E.D. Pa. 2000). The proposed Settlement Class here easily meets the numerosity

requirement because approximately 755 Settlement Class Members have been identified through

Defendant TLT’s payroll records. Settlement Agreement ¶ 23(z). Each Eligible Settlement Class

Member (i.e., Settlement Class Members who do not exclude themselves from the Settlement) will

receive a settlement award. See id. ¶¶ 37. See Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir.

2001) (although “[n]o minimum number of plaintiffs is required to maintain a suit as a class

action,” a plaintiff in this circuit can generally satisfy Rule 23(a)(1)’s numerosity requirement by

establishing “that the potential number of plaintiffs exceeds 40”). Numerosity is satisfied.


27

2. The Settlement Class Seeks Resolution of Common Questions

The commonality requirement of Fed. R. Civ. P. 23(a)(2) is satisfied if the named Plaintiff

shares at least one question of fact or law with the grievances of the prospective class. See id., 275

F.3d at 227. Here, Named Plaintiffs and the Settlement Class Members’ claims arise from their

common work as Delivery Associates, working under Defendant TLT’s common pay policies and

alleged failure to pay Delivery Associates the proper amount of overtime premiums. This pay plan

applied to all Members of the Settlement Class, who all performed similar work delivering

packages to Amazon customers on similar schedules (i.e., on a daily route basis assigned by

Defendants.). Amazon also raised the same joint employer defense to all Delivery Associates.

These sample common questions of law and fact, which Plaintiffs contend apply uniformly to all

members of the Settlement Class, are sufficient to satisfy the commonality requirement.

3. The Named Plaintiffs’ Claims Are Typical Of the Settlement Class

The typicality requirement of Fed. R. Civ. P. 23(a)(3) is satisfied for purposes of approving

the settlement because Plaintiffs’ claims are reasonably coextensive with those of the Settlement

Class Members, and because Plaintiffs possess the same interest and suffered the same injury as

the absent class members. See Fry, 198 F.R.D. at 468; General Tel. Co. of S.W. v. Falcon, 457

U.S. 147, 156 (1982). Plaintiffs’ claims for unpaid overtime compensation during weeks when

they worked as Delivery Associates are typical of the claims of the Settlement Class. Galt, 310 F.

Supp. 3d at 490-491 (typicality satisfied where “Named Plaintiffs’ claims are based on

Defendant’s alleged failure to compensate them for time spent working during meal breaks, and

they seek compensation for this unpaid time [and, thus] [t]he prospective class members have

claims that rely on the same policies and procedures and entitle them to the same types of relief.”)


28

4. Class Counsel And Plaintiff Meet The Adequacy Requirements Of The Settlement Class

To meet the adequacy requirement of Fed. R. Civ. P. 23(a)(4), a named Plaintiff must show:

(1) that he or she has the ability and incentive to represent the claims of the class vigorously; (2)

has obtained adequate counsel; and (3) that there is no conflict between the individual’s claims

and those asserted on behalf of the class. Fry, 198 F.R.D. at 469; Galt, 310 F. Supp. 3d at 491.

The adequacy of representation requirement is met here because each Named Plaintiff has

the same interests as the Settlement Class Members in the recovery of unpaid overtime wages.

There is no conflict between the Plaintiffs and the Settlement Class in this case, and Plaintiffs’

claims are in line with the claims of the Class. Plaintiffs have aggressively and competently

asserted the interests of the Settlement Class, and Plaintiffs’ counsel (preliminarily approved as

Class Counsel, Dkt. No. 126, ¶ 6) are skilled and experienced in wage and hour class action

litigation, as set forth in the declarations of Class Counsel submitted with Plaintiffs’ Unopposed

Motion for Attorneys’ Fees and Costs. (Dkt. Nos. 128-2, 128-3).

5. The Settlement Class Satisfies the Predominance and Superiority Requirements of Fed. R. Civ. P. 23(b)(3)

Under Fed. R. Civ. P. 23(b)(3), class certification is appropriate if “the court finds that the

questions of law or fact common to the members of the class predominate over any questions

affecting only individual members, and that a class action is superior to other available methods

for the fair and efficient adjudication of the controversy.”

“[T]he focus of the predominance inquiry is on whether the defendant’s conduct was

common as to all of the class members, and whether all of the class members were harmed by the

defendant’s conduct.” In re Processed Egg Prods., 284 F.R.D. at 263 (citation omitted). For the

reasons discussed above, the Settlement Class satisfies the predominance requirement. Plaintiffs

assert that all Settlement Class Members were affected by Defendants’ policies that allegedly


29

denied all Settlement Class Members overtime wages. See, e.g., Chemi, 2009 WL 1470429

(predominance established where each class member shares a similar legal question: whether the

alleged failure to pay them overtime violated applicable wage laws, a common question which

predominates over any factual variations of individual worker’s claims, such as number of hours

worked or hourly wage).

“Superiority” requires the Court to consider “(1) class members’ interests in individually

controlling the prosecution of separate actions; (2) the extent and nature of any litigation

concerning the controversy already begun; (3) the desirability of concentrating the litigation of the

claims in a particular forum; and (4) the likely difficulties in managing a class action.”

CertainTeed, 303 F.R.D. at 214 (citation omitted). Here, allowing the Settlement Class Members

the opportunity to participate in a class settlement that yields an immediate and substantial benefit

is highly superior to having a multiplicity of individual and duplicative proceedings in this Court.

It is also superior to the alternative of leaving these important labor rights unaddressed due to the

difficulty of finding legal representation and filing claims on an individual basis. CertainTeed, 303

F.R.D. at 214 (finding class action “superior to other potential avenues of recovery” for plaintiffs

and settlement class members; class action “provides persons with smaller claims who would

otherwise be economically precluded from doing so with the opportunity to assert their rights,”

while permitting the “right to opt-out,” and, at the same time, “serves to promote judicial economy

through the efficient and consistent resolution of multiple claims in a single action”).22 Moreover,

the Third Circuit has ruled that there is no reason to preclude federal jurisdiction over class actions

22 Finally, in the context of a settlement-only certification under Rule 23(b)(3), a district court need not consider manageability issues that may have been presented if the case went to trial, because the point of a settlement is that there will be no trial. CertainTeed, 303 F.R.D. at 227 n. 1 (citing Anchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997)).


30

asserting claims under state statutory wage and overtime laws paralleling the FLSA. See Knepper

v. Rite Aid Corp., 675 F.3d 249 (3d Cir. 2012).

Accordingly, Plaintiffs respectfully request that the Court finally certify the Settlement

Class for settlement purposes only.

G. The Notice Provisions Were Followed and Provided Adequate Notice To The Class that Satisfies Due Process

The U.S. Supreme Court has held that notice of a class action settlement must be

“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950); Bozak v. FedEx Ground Package Sys., Inc., No. 11-

Civ. 738, 2014 WL 3778211, at *3 (D. Conn. July 31, 2014) (approving FLSA notice that provides

“notice to the Eligible Settlement Class Members of the terms of the Settlement and the options

facing the Settlement Class”).

Here, the content of the proposed Notice and manner of distribution negotiated and agreed

upon by the parties was “the best notice practicable,” as required under Fed. R. Civ. P. 23(c)(2)(B).

The Notice was highly informative, setting forth, in simple terms (1) the factual and procedural

background of this action; (2) the terms of the Settlement, including the Gross Settlement Amount,

the amount each Eligible Class Members will receive, the amounts that are being requested for

attorneys’ fees and costs, settlement administration costs, and service awards; (3) the method of

allocation of the Net Settlement Amount among participants; (4) Settlement Class Members’ rights

to exclude themselves from, or object to, the Settlement; (6) information about the Final Approval

Hearing; (7) and contact information for the Settlement Administrator and Class Counsel. As

described above, and in the accompanying Declaration of Brian S. Devery of the Angeion Group,

the Notice provisions of the Settlement Agreement were all followed by the Settlement


31

Administrator. See generally Devery Decl. All of the Eligible Class Members will receive

monetary compensation. See Schalman-Bergen Decl. ¶ 17. Accordingly, the Notice complies with

the standards of fairness, completeness, and neutrality required of a settlement class notice

disseminated under authority of the Court. CONTE & NEWBERG at §§ 8.21 and 8.39; MANUAL

FOR COMPLEX LITIGATION at §§ 21.311 and 21.312.23

H. The Proposed Cy Pres Beneficiary Should be Approved

The Third Circuit instructs that district courts are to assess the fairness, reasonableness,

and adequacy of a cy pres award under Rule 23(e)(2) by applying the same Girsh factors used to

assess other aspects of the class action settlement. See Google, 934 F. 3d at 329. Cy pres

distribution of excess settlement funds is appropriate where some class members are compensated

directly and “further individual distributions are economically infeasible.” Id. at 327 (citation

omitted). Courts in the Third Circuit routinely approve distributions to cy pres recipients, such as the

Philadelphia Legal Assistance. See In re Baby Products, 708 F.3d at 172 (“When excess settlement

funds remain after claimants have received the distribution they are entitled to under the terms of the

settlement agreement, there are three principal options for distributing the remaining funds—reversion

to the defendant, escheat to the state, or distribution of the funds cy pres. Among these options, cy pres

distributions have benefits over the alternative choices. [. . .] Cy pres distributions also preserve the

deterrent effect, but (at least theoretically) more closely tailor the distribution to the interests of class

members, including those absent members who have not received individual distributions.”). “[C]y

pres awards should generally represent a small percentage of total settlement funds,” unless a

23 Plaintiffs have requested payment of up to $25,000.00 to the appointed Settlement Administrator, the Angeion Group, which will be paid from the Gross Settlement Amount, subject to the Court’s approval. Settlement Agreement ¶ 23(r); Devery Decl. ¶ 2. No Class Member has objected. See Galt, 310 F. Supp. 3d at 499 (“In the absence of any objections from class members, the Court finds the requested payment to be fair and reasonable in light of the efforts expended”).


32

district court finds “sufficient justification.” Google, 934 F.3d at 329 (citing In re Baby Products,

708 F. 3d at 174). These conditions are met here.

Settlement checks will be valid and negotiable for a period of 180 days from the date of

their issuance. Only after the 180-day check-cashing period has expired will the remaining monies

will be paid to the Parties’ agreed-upon cy pres recipient, Philadelphia Legal Assistance,

designated in the Settlement Agreement, and subject to the Court’s approval. Settlement

Agreement ¶¶ 43-44.

Philadelphia Legal Assistance is a non-profit organization which provides free civil legal

services to low-income residents of Philadelphia. One important purpose of Philadelphia Legal

Assistance is to provide free employment-related legal services to economically disadvantaged

individuals, such as the Pennsylvania Farmworker Project which represents Pennsylvania migrant

workers in FLSA and other actions under federal and state worker-protection laws.24 Further, a

Pennsylvania organization is proper since a substantial number of Settlement Class Members

worked in Pennsylvania. Schalman-Bergen Decl. ¶ 21. See Google, 934 F. 3d at 327 (district court

properly approving class action settlement that included cy pres distribution of excess settlement

funds to third party to be used for purpose related to the class injury).25

I. The Service Awards To Named Plaintiffs Are Justified and Should Be Approved

Defendants have agreed to pay a service award of $15,000.00 to each of Named Plaintiffs

Tyhee Hickman and Shanay Bolden, and $2,500.00 to Named Plaintiff O’Donald Henry, for their

efforts in bringing and prosecuting this matter, and in addition, for their general release of all

24 See Philadelphia Legal Assistance, Migrant Farmworker Legal Problems. https://www.philalegal.org/taxonomy/term/33 (last visited Jan. 29, 2020).25 Further, to the best of the Parties’ knowledge, Philadelphia Legal Assistance has “no significant prior affiliation with any party, counsel, or the court.” Google, 934 F. 3d at 331.


33

waivable claims against Defendants arising out of their employment. See Settlement Agreement

¶¶ 23(r), 24, 35(a). Subject to Court approval, these amounts will be paid to Plaintiffs from the

Gross Settlement Amount and shall be in addition to their recovery of compensation towards

alleged underpaid overtime by their participation as an Eligible Class Member who will receive a

Settlement Award. Id. ¶ 23(o), 35(a).

“[C]ourts routinely approve incentive awards to compensate named Plaintiffs for services

they provided and the risks they incurred during the course of the class action litigation.” Cullen,

197 F.R.D. at 145 (E.D. Pa. 2000). It is particularly appropriate to compensate named

representative Plaintiffs with an incentive award where they have actively assisted Plaintiffs’

counsel in their prosecution of the litigation for the benefit of a class. Tenuto v. Transworld Sys.,

Inc., No. 99-cv-4228, 2002 WL 188569, at *5 (E.D. Pa. Jan. 31, 2002); Young v. Tri Cnty. Sec.

Agency, Inc., 13-cv-5971, 2014 WL 1806881, at *1 (E. D. Pa. May 7, 2014) (approving incentive

award for named representative in action alleging FLSA and PMWA violations).

Here, the proposed additional payment is justified by the benefits that Plaintiffs’ diligent

efforts have brought to the Settlement Class Members. Plaintiffs took the significant risk of coming

forward to represent the interests of their fellow employees. Plaintiffs worked with Class Counsel,

providing background information about their employment, about Defendants’ policies and

practices, and about the allegations in this lawsuit. Schalman-Bergen Decl. ¶ 23.

Plaintiff Hickman and Bolden provided integral assistance to Class Counsel in the

prosecution of this class and collective action lawsuit against Defendants. They specifically

assisted by: (1) providing the documents and input necessary for drafting each Complaint; (2)

consulting with Class Counsel in connection with discovery demands, critical motions, and

deposition preparation on a routine basis; (3) preparing and executing declarations; (4) reviewing


34

their offers of judgement served by Defendant TLT; and (5) not withdrawing as a Named Plaintiff

as this class and collective action lawsuit became subject to national media coverage regarding

Defendants’ alleged delivery practices. Plaintiffs Hickman and Bolden also participated at each

mediation (Plaintiff Hickman in person at the first two and then telephonically at the third

mediation, and Plaintiff Bolden telephonically at all three mediations). See id.

Plaintiff Henry similarly provided critical assistance to Class Counsel. Plaintiff Henry

provided Class Counsel with critical insights regarding the alleged deficits with Defendant TLT’s

payroll data produced, participated in multiple interviews with Class Counsel regarding his

experiences as a Delivery Associate, took a personal risk to represent New Jersey Class Members,

and rejected an offer of judgement served by Defendant TLT that was hard to resist during the

holiday season when his expenses exceeded his earnings. Id. at ¶ 24.

These individuals work in an industry in which workers are largely fungible, and they

bravely took the risk to step forward on behalf of their fellow workers, knowing that their names

would be on a public docket available through an internet search, and knowing that prospective

employers might take their participation in such a lawsuit in consideration when making hiring

decisions. Despite this, Plaintiffs risked their reputation in the community and in their field of

employment in order to participate in this case on behalf of the Class. Id. at ¶ 26; see Sand v.

Greenberg, No. 08-cv-7840, 2011 WL 7842602, at *3 (S.D.N.Y. Oct. 6, 2011) (approving service

awards in FLSA case as reasonable and finding that plaintiffs “took risks by putting their names

on this lawsuit,” including the risk of “blacklisting and other more subtle forms of retaliation”);

Craig v. Rite Aid Corp., No. 4:08-cv-2317, 2013 WL 84928, at *13 (M.D. Pa. Jan. 7, 2013)

(“[N]amed plaintiffs in FLSA or state wage and hour claims are often retaliated against in the

industry as a result of their obvious participation in such litigation.”). The smaller service award


35

allotted to Plaintiff Henry simply reflects the shorter length of time that he has served as a Named

Plaintiff which began with Plaintiffs’ filing of the Third Amended Complaint on September 16,

2019. Schalman-Bergen Decl. ¶ 25; Settlement Agreement ¶ 29(a).

The service awards requested in this case are also in line with those approved in wage and

hour collective and class actions throughout the Third Circuit. See, e.g., Sakalas v. Wilkes Barre

Hosp. Co., No. 3:11-cv-0546, 2014 WL 1871919, at *5 (M.D. Pa. May 8, 2014) (“Court believes

that the proposed total award of $7,500.00 (or 1.57%) of a $475,000.00 settlement fund is well-

deserved and not out of proportion to the level of [named Plaintiff’s] cooperation. Such an award

would not significantly reduce compensation for the other class members, nor is it out of the

mainstream for class action service awards in the Third Circuit.”); Bredbenner v. Liberty Travel,

Inc., No. 09-cv-905, 2011 WL 1344745, at *22-24 (D.N.J. Apr. 8, 2011) (approving service

payments of $10,000 to each of eight named Plaintiffs in wage and hour case, and citing 2006

empirical study that found average award per class representative to be $16,000); In re Janney

Montgomery, 2009 WL 2137224 at *12 (approving $20,000 enhancement awards for each of three

named Plaintiffs in wage and hour settlement).26 Moreover, the Notice explicitly informed

Settlement Class Members of the amounts of these three service awards to be deducted from the

Gross Settlement Amount, and none has objected.

For these reasons, the service award payments of $15,000.00 to each of Named Plaintiffs

Tyhee Hickman and Shanay Bolden, and $2,500.00 to Named Plaintiff O’Donald Henry should

26 See also Tavares v. S-L Distrib. Co., Inc., No. 1:13-cv-1313, 2016 WL 1743268, at *9 (M.D. Pa. May 2, 2016) ($15,000 service award each to both named plaintiffs), Godshall v Franklin Mint Co., No. 01-cv-6539, 2004 WL 2745890, at *4 (E.D. Pa. Dec. 1, 2004) ($20,000 incentive award approved each to two named plaintiffs); and other cases cited in Plaintiffs’ Memorandum of Law in Support of Unopposed Motion for Preliminary Approval of the Settlement Agreement. (Dkt. No. 125-1 at 23 n. 13.)


36

be finally approved as fair and reasonable.

IV. CONCLUSION

Based upon the foregoing reasons, Plaintiffs respectfully request that the Court grant this

Motion for Final Approval of Settlement Agreement and enter the accompanying proposed Final

Approval Order.

Dated: February 10, 2020 Respectfully submitted,

s/ Sarah Schalman-BergenSarah R. Schalman-Bergen Camille Fundora RodriguezBERGER MONTAGUE PC 1818 Market Street, Suite 3600Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 [email protected]@bm.net

Ryan Allen Hancock WILLIG, WILLIAMS & DAVIDSON1845 Walnut Street, 24th FloorPhiladelphia, PA 19103Telephone: (215) 656-3679Facsimile: (215) 561-5135Email: [email protected]

Attorneys for the Plaintiffs and the Settlement Class




Plaintiffs,

v.

TL TRANSPORTATION, LLC, SCOTT FOREMAN, HERSCHEL LOWE, AMAZON.COM, LLC, and AMAZON LOGISTICS, INC.

Defendants.

::::::::::::::

Civil Action No.: 2:17-cv-01038-GAM

Class & Collective Action

DECLARATION OF SARAH R. SCHALMAN-BERGEN IN SUPPORT OF PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION

FOR FINAL APPROVAL OF THE SETTLEMENT AGREEMENT

I, Sarah R. Schalman-Bergen, hereby declare that the following is true and correct:

1. I am a member in good standing of the bar of the Commonwealth of Pennsylvania,

and I am admitted to this Court. I am a shareholder at Berger Montague PC (“Berger Montague”)

and Co-Counsel for Plaintiffs and the Settlement Class in the above-captioned litigation.

2. Berger Montague specializes in class action litigation in federal and state courts

and is one of the preeminent class action law firms in the United States. Berger Montague currently

consists of over 65 attorneys who represent plaintiffs in complex civil litigation, class action, and

collective action litigation, with offices in Philadelphia, Minneapolis, San Diego, and Washington

D.C. The firm’s Employment Law Department has extensive experience representing employees

in class action and collective action litigation. Berger Montague has played lead roles in major

cases for over 49 years, resulting in recoveries collectively totaling well over $30 billion for our

clients and the classes they have represented. A copy of our firm’s resume is attached as Exhibit


2

A to my Declaration filed with Plaintiffs’ Unopposed Motion for Preliminary Approval of the

Settlement. (Dkt. No. 125-3, Ex. A.)

3. I am the Co-Chair of the Employment Law Department at Berger Montague, and I

have an extensive background in litigation on behalf of employees. I have served and currently

serve as lead or co-lead counsel in many employment class and collective action cases in federal

courts across the country, brought under the Fair Labor Standards Act and related state wage laws,

including unpaid wages and unpaid overtime compensation cases similar to this Lawsuit. Berger

Montague has successfully resolved numerous unpaid overtime cases in district courts across the

United States, including in the Eastern District of Pennsylvania and the other district courts in the

Third Circuit. This level of experience enabled our firm to undertake this matter and to efficiently

and successfully prosecute, negotiate, and resolve the claims on behalf of Plaintiffs and the

Settlement Class Members.

4. Practice in the area of wage and hour class and collective action litigation requires

skills, knowledge, and experience in two distinct subsets of the law: (a) the substantive

employment law applicable to such cases; and (b) the substantive and procedural aspects of

prosecuting class and collective actions. Expertise in one of these areas does not necessarily

translate into expertise in the other. Plaintiffs’ Counsel in such cases – in order to be successful –

must have deep expertise in both. The issues presented in this case required more than just a general

appreciation of wage and hour law and/or class action/collective action procedures, as these areas

of practice are often changing. Here, Class Counsel’s knowledge and expertise was utilized to drill

down on and narrow the key issues and ultimately, was leveraged to reach a fair and reasonable

$1.8 million settlement in an efficient manner.

5. My firm served as co-lead counsel in the case with Willig, Williams & Davidson.


3

Our firms worked together on the case and divided work tasks so as to avoid duplication of effort

in representing Plaintiffs and Settlement Class Members.

6. I respectfully submit this declaration in support of Plaintiffs’ Unopposed Motion

for Final Approval of the Settlement Agreement. The following is based on my personal

knowledge, and if called upon to do so, I could and would competently testify thereto.

7. This lawsuit concerns TL Defendants’ alleged unlawful policy and practice of

failing to pay overtime compensation to Delivery Associates who, until April 15, 2017, were paid

pursuant to a day rate compensation system in violation of the FLSA, and Pennsylvania, Maryland

and New Jersey state laws, and whether Amazon bears legal responsibility for those violations.

Specifically, Plaintiffs argued that because Defendant TLT admitted that Delivery Associates

were paid other forms of compensation for services, the exception to the general rule that overtime

must be paid at a time-and-a-half rate as set forth in 29 C.F.R. § 778.112 would not apply, and

therefore, Defendants were wrong to pay overtime at only the half-time rate. See 29 C.F.R.

778.112 (permitting overtime to be paid at a half-time rate where an employee is paid a flat sum

for a day’s work or for doing a particular job, without regard to the number of hours worked in

the day or at the job, and if he receives no other form of compensation for services). Defendants

raised various factual and legal arguments disputing that damages would be ordered to paid at a

time and half rate. Ultimately, the Gross Settlement Amount that was negotiated and agreed upon

($1,800,000) represents a compromised resolution on this issue.

8. The Parties participated in two mediation sessions before Hon. James R. Melinson,

Chief U.S. Magistrate Judge for the Eastern District of Pennsylvania (Ret.), at JAMS in

Philadelphia on October 17, 2017 and on March 15, 2018, and in one mediation session before

Stephen Sonnenberg, Esq., an experienced mediator, on July 29, 2019. Following the exchange


4

of substantial informal discovery, extensive arm’s-length settlement negotiations, three

mediations, and extensive litigation, including TLT’s service of offers of judgment upon 185 of

the Opt-In Plaintiffs, the Parties were able to reach a settlement of this matter. The terms of the

Parties’ settlement are set forth in the Settlement Agreement (the “Settlement Agreement” or

“Agreement”) filed on September 18, 2019. (Dkt. No. 125-2.)

9. The Settlement provides Plaintiffs and Settlement Class Members with substantial

benefits without having to wait for years of drawn out litigation.

Summary of Settlement Terms

10. The Settlement includes a gross cash payment by TLT of One Million Eight

Hundred Thousand Dollars ($1,800,000.00) (the “Gross Settlement Amount”). Defendant TLT

shall be responsible for the employer’s share of applicable payroll taxes attributable to the wage

portions of the Settlement Awards in addition to the Gross Settlement Amount. After deducting

attorneys’ fees and costs, settlement administration costs, and service awards to the Named

Plaintiffs in the amounts set forth in the Settlement Agreement, and subject to the Court’s

approval, the balance of the funds of $1,102,500 (the “Net Settlement Amount”) will be

apportioned among all Eligible Class Members

11. Specifically, every Eligible Class Member will receive a pro rata share of the Net

Settlement Amount based on the number of weeks when he or she worked more than four days per

week between March 8, 2014 through April 15, 2017 (the date when TLT changed its pay policies

and practices). The Amount of $100.00 per Eligible Class Member will be deducted from the Net

Settlement Amount prior to the determination of pro rata individual settlement shares and

allocated to each Eligible Class Member so that each Eligible Class Member receives at least

$100.00 in exchange for his or her release of claims in this Settlement Agreement.


5

12. If the Settlement is approved, Class Counsel estimates that the average award paid

to Settlement Class Members will be approximately $1,460.26, even after settlement

administration costs, the Named Plaintiffs’ service awards, and attorneys’ fees and costs are

deducted. As of the date of this Declaration, there are 755 Eligible Class Members.

13. There is no claims process, and a Settlement Class Member need not take any action

in order to receive a Settlement Award.

14. Notably, the Net Settlement Amount represents approximately 157% of Class

Counsel’s calculations of unpaid wages owed using the most favorable assumptions on time

worked at a half time rate. And, none of the funds from the Gross Settlement Amount will revert

to Defendants.1

15. The proposed allocation formula for distributing the Net Settlement Fund as set

forth in the Settlement Agreement is also fair and reasonable. Settlement Class Members do not

need to take any action in order to receive a Settlement Award. Under the proposed allocation

formula, each Eligible Class Member will receive a minimum amount of $100.00 in addition to

the settlement shares that bear a reasonable relationship to his/her potential damages (i.e., a pro

rata portion of the Net Settlement Amount). Settlement Agreement ¶ 37(b)(i)(ii). All Settlement

Award determinations will be based on Defendant TLT’s previously produced payroll and

1 In preparing the Motion for Final Approval of the Settlement Agreement, Class Counsel observed that the Notice distributed to the Settlement Class contained a typo that incorrectly stated, “Uncashed checks from Eligible Class Members who worked outside of Pennsylvania, Maryland, and New Jersey shall be returned to Defendant TLT, and those Eligible Class Members shall not release any claims against Defendants.” Settlement Agreement, Ex. A. However, any uncashedchecks from any Eligible Class Member will not revert to Defendants, but rather will be distributed to the cy pres subject to Court approval. Because this Settlement Agreement actually provides for more favorable treatment of the money than this typo stated, and because Settlement Class Members will receive a check regardless of whether they submit a Claim Form, Class Counsel does not believe that the typo implicates any due process concerns or changes whether the settlement should be finally approved.


6

timekeeping data for Settlement Class Members. Id. at ¶ 38. This allocation formula considers that

Settlement Class Members worked different amounts of overtime hours on a weekly basis, and, if

they prevailed, would be entitled to different amounts of damages. This formula for distribution of

the Net Settlement Fund based on Qualifying Workweeks is similar to those found to be fair and

reasonable in similar cases, and accordingly warrants approval.

16. Furthermore, the formula takes into account that many of these Settlement Class

Members also had previously considered and turned down offers of judgment served on them by

TLT, at the risk that costs would be taxed against Plaintiffs if the amount finally obtained was not

more favorable than the unaccepted offer. See Rule 68(d). The Settlement Agreement provides

Settlement Class Members with more money than was offered by the TLT Defendants in their

offers of judgment (Settlement Agreement ¶ 37(b)(iii)), and also provides that 16 Settlement Class

Members who previously accepted their offers of judgment will be entitled to the difference

between this proposed settlement and the amounts they accepted, in light of the fact that the Court’s

orders only dismissed their claims against TLT. See Dkt. Nos. 50, 111, 114 (Orders entering Partial

Judgment pursuant to Rule 54(b) in favor of Opt-In Plaintiffs and against Defendant TL

Transportation).2

17. Pursuant to the terms of the Settlement Agreement, payment of the settlement

awards to Eligible Class Members will be made within thirty (30) days after the Effective Date or

as soon as reasonably practicable. Settlement checks will be valid and negotiable for a period of

180 days from the date of their issuance. The entirety of the Net Settlement Fund will be disbursed

2 TLT provided offers of judgment to 186 Eligible Class Members. Of those Eligible Class Members, 170 rejected TLT’s offers and their calculated minimum settlement awards were more than the offers of judgment. On average, the awards were 26% more than the offers of judgment, the average difference being $1,867.14


7

to all Eligible Class Members. If any monies remain in the Qualified Settlement Fund at the end

of the 180-day check-cashing period, those monies shall be paid to Philadelphia Legal Assistance,

the Parties’ agreed-upon cy pres recipient, subject to the Court’s approval. There will be no

reversion of any portion of the funds to Defendants.

18. Settlement Administrator will also distribute the Settlement Awards and coordinate

tax administration. The Settlement Administrator has agreed to perform administration duties for

an amount not to exceed $25,000.00.

19. The Settlement release provisions are limited to wage and hour claims that occurred

prior to April 15, 2017, and Settlement Class Members will not release their FLSA claims unless

they cash or deposit their settlement check. The Settlement contains no confidentiality or

indemnification provisions, nor any prohibitions on future employment. See generally Settlement

Agreement.

20. The Settlement is fair, reasonable and extremely beneficial to the members of the

Settlement Class. The Settlement Agreement offers the Class significant advantages over

continued prosecution of their case against Defendants: members of the Settlement Class will

receive significant financial compensation and will avoid the risks inherent in the continued

prosecution of this case, in which Defendant asserts various defenses to its liability. In exchange,

the Settlement Agreement contains a release of all FLSA and state wage and hour claims for

unpaid overtime wages and liquidated or other damages from March 8, 2014 through April 15,

2017. No Eligible Class Member shall be deemed to release an FLSA claim unless he/she cashes

his/her Settlement Award check.

21. Settlement checks will be valid and negotiable for a period of 180 days from the

date of their issuance. Only after the 180-day check-cashing period has expired will the remaining


8

monies will be paid to the Parties’ agreed-upon cy pres recipient, Philadelphia Legal Assistance,

designated in the Settlement Agreement, and subject to the Court’s approval. Philadelphia Legal

Assistance is a non-profit organization which provides free civil legal services to low-income

residents of Philadelphia. One important purpose of Philadelphia Legal Assistance is to provide

free employment-related legal services to economically disadvantaged individuals, such as the

Pennsylvania Farmworker Project which represents Pennsylvania migrant workers in FLSA and

other actions under federal and state worker-protection laws.3 Further, a Pennsylvania organization

is proper since a substantial number of Settlement Class Members worked in Pennsylvania.

Service Awards to Named Plaintiffs

22. Defendants have agreed to pay a service award of $15,000.00 to each of Named

Plaintiffs Tyhee Hickman and Shanay Bolden, and $2,500.00 to Named Plaintiff O’Donald Henry,

for their efforts in bringing and prosecuting this matter, and in addition, for their general release

of all waivable claims against Defendants arising out of their employment. Subject to Court

approval, these amounts will be paid to Plaintiffs from the Gross Settlement Amount and shall be

in addition to their recovery of compensation towards alleged underpaid overtime by their

participation as an Eligible Class Member who will receive a Settlement Award.

23. The proposed additional payment is justified by the benefits that Plaintiffs’ diligent

efforts have brought to the Settlement Class Members. Plaintiffs took the significant risk of coming

forward to represent the interests of their fellow employees. Plaintiffs worked with Class Counsel,

providing background information about their employment, about Defendants’ policies and

practices, and about the allegations in this lawsuit. Plaintiff Hickman and Bolden provided integral

3 See Philadelphia Legal Assistance, Migrant Farmworker Legal Problems,https://www.philalegal.org/taxonomy/term/33 (last visited Jan. 29, 2020).


9

assistance to Class Counsel in the prosecution of this class and collective action lawsuit against

Defendants. They specifically assisted by: (1) providing the documents and input necessary for

drafting each Complaint; (2) consulting with Class Counsel in connection with discovery demands,

critical motions, and deposition preparation on a routine basis; (3) preparing and executing

declarations; (4) reviewing their offers of judgement served by Defendant TLT; and (5) not

withdrawing as a Named Plaintiff as this class and collective action lawsuit became subject to

national media coverage regarding Defendants’ alleged delivery practices. Plaintiffs Hickman and

Bolden also participated at each mediation (Plaintiff Hickman in person at the first two and then

telephonically at the third mediation, and Plaintiff Bolden telephonically at all three mediations).

24. Plaintiff Henry similarly provided critical assistance to Class Counsel. Plaintiff

Henry provided Class Counsel with critical insights regarding the alleged deficits with Defendant

TLT’s payroll data produced, participated in multiple interviews with Class Counsel regarding his

experiences as a Delivery Associate, took a personal risk to represent New Jersey Class Members,

and rejected an offer of judgement served by Defendant TLT that was hard to resist during the

holiday season when his expenses exceeded his earnings.

25. The smaller service award allotted to Plaintiff Henry simply reflects the shorter

length of time that he has served as a Named Plaintiff which began with Plaintiffs’ filing of the

Third Amended Complaint on September 16, 2019.

26. These individuals work in an industry in which workers are largely fungible, and

they bravely took the risk to step forward on behalf of their fellow workers, knowing that their

names would be on a public docket available through an internet search, and knowing that

prospective employers might take their participation in such a lawsuit in consideration when

making hiring decisions. Despite this, Plaintiffs risked their reputation in the community and in


10

their field of employment in order to participate in this case on behalf of the Class.

27. For these reasons, the service award payments of $15,000 to each of Named

Plaintiffs Tyhee Hickman and Shanay Bolden, and $2,500 to Named Plaintiff O’Donald Henry

should be finally approved as fair and reasonable.

Settlement Administration

28. The Angeion Group (“Angeion”) was retained as Settlement Administrator to

distribute the Notice, Settlement Awards and coordinate tax administration. Angeion has agreed

to perform administration duties for an amount not to exceed $25,000.

29. The response to the settlement from Class Members has been overwhelmingly

positive. Class Counsel and Defendants’ Counsel were responsible for receiving objections and

the Settlement Administrator was responsible for receiving requests for exclusion from the

Settlement. As of the date of this filing, no Settlement Class Member has objected and only

one Class Member has requested to be excluded from the settlement.

The Settlement is an Excellent Result for the Class

30. Plaintiffs believe that the Settlement is an excellent result for the members of the

Settlement Class. Defendants were prepared to vigorously defend this action by asserting a number

of defenses to liability, and dispute that the claims presented were appropriate for class certification

or FLSA collective action treatment. While the Court had already ruled on liability in granting

Plaintiffs’ Motion on the Pleadings (which the Court converted into a Motion for Summary

Judgment) holding that unpaid wages were owed where a settlement Class Member worked more

than forty hours per week—the Parties vigorously disputed a number of legal and factual issues

that would have impacted the case going forward, including, but not limited to the following:


11

1) the amount of time that Delivery Associates spent performing their work;4

2) whether damages should be paid at a half-time rate or a time-and-a-half rate

3) whether Defendants would be able to meet their burden of demonstrating that the TL Defendants’ unlawful pay system was taken in good faith with reasonable grounds for their belief that they were complying with the FLSA pursuant to 29 U.S.C. § 216(b) such that they would avoid the imposition of liquidated damages;

4) whether Amazon would be held liable for the alleged pay violations of TLT;

5) whether the Court would certify a class action under Rule 23 or grant final certification of a collective action under the FLSA; and

6) whether Plaintiffs and/or Defendants would appeal myriad legal or factual determinations, including class/collective action treatment, liability, and damages.

As a result, continued litigation would require significant factual development and any verdict at

trial could be delayed based on appeals by Defendants.

31. Among the risks particular to this case, first, there was a risk that Plaintiffs would

not succeed in maintaining a collective or class through trial. Accordingly, the risks and costs of

continued litigation are likely to be much higher than those of a typical single party case. Second,

a trial on the merits would involve significant risks for Plaintiffs as to both the liability of joint

employment by Amazon as well as the appropriate rate and calculation of damages, and any verdict

at trial would be delayed by appeals by Defendants. Third, the FLSA provision at issue was hotly

contested, with each side citing factual and legal support in its favor: Plaintiffs argued that, because

Defendant TLT admitted that Delivery Associates were paid other forms of compensation for

4 Because the TL Defendants did not keep accurate time records of the time that Delivery Associates worked during the relevant time period, the Parties had to use various assumptions to estimate time worked for purposes of calculating damages. Both parties modeled these damages by analyzing Amazon’s delivery data, which includes various times when the Delivery Associates scan and/or deliver packages to Amazon customers. The parties engaged in numerous meet and confer calls so that Class Counsel could understand the data and could engage in fully informed settlement negotiations. As part of their exposure analysis, Class Counsel’s in house data analyst matched payroll records produced by TLT with the delivery data produced by Amazon, and built in various factual assumptions on time worked in addition to the time that was captured by Amazon’s delivery data. Ultimately the Gross Settlement Amount that was negotiated and agreed upon represents a compromised resolution on this issue.


12

services, the exception to the general rule that overtime must be paid at a time-and-a-half rate as

set forth in 29 C.F.R. § 778.112 would not apply. See 29 C.F.R. § 778.112 (permitting overtime to

be paid at a half time rate where an employee is paid a flat sum for a day’s work or for doing a

particular job, without regard to the number of hours worked in the day or at the job, and if he

receives no other form of compensation for services). In response, Defendants raised various

factual and legal arguments disputing that damages would be ordered to be paid at a time-and-a-

half rate. Ultimately the Gross Settlement Amount that was negotiated and agreed upon represents

a compromised resolution on this central issue.

32. In this case, the proposed Settlement was reached after contested litigation,

extensive factual discovery and a series of serious arm’s-length negotiations through the ADR

process at various junctures over the course of two years. Specifically, the Settlement was reached

only after (1) the exchange of substantial documents and records, including electronic payroll

records showing days worked and all forms of compensation received by Plaintiffs and Class

Members during the relevant time periods; (2) multiple pre-settlement conference calls; (3)

multiple depositions; (4) extensive briefing and oral argument on a motion for summary judgment;

(5) preparation and exchange of mediation statements; and (6) three in person-mediations in

Philadelphia, Pennsylvania before experienced mediators, which included additional extensive

arm’s-length negotiations between counsel for the Parties both before and after the mediation.

33. For example, following the first two unsuccessful ADR attempts, Plaintiffs filed a

partial judgment on the pleadings regarding Defendant TLT’s payment scheme. The Court after

briefing and oral argument converted the motion to a partial motion for summary judgment. (Dkt.

Nos. 67, 69.) The Court granted Plaintiffs’ motion on August 16, 2018. (Dkt. No. 81.) In addition,

litigation of this matter was complex and laborious. The Parties stipulated to notice after the


13

Plaintiffs filed their motion for conditional certification and to facilitate notice pursuant to 29

U.S.C.§ 216(b) (Dkt. Nos. 46-64), and Plaintiffs then oversaw the notice administration process in

which notice was distributed on August 10, 2018 to 757 individuals. (Dkt. Nos. 13, 83, 85, 87-90,

94-101, 107-110, 115). Plaintiffs also filed two Amended Complaints, responded to a Motion to

Dismiss, conducted three (3) depositions of Defendant TLT’s representative, and responded to

hundreds of offers of judgment from Defendant TLT. Prior to the mediations, the Parties engaged

in multiple pre-mediation meet and conference calls. In preparation for these mediations, Class

Counsel prepared and provided a comprehensive damages analysis to Defendants’ counsel. There

was sufficient investigation and discovery conducted in this matter to allow counsel and the Court

to act intelligently concerning the settlement of the claims.

34. Further, because TLT was not able to produce complete time records for Delivery

Associates during the relevant time period due to changes in its timekeeping programs, the Parties

had to use various assumptions to estimate time worked for purposes of calculating damages. Both

Parties modeled these damages by analyzing Amazon’s delivery data, which includes various

times when the Delivery Associates scan and/or deliver packages to Amazon customers. The

Parties engaged in numerous meet and confer calls so that Class Counsel could understand the data

and could engage in fully informed settlement negotiations.

Dated: February 10, 2020 /s/ Sarah R. Schalman-BergenSarah R. Schalman-Bergen


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

TYHEE HICKMAN, SHANAY BOLDEN, and O’DONALD HENRY, on behalf of themselves and others similarly situated,

Plaintiffs,

v. TL TRANSPORTATION, LLC, SCOTT FOREMAN, HERSCHEL LOWE, AMAZON.COM LLC, and AMAZON LOGISTICS, INC., Defendants.

Civil Action No: 2:17-CV-01038-GAM

DECLARATION OF BRIAN S. DEVERY

I, Brian Devery, pursuant to section 1746 of title 28 of the United States Code, declare as

follows:

1. I am a Project Manager with Angeion Group (“Angeion”), the settlement

administrator retained in this matter. Angeion’s office is located at 1650 Arch Street, Suite 2210,

Philadelphia, PA 19103. I am over 21 years of age and am not a party to this action. I have

personal knowledge of the facts set forth herein and, if called as a witness, could and would testify

competently thereto.

2. Angeion was appointed by the Court to serve as Claims Administrator and to among

other tasks, send Notice to class members via USPS; respond to Class Member inquiries; and

perform other duties as specified in the Settlement Agreement, following the Court’s June 1, 2018

Order Granting Plaintiffs’ Unopposed Motion for Preliminary Approval of the Settlement

Agreement. Angeion has agreed to administer the Settlement Agreement for no more than Twenty-

Five Thousand ($25,000) Dollars for its services.

3. Angeion has administrated class action settlements involving millions of class

members. A representative list of the settlements administered by Angeion is available at


2

http://www.angeiongroup.com/cases.htm. Through the administration of the settlements

referenced above, Angeion has received, processed and secured data from defendants and other

sources. Angeion has analyzed settlement class member data including performing deduplication,

National Change of Address Searches (“NCOA”) and skip traces. Angeion has successfully

implemented noticing campaigns involving direct mail notice, email notice, text noticing, printed

media and digital media for millions of potential class members. Further, Angeion has analyzed

and reported on class member data obtained through claim forms submitted via mail and through

online claims filing, class member correspondence, objections to settlements, exclusion requests

and other means. Angeion is experienced in the application of complex claim calculations and,

where applicable, tax withholding and reporting, as required by federal, state, and local taxing

authorities, as well as in reviewing settlement agreements and court orders. Angeion has been

responsible for the management of Qualified Settlement Funds and has served as escrow agent for

numerous settlement distributions

4. Angeion is not related to or affiliated with any of the attorneys comprising Class

Counsel or counsel for Defendants.

Class List

5. On or about December 5, 2019, Angeion received an Excel spreadsheet containing

names, mailing addresses, and other pertinent information for members of the class. Angeion

reviewed the class list, assigned each class member a unique identification number, reviewed the

list for completeness of address information and formatted the contents for entry into Angeion’s

database.

Dissemination of the Settlement Notice

6. On or about December 9, 2019, Angeion caused the mailing addresses information

for the 755 Class Members to be updated utilizing the NCOA database which provides updated

addresses for all individuals who have moved during the previous four years and filed a change of

address with the United States Postal Service (“USPS”).


3

7. On December 9, 2019, Angeion caused the Notice of Settlement to be sent via the

USPS to 755 Class Members. A copy of the mailed Notice of Settlement is attached hereto as

Exhibit “A”.

8. On December 9, 2019, Angeion also caused the Notice of Settlement to be sent via

email to 498 Class Members for which the class data contained a valid email address. A copy of

the email Notice of Settlement is attached hereto as Exhibit “B”.

9. During the period from the initial notice through February 5, 2020, 30 Notices were

returned to Angeion by the USPS with a forwarding address.

10. During the period from the initial notice through February 5, 2020, a total of 138

Notices were returned to Angeion by the USPS without forwarding addresses. Angeion conducted

skip traces utilizing Lexis Nexis, a nationally recognized address search firm.1

11. New addresses were identified for 80 of the undeliverable notices that were skip

traced. The Class List and database were updated with the new address information and a Notice

was re-mailed to these 80 Class Members.

12. Of all the re-mailed Notices, 10 were returned to Angeion as undeliverable a second

time. New addresses were located for these class members either as provided by counsel or

through the skip trace process and these Notices were mailed for a third time. One has been

returned to Angeion as undeliverable a third time.

13. Of the 24 undeliverable Notices of which no updated address was located via the

skip trace process or via updates from the parties, 11 were sent a Notice of Settlement via email

1 Lexis Nexis combines numerous public records and publicly available sources, which contains nationwide person locator, authentication and verification information for approximately 400 million unique individuals based in the US and territories. Its sources include national credit reporting companies header databases, current and historic address files, white page phone publisher data, an Electronic Directory Assistance type database, Social Security death records from the Social Security Administration, numerous public record sources, including motor vehicle registrations, driver’s license databases, voter registration databases, public license data and property ownership records, and data collected by marketing, registrations and warranty card aggregators.


4

which did not bounce. Therefore, the total number of undeliverable Notices, including notice by

email, is 13.

14. On February 4, 2020 Angeion was informed of the addition of a single class

member. Angeion added this class member to its database and a Notice was emailed on February

4, 2020 as well as mailed on February 6, 2020.

Requests for Exclusion and Objections

15. As of the date of this Declaration, Angeion has received one request for exclusion,

attached hereto as Exhibit “C”, and no objections.

Distribution and Remaining Tasks

16. Angeion will continue to reply to Class Member inquiries, keep the parties apprised

of any additional exclusion requests or objections received as well as perform the other

administrative duties as defined in the Settlement Agreement or as directed by the Parties and/or

the Court.

17. Upon the issuance of a final order form this Court and the achievement of the

benchmarks set forth in the Settlement Agreement, Angeion will cause the distribution of

Settlement benefits to take place in accordance with the terms of the Settlement Agreement or as

otherwise directed by this Court.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct to the best of my knowledge.

Executed this 6th day of February 2020 at Oakdale, NY.

Brian Devery

Brian Devery


Exhibit A


IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

---------------------------------------------------------------- TYHEE HICKMAN, SHANAY BOLDEN, and : O’DONALD HENRY, on behalf of : themselves and others similarly situated, : Civil Action No.: 2:17-CV-01038-GAM :

Plaintiffs, : : v. : : : TL TRANSPORTATION, LLC, SCOTT : FOREMAN, HERSCHEL LOWE, : AMAZON.COM LLC, and AMAZON : LOGISTICS, INC., :

: Defendants. :

----------------------------------------------------------------

NOTICE OF SETTLEMENT

PLEASE READ THIS NOTICE CAREFULLY. You received this Notice of Settlement (“Notice”) either because you: 1) previously completed an Opt-In Consent Form to join this case; or 2) you did not previously join this case but the records of Amazon.com, LLC, Amazon Logistics, Inc., TL Transportation LLC, Scott Foreman, and Herschel Lowe (“Defendants”) show you performed work as a Delivery Associate who was paid by Defendant TL Transportation LLC (“Defendant TLT”) to deliver packages to Amazon customers in the United States at any time between March 8, 2014, and April 15, 2017. 1. Why Should You Read This Notice? This Notice explains your right to share in the monetary proceeds of this Settlement, exclude yourself (“opt out”) of the Settlement, or object to the Settlement. The United States District Court for the Eastern District of Pennsylvania has preliminarily approved the Settlement as fair and reasonable. The Court will hold a Final Approval Hearing on February 18, 2020 at 10 a.m., before the Honorable Gerald A. McHugh in Courtroom 913 of the James A. Byrne U.S. Courthouse, 601 Market Street, Philadelphia, PA 19106. 2. What Is This Case About? This lawsuit alleges that individuals who performed work as delivery associates, paid by Defendant TLT to deliver packages to Amazon customers, were not paid overtime compensation to which they were entitled under the law when they worked more than forty (40) hours per week. Defendants deny that these individuals were entitled to any overtime compensation or other compensation beyond the compensation they received and deny any wrongdoing and any and all liability and damages to anyone with respect to the alleged facts or causes of action asserted in the lawsuit. The Parties have concluded that it is in their best interest to resolve and settle the lawsuit by entering into a Settlement Agreement.


2

3. What Are the Terms of the Settlement?

Defendant TLT has agreed to pay One Million Eight Hundred Thousand Dollars and Zero Cents ($1,800,000.00) to settle this lawsuit (“Gross Settlement Amount”). Deductions from this amount will be made for attorneys’ fees and costs for Class Counsel (see below), settlement administration costs (up to $25,000), and service awards in the amounts of Fifteen Thousand Dollars ($15,000) to Plaintiffs Tyhee Hickman and Shanay Bolden, and Two Thousand Five Hundred Dollars ($2,500) to O’Donald Henry, in recognition of their service to the Settlement Class. After deductions of these amounts, what remains of the Gross Settlement Amount (the “Net Settlement Amount”) will be available to pay monetary Settlement Awards to (i) Named Plaintiffs; (ii) Opt-In Plaintiffs, and (iii) all Settlement Class Members who do not timely and validly exclude themselves from the Settlement(collectively, “Eligible Class Members”).

Named Plaintiffs and all Eligible Class Members will be eligible to receive a monetary award from the Net Settlement Amount.

4. How Much Can I Expect to Receive?

All Eligible Class Members will receive a pro rata share of the Net Settlement Amount based on the total number of workweeks that the Eligible Class Member were paid by Defendant TLT to deliver packages for Amazon in the United States at any time between March 8, 2014, and April 15, 2017 (the “Class Period”).

Your total estimated settlement payment is approximately $ (less applicable taxes and withholding. This amount is an estimated amount, and your final settlement payment is expected to differ from this amount and will be calculated by the formula set forth below:

First, the amount of $100 per Eligible Class Member will be deducted from the Net Settlement Amount prior to the determination of pro rata individual settlement shares and allocated to each Eligible Class Member so that each Eligible Class Member receives at least $100 in exchange for their release in this Settlement Agreement.

Second, in addition to the $100 payment set out above, Eligible Class Members shall receive a pro rata portion of the Net Settlement Amount as follows:

1. For each week during which the Eligible Class Member worked four or more days during the applicable Class Periods, he or she shall be eligible to receive a pro rataportion of the Net Settlement Amount (“Qualifying Workweek”). Each Qualifying Workweek will be equal to one (1) settlement share.

2. The total number of settlement shares for all Eligible Class Members will be added together and the resulting sum will be divided into the Net Settlement Amount to reach a per share dollar figure. That figure will then be multiplied by each Eligible Class Member’s number of settlement shares to determine the Eligible Class Member’s Settlement Award.

3. Eligible Class Members who previously accepted offers of judgment will have the amount paid pursuant to the accepted offers of judgment subtracted from their Settlement Award, and the balance shall be redistributed to the Eligible Class Members who did not accept offers of judgment on a pro rata basis and added to their Settlement Awards. In no event shall an Eligible Class Member’s Settlement Award be reduced to less than the $100 base payment.


3

All Settlement Award determinations and Qualifying Workweeks will be based on Defendants’ data that was produced in this litigation. If you have questions about your Qualifying Workweeks, you may contact the Settlement Administrator. The Settlement Administrator’s contact information can be found in Section 10 of this Notice. Fifty percent (50%) of each Eligible Class Members’ Settlement Award shall be treated as back wages, and fifty percent (50%) shall be treated as non-wage penalties and/or liquidated damages. The portion allocated to claims for unpaid overtime and other wage-related damages will be subject to all required employee payroll taxes and deductions, and Defendant TLT will pay the employer side of the FICA and FUTA taxes separate from the Settlement Award payment. The portion allocated to liquidated damages shall be characterized as non-wage income and will be reported on an IRS Form 1099.

If you receive a Settlement Award, you will have 180 days to cash the check that will be sent to you. If at the conclusion of the 180-day check void period set forth above, there are any monies remaining, no amount of Settlement Awards attributable to Eligible Class Members who worked in Pennsylvania, Maryland, or New Jersey shall revert to Defendant TLT, and any amount of uncashed checks from Eligible Class Members in Pennsylvania, Maryland, and New Jersey shall be paid to the Parties’ agreed upon cy pres recipient, Philadelphia Legal Assistance, subject to the Court’s approval. Uncashed checks from Eligible Class Members who worked outside of Pennsylvania, Maryland, and New Jersey shall be returned to Defendant TLT, and those Eligible Class Members shall not release any claims against Defendants.

It is your responsibility to keep a current address on file with the Settlement Administrator to ensure receipt of your monetary Settlement Award. If you fail to keep your address current, you may not receive your Settlement Award. 5. What Are The Releases? If the Court grants final approval of the Settlement, the lawsuit will be dismissed with prejudice against Defendants and, upon final approval of the Settlement Agreement, Named Plaintiffs and Eligible Class Members shall and hereby do release and discharge Defendants and all Releasees finally, forever and with prejudice of any and all state law claims for unpaid overtime, state wage and hour, and related common law claims based on the facts alleged in the Complaint against Defendants that accrued during their work with Defendants during the Class Period, and related claims for penalties, interest, liquidated damages, attorneys’ fees, costs, and expenses. However, only Eligible Class Members who cash or deposit their Settlement Award check will be deemed to have released their FLSA claim. Defendants agree that participation in the settlement and release of the Eligible Class Members’ Released Claims may not be used to assert collateral estoppel, res judicata, waiver or any other claim preclusion of FLSA claims not included in the Eligible Class Members’ Released Claims with respect to individuals who did not specifically release those FLSA claims in this Agreement.

6. What Are My Rights?

Do Nothing: If you are a Settlement Class Member, and you do nothing, you will receive a Settlement Award, and you will be bound by the Settlement including its release provisions, except that you will not release your FLSA claims unless you cash or deposit the Settlement Award check.

Opt-Out of State Law Claims: If you are a member of the Settlement Class who worked in Pennsylvania, Maryland, or New Jersey and you do not wish to be bound by the Settlement of your state law claims, you must submit a written exclusion from the Settlement (“opt-


4

out”), postmarked by February 7, 2020. The written request for exclusion must contain your full name, address, telephone number, email address (if applicable), last four digits of your social security number, and must be signed individually by you. No opt-out request may be made on behalf of a group. The opt-out request must be sent by mail to the Settlement Administrator.

Class Action Opt-Outs ATTN: TLT Settlement

PO BOX 58220 Philadelphia, PA 19102

Any person who worked in Pennsylvania, Maryland, or New Jersey and requests exclusion (opts out) of the settlement will not be entitled to any Settlement Award and will not be bound by the Settlement Agreement or have any right to object, appeal or comment thereon.

Object to Settlement of State Law Claims: If you are a member of the Settlement Class who worked in Pennsylvania, Maryland, or New Jersey and wish to object to the Settlement of your state law claims, you must submit a written statement objecting to the Settlement. The statement must state the factual and legal grounds for your objection to the settlement. Your objection must state your full name, address, telephone number, and email address (if applicable), and must be signed by you. Any objection must be mailed to:

Sarah R. Schalman-Bergen BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, Pennsylvania 19103 Ryan A. Hancock WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th Floor Philadelphia PA, 19103

Jeffrey I. Pasek COZEN O’CONNOR One Liberty Place 1650 Market Street Philadelphia, PA 19103 Richard G. Rosenblatt MORGAN, LEWIS & BOCKIUS 502 Carnegie Center Princeton, NJ 08540-6241

If you are a member of the Settlement Class who worked in Pennsylvania, Maryland, or New Jersey and submit a written objection to the state law claims, you may also, if you wish, appear at the Final Approval Hearing to discuss your objection with the Court and the parties to the Lawsuit. Your written objection must state whether you will attend the Final Approval Hearing, and your written notice of your intention to appear at the Final Approval Hearing must be filed with the Court, at the address located in Question 1 above, and served upon Class Counsel and Defendant’s Counsel on or before the Notice Deadline, February 7, 2020. To be heard at the Final Approval Hearing you must also not have opted out of the Settlement. If you wish to object to the Settlement but fail to return your timely written objection in the manner specified above, you shall be deemed to have waived any objection and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement. The postmark date of mailing to Class Counsel and Defendant’s Counsel shall be the exclusive means for determining that an objection is timely mailed to counsel. Objections shall only be considered if the Settlement Class Member has not opted out of the Settlement. 7. Can Defendants Retaliate Against Me for Participating in this Lawsuit? No. Your decision as to whether or not to participate in this Lawsuit will in no way affect your work or employment with Defendants or future work or employment with Defendants. It is unlawful for


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Defendants to take any adverse action against you as a result of your participation in this Lawsuit. In fact, Defendants encourage you to participate in this Settlement. 8. Who Are the Attorneys Representing Plaintiffs and the Settlement Class? Plaintiffs and the Settlement Class are represented by the following attorneys acting as Class Counsel: Sarah R. Schalman-Bergen Camille Fundora Rodriguez BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, Philadelphia 19103 Telephone: (215) 875-3033 Email: [email protected]

Ryan A. Hancock WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th Floor Philadelphia PA, 19103 Telephone: (215) 656-3679 Email: [email protected]

9. How Will the Attorneys for the Settlement Class Be Paid? Class Counsel will be paid from the Gross Settlement Amount of $1,800,000.00. You do not have to pay the attorneys who represent the Settlement Class. The Settlement Agreement provides that Class Counsel will receive attorneys’ fees of up to one-third (1/3) of the Gross Settlement Amount ($600,000) plus their out-of-pocket costs, not to exceed Forty Thousand dollars ($40,000). Class Counsel will file a Motion for Attorneys’ Fees and Costs with the Court. The amount of attorneys’ fees and costs awarded will be determined by the Court at the Final Approval Hearing.

10. Where can I get more information? If you have questions about this Notice or the Settlement, or if you did not receive this Notice in the mail and you believe that you are or may be a member of the Settlement, you should contact the Settlement Administrator at:

TLT Settlement Administrator 1650 Arch Street, Suite 2210

Philadelphia, PA 19103

This Notice is only a summary. For more detailed information, you may review the Settlement Agreement, containing the complete terms of the proposed Settlement, which is available through the Settlement Administrator and publicly accessible and on file with the Court.

PLEASE DO NOT WRITE OR TELEPHONE THE COURT OR TO DEFENDANTS FOR INFORMATION ABOUT THE PROPOSED SETTLEMENT OR THIS LAWSUIT.


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N d201A

TLT *T


Exhibit B


1

From: TLT Settlement Administrator <[email protected]>Sent: Monday, December 9, 2019 4:45 PMTo:Subject: [External] Notice of Class Action Settlement – Hickman v. TL Transportation

[ External Email ]

To: BD

Notice ID: XYZ123456

NOTICE OF SETTLEMENT

You received this Notice of Settlement (“Notice”) either because you 1) previously completed an Opt-In Consent Form to join this case; or 2) you did not previously join this case but the records of Amazon.com, LLC, Amazon Logistics, Inc., TL Transportation LLC, Scott Foreman, and Herschel Lowe (“Defendants”) show you performed work as a Delivery Associate who was paid by Defendant TL Transportation LLC (“Defendant TLT”) to deliver packages to Amazon customers in the United States at any time between March 8, 2014, and April 15, 2017.

A Court authorized this notice. This is not a solicitation.

Read this notice carefully, as it affects your rights.

Why Should You Read This Notice? This Notice explains your right to share in the

monetary proceeds of this Settlement, exclude yourself (“opt out”) of the Settlement, or

object to the Settlement. The United States District Court for the Eastern District of

Pennsylvania has preliminarily approved the Settlement as fair and reasonable. The Court

will hold a Final Approval Hearing on February 18, 2020 at 10 a.m., before the Honorable

Gerald A. McHugh in Courtroom 913 of the James A. Byrne U.S. Courthouse, 601 Market

Street, Philadelphia, PA 19106.

WHAT IS THE ACTION ABOUT? This lawsuit alleges that individuals who performed work

as delivery associates, paid by Defendant TLT to deliver packages to Amazon customers,

were not paid overtime compensation to which they were entitled under the law when they

worked more than forty (40) hours per week. Defendants deny that these individuals were


2

entitled to any overtime compensation or other compensation beyond the compensation

they received and deny any wrongdoing and any and all liability and damages to anyone

with respect to the alleged facts or causes of action asserted in the lawsuit. The Parties have

concluded that it is in their best interest to resolve and settle the lawsuit by entering into a

Settlement Agreement.

WHAT ARE THE TERMS OF THE SETTLEMENT? Defendant TLT has agreed to pay One

Million Eight Hundred Thousand Dollars and Zero Cents ($1,800,000.00) to settle this

lawsuit (“Gross Settlement Amount”). Deductions from this amount will be made for

attorneys’ fees and costs for Class Counsel (see below), settlement administration costs (up

to $25,000), and service awards in the amounts of Fifteen Thousand Dollars ($15,000) to

Plaintiffs Tyhee Hickman and Shanay Bolden, and Two Thousand Five Hundred Dollars

($2,500) to O’Donald Henry, in recognition of their service to the Settlement Class. After

deductions of these amounts, what remains of the Gross Settlement Amount (the “Net

Settlement Amount”) will be available to pay monetary Settlement Awards to (i) Named

Plaintiffs; (ii) Opt-In Plaintiffs, and (iii) all Settlement Class Members who do not timely and

validly exclude themselves from the Settlement (collectively, “Eligible Class Members”).

Named Plaintiffs and all Eligible Class Members will be eligible to receive a monetary award

from the Net Settlement Amount.

HOW MUCH CAN I EXPECT TO RECEIVE? All Eligible Class Members will receive a pro

rata share of the Net Settlement Amount based on the total number of workweeks that the

Eligible Class Member were paid by Defendant TLT to deliver packages for Amazon in the

United States at any time between March 8, 2014, and April 15, 2017 (the “Class Period”).

Your total estimated settlement payment is approximately (less applicable taxes and

withholding). This amount is an estimated amount, and your final settlement payment is

expected to differ from this amount and will be calculated by the formula set forth below:

First, the amount of $100 per Eligible Class Member will be deducted from the Net

Settlement Amount prior to the determination of pro rata individual settlement shares and

allocated to each Eligible Class Member so that each Eligible Class Member receives at

least $100 in exchange for their release in this Settlement Agreement.

Second, in addition to the $100 payment set out above, Eligible Class Members shall receive

a pro rata portion of the Net Settlement Amount as follows:

1. For each week during which the Eligible Class Member worked four or more days

during the applicable Class Periods, he or she shall be eligible to receive a pro rata


3

portion of the Net Settlement Amount (“Qualifying Workweek”). Each Qualifying

Workweek will be equal to one (1) settlement share.

2. The total number of settlement shares for all Eligible Class Members will be added

together and the resulting sum will be divided into the Net Settlement Amount to

reach a per share dollar figure. That figure will then be multiplied by each Eligible

Class Member’s number of settlement shares to determine the Eligible Class

Member’s Settlement Award.

3. Eligible Class Members who previously accepted offers of judgment will have the

amount paid pursuant to the accepted offers of judgment subtracted from their

Settlement Award, and the balance shall be redistributed to the Eligible Class

Members who did not accept offers of judgment on a pro rata basis and added to

their Settlement Awards. In no event shall an Eligible Class Member’s Settlement

Award be reduced to less than the $100 base payment.

All Settlement Award determinations and Qualifying Workweeks will be based on

Defendants’ data that was produced in this litigation. If you have questions about your

Qualifying Workweeks, you may contact the Settlement Administrator. The Settlement

Administrator’s contact information can be found in Section 10 of this Notice.

Fifty percent (50%) of each Eligible Class Members’ Settlement Award shall be treated as

back wages, and fifty percent (50%) shall be treated as non-wage penalties and/or liquidated

damages. The portion allocated to claims for unpaid overtime and other wage-related

damages will be subject to all required employee payroll taxes and deductions, and

Defendant TLT will pay the employer side of the FICA and FUTA taxes separate from the

Settlement Award payment. The portion allocated to liquidated damages shall be

characterized as non-wage income and will be reported on an IRS Form 1099.

If you receive a Settlement Award, you will have 180 days to cash the check that will be sent

to you. If at the conclusion of the 180-day check void period set forth above, there are any

monies remaining, no amount of Settlement Awards attributable to Eligible Class Members

who worked in Pennsylvania, Maryland, or New Jersey shall revert to Defendant TLT, and

any amount of uncashed checks from Eligible Class Members in Pennsylvania, Maryland,

and New Jersey shall be paid to the Parties’ agreed upon cy pres recipient, Philadelphia

Legal Assistance, subject to the Court’s approval. Uncashed checks from Eligible Class

Members who worked outside of Pennsylvania, Maryland, and New Jersey shall be returned


4

to Defendant TLT, and those Eligible Class Members shall not release any claims against

Defendants.

It is your responsibility to keep a current address on file with the Settlement Administrator to

ensure receipt of your monetary Settlement Award. If you fail to keep your address current,

you may not receive your Settlement Award.

WHAT ARE MY RIGHTS?

Do Nothing: If you are a Settlement Class Member, and you do nothing, you will

receive a Settlement Award, and you will be bound by the Settlement including its

release provisions, except that you will not release your FLSA claims unless you

cash or deposit the Settlement Award check.

Opt-Out of State Law Claims: If you are a member of the Settlement Class who

worked in Pennsylvania, Maryland, or New Jersey and you do not wish to be bound

by the Settlement of your state law claims, you must submit a written exclusion from

the Settlement (“opt-out”), postmarked by February 7, 2020. The written request for

exclusion must contain your full name, address, telephone number, email address

(if applicable), last four digits of your social security number, and must be signed

individually by you. No opt-out request may be made on behalf of a group. The opt-

out request must be sent by mail to the Settlement Administrator.

Class Action Opt-Outs

ATTN: TLT Settlement

PO BOX 58220


Any person who worked in Pennsylvania, Maryland, or New Jersey and requests exclusion

(opts out) of the settlement will not be entitled to any Settlement Award and will not be bound

by the Settlement Agreement or have any right to object, appeal or comment thereon.

Object to Settlement of State Law Claims: If you are a member of the Settlement

Class who worked in Pennsylvania, Maryland, or New Jersey and wish to object to

the Settlement of your state law claims, you must submit a written statement

objecting to the Settlement. The statement must state the factual and legal grounds

for your objection to the settlement. Your objection must state your full name,


5

address, telephone number, and email address (if applicable), and must be signed

by you. Any objection must be mailed to:

Sarah R. Schalman-Bergen BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, Pennsylvania 19103

Jeffrey I. Pasek COZEN O’CONNOR One Liberty Place 1650 Market Street Philadelphia, PA 19103

Ryan A. Hancock WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th Floor Philadelphia PA, 19103

Richard G. Rosenblatt MORGAN, LEWIS & BOCKIUS 502 Carnegie Center Princeton, NJ 08540-6241

If you are a member of the Settlement Class who worked in Pennsylvania, Maryland, or New

Jersey and submit a written objection to the state law claims, you may also, if you wish,

appear at the Final Approval Hearing to discuss your objection with the Court and the parties

to the Lawsuit. Your written objection must state whether you will attend the Final Approval

Hearing, and your written notice of your intention to appear at the Final Approval Hearing

must be filed with the Court, at the address located in Question 1 above, and served upon

Class Counsel and Defendant’s Counsel on or before the Notice Deadline, February 7, 2020. To be heard at the Final Approval Hearing you must also not have opted out of the

Settlement. If you wish to object to the Settlement but fail to return your timely written

objection in the manner specified above, you shall be deemed to have waived any objection

and shall be foreclosed from making any objection (whether by appeal or otherwise) to the

Settlement. The postmark date of mailing to Class Counsel and Defendant’s Counsel shall

be the exclusive means for determining that an objection is timely mailed to counsel.

Objections shall only be considered if the Settlement Class Member has not opted out of the

Settlement.

CAN DEFENDANTS RETALIATE AGAINST ME FOR PARTICIPATING IN THIS LAWSUIT? No. Your decision as to whether or not to participate in this Lawsuit will in no

way affect your work or employment with Defendants or future work or employment with

Defendants. It is unlawful for Defendants to take any adverse action against you as a result

of your participation in this Lawsuit. In fact, Defendants encourage you to participate in this

Settlement.

WHO ARE THE ATTORNEYS REPRESENTING PLAINTIFFS AND THE SETTLEMENT CLASS? Plaintiffs and the Settlement Class are represented by the following attorneys

acting as Class Counsel:


6

Sarah R. Schalman-Bergen Camille Fundora Rodriguez BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, Philadelphia 19103 Telephone: (215) 875-3033 Email: [email protected]

Ryan A. Hancock WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th Floor Philadelphia PA, 19103 Telephone: (215) 656-3679 Email: [email protected]

HOW WILL THE ATTORNEYS FOR THE SETTLEMENT CLASS BE PAID? Class Counsel

will be paid from the Gross Settlement Amount of $1,800,000.00. You do not have to pay

the attorneys who represent the Settlement Class. The Settlement Agreement provides that

Class Counsel will receive attorneys’ fees of up to one-third (1/3) of the Gross Settlement

Amount ($600,000) plus their out-of-pocket costs, not to exceed Forty Thousand dollars

($40,000). Class Counsel will file a Motion for Attorneys’ Fees and Costs with the Court. The

amount of attorneys’ fees and costs awarded will be determined by the Court at the Final

Approval Hearing.

WHERE CAN I GET MORE INFORMATION? If you have questions about this Notice or the

Settlement, or if you did not receive this Notice in the mail and you believe that you are or

may be a member of the Settlement, you should contact the Settlement Administrator at:

TLT Settlement Administrator

1650 Arch Street, Suite 2210


This Notice is only a summary. For more detailed information, you may review the

Settlement Agreement, containing the complete terms of the proposed Settlement, which is

available through the Settlement Administrator and publicly accessible and on file with the

Court.

PLEASE DO NOT WRITE OR TELEPHONE THE COURT OR TO DEFENDANTS FOR INFORMATION ABOUT THE PROPOSED SETTLEMENT OR THIS LAWSUIT.

Unsubscribe

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Exhibit C


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