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Filing # 171720346 E-Filed 04/25/2023 10:18:06 AM
THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
SHARLEY BASS, on behalf of
Herself and all others similarly
Situated,
Plaintiff, CASE NO.:
v.
MED-CALL HEALTHCARE, INC., and
RISHER DUMPIT, Individually,
Defendants.
_________________________/
PLAINTIFF’S UNOPPOSED MOTION FOR
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
COMES NOW, Plaintiff Sharley Bass (“Plaintiff”), on her own behalf and on behalf of the
settlement class defined below, and, pursuant to Florida Rule of Civil 1.220, files her Unopposed
Motion for Preliminary Approval of Class Action Settlement, respectfully stating as follows:
The parties have reached a settlement in this Fair Labor Standards Act (“FLSA”) and
Florida law case that, if approved, would resolve this action by providing monetary relief to a
settlement class consisting of approximately 296 Florida-based employees. The Settlement
Agreement is attached hereto as Exhibit 1.
Plaintiff moves the Court to preliminarily approve the proposed settlement; to conditionally
certify a class, solely for purposes of settlement; to appoint Plaintiff’s counsel as Class Counsel
and to appoint Plaintiff as Class Representative; to approve the proposed notice to the settlement
class and the procedures for providing notice; to schedule a final fairness hearing; and to set
procedures and deadlines for opting out, objecting, and filing a motion for an award of attorneys’
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fees, expenses, and an incentive award. A Proposed Order is attached to the Settlement Agreement
as Exhibit A.
I. THE CLAIMS, PROCEEDINGS, AND SETTLEMENT
On January 31, 2022, Named Plaintiff, Sharley Bass, filed a Class Action Complaint styled
Sharley Bass, on behalf of herself and on behalf of all others similarly situated, v. Med-Call
HeaalthCare, Inc., and Risher Dumpit, Indiv., in the United States District Court, Middle District
of Florida (the “Action”), asserting claims against Defendants under the Fair Labor Standards Act
(“FLSA”) and Florida law on behalf of herself and on behalf of a proposed class of similarly
situated individuals. The Parties have since reached an agreement, including that the Parties will
seek approval of their settlement in Florida state court. If approved by this Court, the settlement
will resolve all claims of the Named Plaintiff and each of the approximately 296 putative class
members in Florida.
The Action generally alleges that Defendant violated the FLSA and Florida law by failing
to comply with the FLSA’s mandate for overtime premiums, including correctly calculating the
overtime rate paid by inclusion of hourly stipends, as well as compensable on-call and travel time.
Specifically, the Action alleges that Defendant failed to pay for on-call time, failed to pay for travel
time, and failed to pay for all hours over forty worked per week at the correct premium rate
including paid hourly stipends and, as a result, Defendant is in violation of 29 U.S.C. § 207 and
Florida law.
The Action was originally filed in the United States District Court for the Middle District
of Florida, Tampa Division. Thereafter, the parties extensively litigated this matter, engaged in
substantive informal discovery and agreed to mediate on a class-wide basis.
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The parties then engaged in settlement discussions, including an all-day mediation with an
experienced class action mediator. Following mediation, and only after weeks of arm’s length
settlement discussions between highly experienced counsel on both sides, the Parties reached an
agreement in principle (“Settlement”) to resolve this Action, on a class basis, under the following
key terms:
• The Parties agreed to resolve a Settlement Class consisting of “All nurses,
nurse assistants or other personnel working for Med-Call within the State
of Florida during the Class Period.” The Class Period is defined as “three
(3) years prior to the date of filing the Lawsuit, or from January 31, 2019 to
January 31, 2022, until the date of preliminary approval”;
• Defendant shall deposit with the Administrator a Settlement Fund in the
amount of $350,000.00 (“Settlement Fund”). That amount will be allocated
among the approximately 296 class members as claims paid, less the costs
of settlement administration, Plaintiff’s General Release Payment, and
Plaintiff’s counsel’s litigation costs. 1 Individual settlement amounts for
class members will be allocated based on the number of pay periods and/or
hours worked by each class member during the Class Period and evenly
allocated for tax purposes between back wages and non-wage liquidated
damages;
• Defendants shall separately pay, outside of the Settlement Fund, the
payroll/withholding taxes due on the wage portion of the individual
settlement payments that shall be paid from the Maximum Settlement
Amount; however, if not approved by the Court, no more than one third
(1/3) of the Maximum Settlement Amount is to be attributed to taxable
wages;
• The Settlement Administrator shall be a third-party settlement administrator
mutually agreed to by the Parties. The Parties have selected American Legal
Claims as the administrator. Settlement Administration Expenses shall not
exceed $20,000 and will be paid from the Settlement Fund;
1
The Maximum Settlement Amount ($350,000.00) will be allocated among the approximately 296
Florida class members by adding the total Settlement Administration Expense (estimated at
$20,000.00), plus Attorneys’ Fees and Litigation Costs ($165,000.00), plus Plaintiff’s General
Release Payment ($7,500.00), which totals $192,500.00. Next, $192,500.00 is then subtracted from
the Maximum Settlement Amount ($350,000.00) leaving $157,500.00 for the 296 class members.
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• Payment by Defendant through the Settlement Fund of a General Release
Payment to the Named Plaintiff of up to $7,500.00, in addition to her pro-
rata distribution amount from the Settlement Fund;
• The Settlement Fund is a non-reversionary common fund; any funds
remaining (which shall only arise if/when a check is mailed but then not
cashed) shall revert to a cy pres recipient, subject to Court approval;
• From the Settlement Fund, Defendant agrees to pay Plaintiff’s counsel
attorneys’ fees and costs not to exceed $165,000.00, subject to final Court
approval.
If the Settlement is approved, Settlement Class Members will be able to obtain monetary
benefits without undertaking the risks of litigation and without the substantial delay that would
occur if the case instead proceeded through class certification, trial, and appeal proceedings, which
could take several years. Plaintiff and her counsel believe the Settlement is in the best interests of
the Settlement Class and seek preliminary approval and entry of the Proposed Order attached
hereto.
II. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED.
A. The Law Governing Preliminary Approval
Explicit in Fla. R. Civ. P. 1.220(e) is that claims, issues or defenses of a certified class may
be settled only with the court’s approval. Fla. Rule Civ. P. 1.220, based on Fed. R. Civ. P. 23. The
Eleventh Circuit has recognized that “[p]ublic policy strongly favors the pretrial settlement of class
action lawsuits.” In re United States Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992); see also
Gevaerts v. TD Bank, N.A., 2015 WL 6751061, at *4 (S.D. Fla. Nov. 5, 2015) (“Federal courts
have long recognized a strong policy and presumption in favor of class action settlements.”).
Settlement “has special importance in class actions with their notable uncertainty, difficulties of
proof, and length. Settlements of complex cases contribute greatly to the efficient utilization of
scarce judicial resources, and achieve the speedy resolution of justice....” Behrens v. Wometco
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Enters., Inc., 118 F.R.D. 534, 538 (S.D. Fla. 1988), aff’d, 899 F.2d 21 (11th Cir. 1990) (citations
omitted). As a general matter, “unless the settlement is clearly inadequate, its acceptance and
approval are preferable to lengthy and expensive litigation with uncertain results.” 4 ALBA CONTE
& HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS §11.50, at 155 (4th ed. 2002).
“‘At the preliminary approval stage, the Court’s task is to evaluate whether the Settlement
is within the “range of reasonableness.’ 4 Newberg on Class Actions § 11.26 (4th ed. 2010).
‘Preliminary approval is appropriate where the proposed settlement is the result of the parties’ good
faith negotiations, there are no obvious deficiencies and the settlement falls within the range of
reason.’ Smith v. Wm. Wrigley Jr. Co., 2010 WL 2401149, at *2 (S.D. Fla. Jun. 15, 2010).”
Almanzar v. Select Portfolio Servicing, Inc., 2015 WL 10857401, at *1 (S.D. Fla. Oct. 15, 2015).
This Court has set forth the following process for preliminary approval of a class action settlement:
Rule 23(e), Federal Rules of Civil Procedure, permits approval of a class action
settlement if the settlement is “fair, reasonable, and adequate.” See Strube v. Am.
Equity Inv. Life Ins. Co., 226 F.R.D. 688, 697 (M.D.Fla.2005) (Fawsett, J.).
Approval is generally a two-step process in which a “preliminary determination on
the fairness, reasonableness, and adequacy of the proposed settlement terms” is
reached. See DAVID F. HERR, ANNOTATED MANUAL FOR COMPLEX
LITIGATION § 21.632 (4th ed.2008). The factors considered are (1) the influence
of fraud or collusion on the parties’ reaching a settlement, (2) “the likelihood of
success at trial,” (3) “the range of possible recovery,” (4) “the complexity,
expense[,] and duration of litigation,” (5) “the substance and amount of opposition
to the settlement,” and (6) “the stage of proceedings at which the settlement was
achieved.” Bennet v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984).
Holman v. Student Loan Xpress, Inc., 2009 WL 4015573, at *4 (M.D. Fla. Nov. 19, 2009).
B. The Settlement Meets the Standard for Preliminary Approval.
The proposed Settlement is well within the range of reasonableness for class action
settlements. With regard to the first factor set forth above, the parties negotiated at arms’ length
and with the assistance of a neutral mediator. “Where the parties have negotiated at arm’s length,
the Court should find that the settlement is not the product of collusion.” Saccoccio v. JP Morgan
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Chase Bank, N.A., 297 F.R.D. 683, 692 (S.D. Fla. 2014). Courts have consistently held that the
presence of an independent mediator negates any suggestion of fraud or collusion. See, e.g.,
Montoya v. PNC Bank, N.A., 2016 WL 1529902, at *8 (S.D. Fla. Apr. 13, 2016) (use of mediator
indicates there is “no suggestion of fraud or collusion”); Hall v. Bank of Am., N.A., 2014 WL
7184039, at *6 (S.D. Fla. Dec. 17, 2014). There was no fraud or collusion in reaching the
Settlement.
As for the second factor, the Settlement Class Members face a number of risks if this case
were to continue to a litigated resolution. To prevail on their claim, Plaintiff and the Settlement
Class Members must prove that Defendant (a) failed to pay for on-call time (which the Defendants
dispute there was any); (b) failed to pay overtime for all hours worked more than forty and failed
to include “hourly stipends” in overtime pay rate calculations (Defendants’ position is that
overtime was paid); and (c) failed to pay travel time (Defendants’ position that such time was not
compensable under federal or state law). If the litigation continued, Defendant would contest the
complaint on several other bases as well. First, Defendant would argue that the Class members
were not similarly situated because the nurses and nursing assistants may have had different duties
at the vaccination sites. Second, Defendant would argue if there was a violation, it nonetheless
operated in “good faith” and that liquidated damages are not warranted. Third, Defendant would
argue that its travel time policies comport with the FLSA and that there was no custom or practice
that made the time compensable. See 29 U.S.C. § 254(b). Finally, Defendant would argue that the
on-call time was not compensable due to the degree to which the employee may use the time for
personal activities. Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 807 (11th Cir. 1992).
While Plaintiff certainly would argue that Defendant’s positions are incorrect, the
Settlement Class must acknowledge the risk from those positions that could negate any recovery.
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See, e.g., James v. JPMorgan Chase Bank, N.A., 2017 WL 2472499, at **1–2 (M.D. Fla. June 5,
2017) (Merryday, J.) (granting approval where, inter alia, the defendant “asserts several
defenses…which might preclude or reduce recovery”); Holman, 2009 WL 4015573, at *5
(“Success at trial is uncertain because the defendant possesses legal and factual defenses to the
plaintiffs’ claims as well as several grounds for challenging class certification.”).
With regard to the third factor set forth above, the range of damage awards for violations
of the FLSA could vary greatly. And of course, a verdict of zero is possible if the jury finds that
none of the on-call or travel time was compensable or if the Defendant correctly computed the
overtime wages. Given the nature of the FLSA violations alleged here and Defendant’s
contentions, discussed supra, the Settlement Class Members face a risk that even if they
successfully establish a violation of the FLSA and Florida law at trial, they would receive an award
on the low end of the range of possible recovery. Although unpaid overtime wages must always
be awarded, the court retains the discretion to withhold an award of liquidated damages where it
finds that the employer has acted in “good faith.” 29 U.S.C. § 260 (stating that in action to recover
liquidated damages under the FLSA, “if the employer shows to the satisfaction of the court that
the act or omission giving rise to such action was in good faith and that he had reasonable grounds
for believing that his act or omission was not a violation of the [FLSA] ... the court may, in its
sound discretion, award no liquidated damages”). The Settlement compensation and structure
appropriately reflect a discount for that risk and the early and certain resolution of the class claims.
The recovery here is well within the range of reasonableness, particularly in light of the risks the
Settlement Class Members face in this case.
With regard to the fourth factor above, the Settlement Class Members could expect
litigation of this case to be complex, expensive, and to last for many years. As set forth above, just
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the determination of whether on-call time or travel time is compensable requires a detailed factual
examination. In addition to that, if successful, Plaintiff and the Class members would still have to
show that the overtime premium did not correctly include the hourly stipend. With regard to
expense and duration, Defendant has made clear that it intends to vigorously defend this case,
including by opposing class certification, moving for an interlocutory appeal of any certification
order, moving for summary judgment, and appealing any judgment against it. In short, “full
litigation of this case would be lengthy, expensive, and highly complex.” Holman, 2009 WL
4015573, at *5.
With regard to the fifth factor above, Plaintiff expects little to no opposition to the
Settlement. Plaintiff’s counsel support the Settlement and have concluded that it is in the best
interests of the Settlement Class and appropriate in light of the risks of continued litigation. As set
forth above, the Settlement provides $157,500 for 296 class members and fits well within the range
of settlements of similar cases, and it provides monetary relief to Settlement Class Members
without requiring them to prove actual overtime hours. Of course, the Settlement also provides
Settlement Class Members the opportunity to present objections to the Court or, if they wish to
pursue individual claims, to opt out.
With regard to the sixth factor above, the parties possess “ample information with which to
evaluate the merits of the competing positions.” Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir.
2004). The parties extensively litigated this case in federal court before it was refiled here,
including mediation with a well-respected class mediator. They also cooperated in exchanging
information sufficient to permit them to evaluate and reach a comprehensive settlement. Moreover,
the parties each analyzed legal authorities relevant to the FLSA as it relates to on-call, travel time,
and inclusion of stipends in determining overtime rates. By the time the parties settled this case,
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Plaintiff had conducted sufficient research and obtained sufficient information to allow her counsel
to properly evaluate settlement. Thus, all of the factors relevant to approval of a class action
settlement favor approval here.
III. THE PROPOSED CLASS SHOULD BE CERTIFIED FOR SETTLEMENT
PURPOSES.
State courts in Florida, along with courts in the Middle District of Florida and elsewhere,
have previously certified class action lawsuits alleging similar violations of 15 U.S.C. §
1681b(b)(2)(A)(i)-(ii). See, e.g., Blaney v. Aimbridge Hospitality, LLC, No. 18-CA-001358 (Fla.
13th Cir. Ct. July 23, 2018); Cathey v. Heartland Dental, LLC, Case No.: 2019-CA-000568 (Fla.
4th Judicial Circuit, Nov. 13, 2018); Graham v. Pyramid Healthcare Sols., Inc., No. 8:16-CV-1324-
T-30AAS, 2017 WL 2799928, at *2 (M.D. Fla. June 28, 2017)(Moody, J.); Coles v. Stateserv
Medical of Florida, LLC et al, No. 8:17-cv-829-T-17-AEP, (M.D. Fla. April 10, 2017) (D.E.. 45);
Fosbrink v. Area Wide Protective, Inc., 8:17-cv-01154-JSM-CPT, (M.D.Fla., May 8,
2018,)(Moody, J.)(D.E. 58). “A class may be certified ‘solely for purposes of settlement [if] a
settlement is reached before a litigated determination of the class certification issue.’” Holman,
2009 WL 4015573, at *2 (quoting Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006);
internal punctuation omitted). The proposed Settlement Class here meets the requirements of
Federal Rules of Civil Procedure 23(a) and 23(b)(3).
“Before a class action can be certified, the trial court must conduct a rigorous analysis to
determine that the elements of [Florida Rule of Civil Procedure 1.220(a)] . . . have been met.” City
of Tampa v. Addison, 979 So. 2d 246, 251 (Fla. 2d DCA 2007). Rule 1.220(a) imposes four
requirements for the certification of any class. First, the class must be so numerous that joinder of
all members is impracticable. Id. That requirement is easily satisfied here as there are
approximately 296 putative Settlement Class Members. See, e.g., Holman, 2009 WL 4015573, at
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*2. Moreover, the identities of the Settlement Class Members (former employees of Defendant)
can be ascertained from records available to Defendant.
Second, there must be “questions of law or fact common to the class.” Fla. R. Civ. P.
1.220(a)(2). Even a single common issue may suffice. See, e.g., Williams v. Mohawk Indus.,
Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (“[C]ommonality requires that there be at least one
issue whose resolution will affect all or a significant number of the putative class members.”)
(internal quotation marks omitted). Under Plaintiff’s theory of recovery, that requirement is met
by the common questions of: (1) whether the Class Members’ on-call and travel time was
compensable; (2) whether Defendant paid the premium rate for all overtime hours worked per
week; and (3) whether Defendant correctly calculated the overtime premium rate for the Class
Members.
Rule 1.220(a)(3) imposes a “typicality” requirement, which “is satisfied by showing the
existence of ‘a sufficient nexus ... between the claims of the named representative and those of the
class at large.’” Holman, 2009 WL 4015573, at *2 (quoting Hines v. Widnall, 334 F.3d 1253, 1256
(11th Cir. 2003)). That requirement is met here because the claims of the named plaintiff and those
of the Settlement Class Members all stem from the same basic facts and legal theory—they were
nurses and nursing assistants employed by Defendant in Florida to work at, be on-call for, and
travel to Defendant’s vaccination sites due to the pandemic. See, e.g., Kornberg v. Carnival Cruise
Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (typicality satisfied where claims “arise from the
same event or pattern or practice and are based on the same legal theory”). Further, Plaintiff seeks
the same relief on her own behalf and on behalf of each Settlement Class Member, i.e., owed
overtime premiums and wages for compensable travel time.
The final Rule 1.220(a) requirement is “adequacy,” which is met if (1) “‘plaintiffs’ counsel
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are qualified, experienced, and generally able to conduct the proposed litigation’” and (2) the
plaintiffs lack “‘interests antagonistic to those of the rest of the class.’” Holman, 2009 WL
4015573, at *2 (quoting Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987)).
Both of those things are true here. Plaintiff’s counsel and their firm are experienced in class action
litigation and, specifically, in litigating claims under the FLSA. See Declarations of Luis A.
Cabassa, Brandon J. Hill, and Amanda E. Heystek. Plaintiff has no interests antagonistic to those
of the Settlement Class.
In addition to Rule 1.220(a), a class must satisfy the requirements of one of the types of
class actions authorized by Rule 1.220(b). Here, the Settlement Class meets the requirements of
Rule 1.220(b)(3). The common questions identified above predominate over any individual
questions that might be identified. Fla. R. Civ. P. 1.220 (b)(3) (court must find that “the questions
of law or fact common to class members predominate over any questions affecting only individual
class members”). Whether Defendant’s pay practices for the overtime premium for each hour over
forty worked per work week as well as for compensable travel time violates the FLSA and/or
Florida law is an over-arching common issue that is critical to determining liability.
Further, in the context of this Settlement, there is no question that “a class action is superior
to other available methods for fairly and efficiently adjudicating the controversy.” Id. “Confronted
with a request for settlement-only class certification, a district court need not inquire whether the
case, if tried, would present intractable management problems, for the proposal is that there be no
trial.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Administration of a single,
comprehensive Settlement would be superior to multiple individual lawsuits asserting the same
claims.
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IV. PLAINTIFF’S COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL AND
PLAINTIFF APPOINTED AS CLASS REPRESENTATIVE.
Plaintiff’s counsel initially identified, investigated and asserted the claims of Plaintiff and
the Settlement Class, and, as set forth above, continued to prosecute and investigate those claims
throughout the discovery period. As set forth in the Declarations of Plaintiff’s counsel, both Luis
A. Cabassa and Brandon J. Hill have experience in handling class actions, and other complex
litigation, including the types of claims asserted in this action. In fact, as set forth in the footnote
below and the attached declarations, Plaintiff’s Counsel have been approved as class counsel in
many class actions, including FLSA actions alleging violations of 29 U.S.C. §§ 207, 216(b), in
Florida state and federal courts. 2 Additionally, Amanda E. Heystek, another of Plaintiff’s counsel
2
See, e.g., Luker v. Cognizant Technologies Solutions U.S. Corporation, M.D. Fla. Case No. 8:19-
cv-01448-WFJ-JSS (appointed class counsel in FLSA case); Molina et, al. v. ACE Homecare, LLC,
et al., M.D. Fla. Case No.: 8:16-cv-02214-JDW-TGW (appointed class counsel in WARN Act
case); Hargrett, et al. v. Amazon.com, DEDC, LLC, 8:15-cv-02456-WFJ-AAS, M.D. Fla. Case
No.: 8:15-cv-02456 (appointed as class counsel in FCRA case with 480,000+ class members
presided over by Judge Lazzara and Judge Jung); Valdivieso v. Cushman & Wakefield, Inc., 8:17-
cv-00118-SDM-JSS (appointed as class counsel in COBRA class action case involving over 2,000
class members); Vazquez v. Marriott International, Inc., M.D. Fla. Case No.: 8:17-cv-00116-MSS-
SPF (appointed as class counsel in COBRA class action case involving over 19,000 class
members); Figueroa v. Baycare Healthcare Systems, Inc. 8:17-cv-01780-JSM-AEP (appointed
class counsel for FCRA class case); Speer v. Whole Foods Market Group, Inc., 8:14-cv-03035-
RAL- TBM (M.D. Fla.) (Fair Credit Reporting Act class action settlement involving 20,000
individuals presided over by Judge Lazzara); Kohler, Kimberly v. SWF Operations, LLC and
Domino’s Pizza, LLC, Case No. 8:14-cv-2568-T-35TGH (appointed class counsel for FCRA class
case); Brown, et al. v. Lowe’s Companies, Inc., and LexisNexis Screening Solutions, Inc., Case
No.: 5:13-CV-00079-RLV-DSC (W.D.N.C) (appointed as co-class counsel in national FCRA class
action matter involving 451,000 class members); Smith, et al. v. QS Daytona, LLC, Case No.: 6:15-
cv-00347-GAP-KRS (M.D. Fla.) (Doc. 45) (appointed as class counsel in FCRA class action);
Patrick, Nieyshia v. Interstate Management Company, LLC, Case No. 8:15-cv-1252-T-33AEP
(M.D. Fla.) (appointed as class counsel in FCRA class action with approximately 32,000 class
members); George v. Primary Care Holding Inc., Case No. 0:17-cv-60217-BB (S.D. Fla.)
(appointed as class counsel in FCRA class); Moody, et al v. Ascenda, et al., Case No. 0:16-cv-
60364-WPD (S.D. Fla.) (appointed as class counsel in FCRA class action with approximately
12,000 class members).
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with the same firm has over twenty years of experience as an attorney and now practices in
employment law, including handling FLSA and state law wage cases. That experience, coupled
with the extensive litigation already conducted in this case, demonstrate the undersigned have
knowledge of the applicable law. Further, the resources that counsel have committed to
representing the class have been substantial, as evidenced by their work in this case. In short,
Plaintiff’s Counsel have represented the Settlement Class well and will continue to do so.
Plaintiff has also represented the Settlement Class well. She has fully participated in all
aspects of this litigation, including making herself available for deposition, attending mediation,
responding to her attorneys, and otherwise monitoring and participating in the progress of this
action. The Court should appoint her as Class Representative.
V. THE PROPOSED NOTICE SHOULD BE APPROVED.
The Settlement provides for individual, mailed notice and a website that contains detailed
information about the case and the Settlement. Under the Settlement Agreement, the Settlement
Administrator will mail a notice to each Settlement Class Member after entry of the Preliminary
Approval Order. The notice will be in substantially the same form as Exhibit B (“Notice”) and
will be sent via postcard (single card) through the U.S. Mail to Settlement Class Members’ last
known addresses (updated through the National Change of Address database (“NCOA”) or
comparable means).
In addition, within fifteen (15) business days of entry of the Preliminary Approval Order,
the Settlement Administrator will establish a website that contains the Settlement Agreement, and
documents such as the operative complaint and answer, and a Question and Answer Notice that
contains responses to numerous potential questions about the Settlement (also known as the long-
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form notice). The Question and Answer Notice is attached as Exhibit C to the Settlement
Agreement.
Both the Notice and the Question and Answer Notice describe the Settlement, set forth the
Settlement Class Members’ rights and options (including objecting, opting out, and appearing),
and provide means by which Settlement Class Members can obtain further information about the
Settlement. See Johnson v. NPAS Sols., Inc., 2017 WL 6060778, at *2 (S.D. Fla. Dec. 4, 2017)
(approving “postcard notice, claim form, and Question & Answer Notice, which are attached as
exhibits to the [class action] Settlement Agreement”).
The notice procedures provided by the Settlement comply with Fla. R. Civ. P. 1.220 (d)(2)
and due process. Those procedures include “individual notice to all [Settlement Class] members
who can be identified through reasonable effort,” i.e., records available to Defendant and use of
the NCOA or comparable means. Id. The Notice states in clear, concise, and plain language the
nature of the case, the class definition, the issues in the case, that Settlement Class Members may
appear through an attorney if they desire, that the Court will exclude from the Settlement Class
those Settlement Class Members who request exclusion, the procedures for requesting exclusion,
and the binding effect of a class judgment. Id. The Court should thus approve the Notice and notice
procedures in the Settlement.
VI. THE COURT SHOULD APPROVE A SCHEDULE AND PROCEDURES FOR A
FAIRNESS HEARING, OPTING OUT, OBJECTING, AND FILING A MOTION
FOR ATTORNEYS’ FEES AND INCENTIVE AWARDS.
Plaintiff requests that, in conjunction with preliminarily approving the Settlement, the
Court schedule a fairness hearing to determine whether to finally approve the Settlement. Plaintiff
also requests that the Court approve the deadlines and procedures the Settlement Agreement
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provides for opting out, objecting, and filing a motion for attorneys’ fees, expenses, and an
incentive award for Plaintiff.
The procedures for opting out and objecting are set forth in detail in the Settlement
Agreement, as are the procedures for filing a motion for attorneys’ fees, expenses, and an incentive
award. Plaintiff respectfully requests that opt out and objection procedures be included in the
Preliminary Approval Order. See Johnson, 2017 WL 6060778, at **2-3; Almanzar, 2015 WL
10857401, at **4-5.
WHEREFORE, Plaintiff thus respectfully requests that the Court enter the Proposed Order
attached as Exhibit 2 to the Settlement Agreement.
Dated this 25th of April, 2023.
Respectfully submitted,
/s/ Brandon J. Hill
BRANDON J. HILL
Florida Bar Number: 0037061
LUIS A. CABASSA
Florida Bar Number: 0053643
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, Florida 33602
Main Number: 813-224-0431
Direct Dial: (813) 379-2565
Facsimile: 813-229-8712
Email: bhill@wfclaw.com
Email: lcabassa@wfclaw.com
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th day of April, 2023, I electronically filed the foregoing
with the Clerk of Court by using the ECF system and a true and correct copy was furnished via electronic
mail to:
John A. Turner, Esq.
Saul Ewing Arnstein & Lehr LLP
515 N. Flagler Drive, Suite 1400
West Palm Beach, FL 33401
john.turner@saul.com
susan.brown@saul.com
wpb-ctdocs@saul.com
Alexander Reich, Esq.
E. Jason Tremblay, Esq.
Saul Ewing LLP
161 N. Clark Street, Suite 4200
Chicago, IL 60601
alexander.reich@saul.com
jason.tremblay@saul.com
Attorneys for Defendants
/s/Brandon J. Hill
BRANDON J. HILL
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EXHIBIT 1
4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 17
THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
SHARLEY BASS, on behalf of
Herself and all others similarly
Situated,
Plaintiff, CASE NO.:
v.
MED-CALL HEALTHCARE, INC., and
RISHER DUMPIT, Individually,
Defendants.
_________________________/
SETTLEMENT AGREEMENT
I. Introduction
This Settlement Agreement (“Agreement” or “Settlement Agreement”) is made and
entered into by and between Plaintiff, Sharley Bass (hereinafter “Plaintiff,” “Named Plaintiff” or
the “Class Representative”), on her own behalf and on behalf of the Settlement Class, defined
below and described herein, and Med-Call Healthcare, Inc., and Risher Dumpit, Indiv.
(collectively “Med-Call” or “Defendants”) (Med-Call and Plaintiff are collectively, the
“Parties”).
II. Recitals
A. Named Plaintiff, Sharley Bass, filed a Class Action Complaint styled Sharley Bass,
on behalf of herself and on behalf of all others similarly situated, v. Med-Call HealthCare, Inc.,
and Risher Dumpit, Individually, in the Circuit Court of the Thirteenth Judicial Circuit in and for
Hillsborough County, Florida (the “FLSA Litigation” or the “Action”), following dismissal of
the federal action, Bass v. Med-Call HealthCare, Inc., and Risher Dumpit, M.D., Fla. Case No.
22-cv-0244-CEH-TGW, asserting claims against Med-Call under the Fair Labor Standards Act
(“FLSA”) and for unpaid wages under Florida common law on behalf of herself and on behalf of
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a proposed class of similarly situated individuals. The Parties have since reached an agreement
that, if approved by this Court, will resolve all claims of the Named Plaintiff and each of the
approximately 296 putative class members in Florida.
B. The Action generally alleges that Med-Call violated the FLSA by failing to comply
with the FLSA’s overtime requirements. Specifically, the Action alleges that Med-Call failed to
include compensable on-call and travel time in its overtime payments and also failed to include
hourly stipends in calculating the overtime rate for its nurses and nursing assistants at vaccination
sites in violation of 29 U.S.C. § 207. Med-Call denies Plaintiff’s allegations and denies that it
committed any violation of the FLSA or Florida law with respect to Plaintiff or the Settlement
Class.
C. The lawsuit was originally filed in United States District Court for the Middle
District of Florida, Tampa Division on January 31, 2022, styled Sharley Bass, on behalf of herself
and on behalf of all others similarly situated, v. Med-Call HealthCare, Inc., and Risher Dumpit,
Individually, Case No. 8:22-cv-0244-CEH-TGW. Thereafter, the Parties extensively litigated this
matter, engaged in substantive written discovery, and engaged in early mediation.
D. On May 31, 2022, the Parties participated in mediation with highly-respected
mediator, Carlos J. Burruezo. No settlement was reached at mediation. However, the parties
continued their arm’s length negotiations and ultimately reached an agreement which, if approved
by the Court, will resolve all claims of Plaintiff and each of the 296 Florida-based putative class
members for whom are owed overtime wages and unpaid wages, and will provide valuable
monetary relief and certain other consideration set forth below.
E. Med-Call denies it engaged in any wrongdoing, denies any actual or potential fault,
wrongdoing, or liability in connection with any facts or claims that have been or could have been
alleged against it in the Action, denies that the claims asserted by Plaintiff are suitable for class
2
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treatment other than for settlement purposes, denies that it has any liability whatsoever with respect
to Plaintiff or the Settlement Class, but enters into this Agreement because of the substantial
expense of litigation, the length of time necessary to resolve the issues presented, the
inconvenience involved, and the disruption to its operations. This Agreement is not, and shall not,
in any way be deemed to constitute an admission or evidence of any wrongdoing or liability on
the part of Med-Call, nor of any violation of any federal, state, or municipal statute, regulation,
principle of common law or equity.
F. The attorneys representing the Settlement Class defined below (“Class Counsel”)
are experienced in litigating class action claims of the type involved in this Action.
G. The Parties and their respective attorneys of record, taking into account the risks,
uncertainties, delay, and expense involved in the Action, as well as other relevant considerations,
believe that it is in the best interests of all Parties and the putative class to compromise and fully
and finally settle this Action in the manner and upon the terms and conditions hereinafter set forth.
The Parties intend that this Settlement Agreement will end and encompass all pending, threatened,
or possible litigation and/or claims against Med-Call, and Med-Call’s affiliates, that arise out of
or relate to the Action or that could have been brought in this Action, upon entry of a final order
approving this settlement and this Agreement.
H. The relief provided to the Class Members and the procedures set forth in this
Agreement for the distribution of relief provide fair, flexible, speedy, cost-effective, and assured
value to the Class Members. Thus, this Agreement provides considerable benefit to the Class
Members while avoiding costly litigation of difficult and contentious issues.
I. Based on Class Counsel’s extensive analysis of the law and facts at issue in this
Action, and the fair, flexible, speedy, cost-effective, and assured procedures for providing the
settlement benefits to the Class Members, the Class Representative (on advice of Class Counsel)
3
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has determined that this settlement with Med-Call on the terms set forth below is fair, adequate,
and reasonable, and thus in the best interests of the Class Members.
III. Definitions.
For purposes of this Agreement, the following definitions shall apply:
A. The “Action” shall refer to this lawsuit throughout its pendency and including all
venues and forums during that pendency.
B. “Agreement” or “Settlement Agreement” means this Settlement Agreement.
C. “Class Representative” or “Named Plaintiff” or “Plaintiff” means Sharley Bass.
D. “Class Co
Preview
Filing # 171720346 E-Filed 04/25/2023 10:18:06 AM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION SHARLEY BASS, on behalf of Herself and all others similarly Situated, Plaintiff, CASE NO.: v. MED-CALL HEALTHCARE, INC., and RISHER DUMPIT, Individually, Defendants. _________________________/ PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT COMES NOW, Plaintiff Sharley Bass (“Plaintiff”), on her own behalf and on behalf of the settlement class defined below, and, pursuant to Florida Rule of Civil 1.220, files her Unopposed Motion for Preliminary Approval of Class Action Settlement, respectfully stating as follows: The parties have reached a settlement in this Fair Labor Standards Act (“FLSA”) and Florida law case that, if approved, would resolve this action by providing monetary relief to a settlement class consisting of approximately 296 Florida-based employees. The Settlement Agreement is attached hereto as Exhibit 1. Plaintiff moves the Court to preliminarily approve the proposed settlement; to conditionally certify a class, solely for purposes of settlement; to appoint Plaintiff’s counsel as Class Counsel and to appoint Plaintiff as Class Representative; to approve the proposed notice to the settlement class and the procedures for providing notice; to schedule a final fairness hearing; and to set procedures and deadlines for opting out, objecting, and filing a motion for an award of attorneys’ 41363747.2 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 fees, expenses, and an incentive award. A Proposed Order is attached to the Settlement Agreement as Exhibit A. I. THE CLAIMS, PROCEEDINGS, AND SETTLEMENT On January 31, 2022, Named Plaintiff, Sharley Bass, filed a Class Action Complaint styled Sharley Bass, on behalf of herself and on behalf of all others similarly situated, v. Med-Call HeaalthCare, Inc., and Risher Dumpit, Indiv., in the United States District Court, Middle District of Florida (the “Action”), asserting claims against Defendants under the Fair Labor Standards Act (“FLSA”) and Florida law on behalf of herself and on behalf of a proposed class of similarly situated individuals. The Parties have since reached an agreement, including that the Parties will seek approval of their settlement in Florida state court. If approved by this Court, the settlement will resolve all claims of the Named Plaintiff and each of the approximately 296 putative class members in Florida. The Action generally alleges that Defendant violated the FLSA and Florida law by failing to comply with the FLSA’s mandate for overtime premiums, including correctly calculating the overtime rate paid by inclusion of hourly stipends, as well as compensable on-call and travel time. Specifically, the Action alleges that Defendant failed to pay for on-call time, failed to pay for travel time, and failed to pay for all hours over forty worked per week at the correct premium rate including paid hourly stipends and, as a result, Defendant is in violation of 29 U.S.C. § 207 and Florida law. The Action was originally filed in the United States District Court for the Middle District of Florida, Tampa Division. Thereafter, the parties extensively litigated this matter, engaged in substantive informal discovery and agreed to mediate on a class-wide basis. 41363747.2 2 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 The parties then engaged in settlement discussions, including an all-day mediation with an experienced class action mediator. Following mediation, and only after weeks of arm’s length settlement discussions between highly experienced counsel on both sides, the Parties reached an agreement in principle (“Settlement”) to resolve this Action, on a class basis, under the following key terms: • The Parties agreed to resolve a Settlement Class consisting of “All nurses, nurse assistants or other personnel working for Med-Call within the State of Florida during the Class Period.” The Class Period is defined as “three (3) years prior to the date of filing the Lawsuit, or from January 31, 2019 to January 31, 2022, until the date of preliminary approval”; • Defendant shall deposit with the Administrator a Settlement Fund in the amount of $350,000.00 (“Settlement Fund”). That amount will be allocated among the approximately 296 class members as claims paid, less the costs of settlement administration, Plaintiff’s General Release Payment, and Plaintiff’s counsel’s litigation costs. 1 Individual settlement amounts for class members will be allocated based on the number of pay periods and/or hours worked by each class member during the Class Period and evenly allocated for tax purposes between back wages and non-wage liquidated damages; • Defendants shall separately pay, outside of the Settlement Fund, the payroll/withholding taxes due on the wage portion of the individual settlement payments that shall be paid from the Maximum Settlement Amount; however, if not approved by the Court, no more than one third (1/3) of the Maximum Settlement Amount is to be attributed to taxable wages; • The Settlement Administrator shall be a third-party settlement administrator mutually agreed to by the Parties. The Parties have selected American Legal Claims as the administrator. Settlement Administration Expenses shall not exceed $20,000 and will be paid from the Settlement Fund; 1 The Maximum Settlement Amount ($350,000.00) will be allocated among the approximately 296 Florida class members by adding the total Settlement Administration Expense (estimated at $20,000.00), plus Attorneys’ Fees and Litigation Costs ($165,000.00), plus Plaintiff’s General Release Payment ($7,500.00), which totals $192,500.00. Next, $192,500.00 is then subtracted from the Maximum Settlement Amount ($350,000.00) leaving $157,500.00 for the 296 class members. 41363747.2 3 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 • Payment by Defendant through the Settlement Fund of a General Release Payment to the Named Plaintiff of up to $7,500.00, in addition to her pro- rata distribution amount from the Settlement Fund; • The Settlement Fund is a non-reversionary common fund; any funds remaining (which shall only arise if/when a check is mailed but then not cashed) shall revert to a cy pres recipient, subject to Court approval; • From the Settlement Fund, Defendant agrees to pay Plaintiff’s counsel attorneys’ fees and costs not to exceed $165,000.00, subject to final Court approval. If the Settlement is approved, Settlement Class Members will be able to obtain monetary benefits without undertaking the risks of litigation and without the substantial delay that would occur if the case instead proceeded through class certification, trial, and appeal proceedings, which could take several years. Plaintiff and her counsel believe the Settlement is in the best interests of the Settlement Class and seek preliminary approval and entry of the Proposed Order attached hereto. II. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED. A. The Law Governing Preliminary Approval Explicit in Fla. R. Civ. P. 1.220(e) is that claims, issues or defenses of a certified class may be settled only with the court’s approval. Fla. Rule Civ. P. 1.220, based on Fed. R. Civ. P. 23. The Eleventh Circuit has recognized that “[p]ublic policy strongly favors the pretrial settlement of class action lawsuits.” In re United States Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992); see also Gevaerts v. TD Bank, N.A., 2015 WL 6751061, at *4 (S.D. Fla. Nov. 5, 2015) (“Federal courts have long recognized a strong policy and presumption in favor of class action settlements.”). Settlement “has special importance in class actions with their notable uncertainty, difficulties of proof, and length. Settlements of complex cases contribute greatly to the efficient utilization of scarce judicial resources, and achieve the speedy resolution of justice....” Behrens v. Wometco 41363747.2 4 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 Enters., Inc., 118 F.R.D. 534, 538 (S.D. Fla. 1988), aff’d, 899 F.2d 21 (11th Cir. 1990) (citations omitted). As a general matter, “unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results.” 4 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS §11.50, at 155 (4th ed. 2002). “‘At the preliminary approval stage, the Court’s task is to evaluate whether the Settlement is within the “range of reasonableness.’ 4 Newberg on Class Actions § 11.26 (4th ed. 2010). ‘Preliminary approval is appropriate where the proposed settlement is the result of the parties’ good faith negotiations, there are no obvious deficiencies and the settlement falls within the range of reason.’ Smith v. Wm. Wrigley Jr. Co., 2010 WL 2401149, at *2 (S.D. Fla. Jun. 15, 2010).” Almanzar v. Select Portfolio Servicing, Inc., 2015 WL 10857401, at *1 (S.D. Fla. Oct. 15, 2015). This Court has set forth the following process for preliminary approval of a class action settlement: Rule 23(e), Federal Rules of Civil Procedure, permits approval of a class action settlement if the settlement is “fair, reasonable, and adequate.” See Strube v. Am. Equity Inv. Life Ins. Co., 226 F.R.D. 688, 697 (M.D.Fla.2005) (Fawsett, J.). Approval is generally a two-step process in which a “preliminary determination on the fairness, reasonableness, and adequacy of the proposed settlement terms” is reached. See DAVID F. HERR, ANNOTATED MANUAL FOR COMPLEX LITIGATION § 21.632 (4th ed.2008). The factors considered are (1) the influence of fraud or collusion on the parties’ reaching a settlement, (2) “the likelihood of success at trial,” (3) “the range of possible recovery,” (4) “the complexity, expense[,] and duration of litigation,” (5) “the substance and amount of opposition to the settlement,” and (6) “the stage of proceedings at which the settlement was achieved.” Bennet v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). Holman v. Student Loan Xpress, Inc., 2009 WL 4015573, at *4 (M.D. Fla. Nov. 19, 2009). B. The Settlement Meets the Standard for Preliminary Approval. The proposed Settlement is well within the range of reasonableness for class action settlements. With regard to the first factor set forth above, the parties negotiated at arms’ length and with the assistance of a neutral mediator. “Where the parties have negotiated at arm’s length, the Court should find that the settlement is not the product of collusion.” Saccoccio v. JP Morgan 41363747.2 5 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 Chase Bank, N.A., 297 F.R.D. 683, 692 (S.D. Fla. 2014). Courts have consistently held that the presence of an independent mediator negates any suggestion of fraud or collusion. See, e.g., Montoya v. PNC Bank, N.A., 2016 WL 1529902, at *8 (S.D. Fla. Apr. 13, 2016) (use of mediator indicates there is “no suggestion of fraud or collusion”); Hall v. Bank of Am., N.A., 2014 WL 7184039, at *6 (S.D. Fla. Dec. 17, 2014). There was no fraud or collusion in reaching the Settlement. As for the second factor, the Settlement Class Members face a number of risks if this case were to continue to a litigated resolution. To prevail on their claim, Plaintiff and the Settlement Class Members must prove that Defendant (a) failed to pay for on-call time (which the Defendants dispute there was any); (b) failed to pay overtime for all hours worked more than forty and failed to include “hourly stipends” in overtime pay rate calculations (Defendants’ position is that overtime was paid); and (c) failed to pay travel time (Defendants’ position that such time was not compensable under federal or state law). If the litigation continued, Defendant would contest the complaint on several other bases as well. First, Defendant would argue that the Class members were not similarly situated because the nurses and nursing assistants may have had different duties at the vaccination sites. Second, Defendant would argue if there was a violation, it nonetheless operated in “good faith” and that liquidated damages are not warranted. Third, Defendant would argue that its travel time policies comport with the FLSA and that there was no custom or practice that made the time compensable. See 29 U.S.C. § 254(b). Finally, Defendant would argue that the on-call time was not compensable due to the degree to which the employee may use the time for personal activities. Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 807 (11th Cir. 1992). While Plaintiff certainly would argue that Defendant’s positions are incorrect, the Settlement Class must acknowledge the risk from those positions that could negate any recovery. 41363747.2 6 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 See, e.g., James v. JPMorgan Chase Bank, N.A., 2017 WL 2472499, at **1–2 (M.D. Fla. June 5, 2017) (Merryday, J.) (granting approval where, inter alia, the defendant “asserts several defenses…which might preclude or reduce recovery”); Holman, 2009 WL 4015573, at *5 (“Success at trial is uncertain because the defendant possesses legal and factual defenses to the plaintiffs’ claims as well as several grounds for challenging class certification.”). With regard to the third factor set forth above, the range of damage awards for violations of the FLSA could vary greatly. And of course, a verdict of zero is possible if the jury finds that none of the on-call or travel time was compensable or if the Defendant correctly computed the overtime wages. Given the nature of the FLSA violations alleged here and Defendant’s contentions, discussed supra, the Settlement Class Members face a risk that even if they successfully establish a violation of the FLSA and Florida law at trial, they would receive an award on the low end of the range of possible recovery. Although unpaid overtime wages must always be awarded, the court retains the discretion to withhold an award of liquidated damages where it finds that the employer has acted in “good faith.” 29 U.S.C. § 260 (stating that in action to recover liquidated damages under the FLSA, “if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA] ... the court may, in its sound discretion, award no liquidated damages”). The Settlement compensation and structure appropriately reflect a discount for that risk and the early and certain resolution of the class claims. The recovery here is well within the range of reasonableness, particularly in light of the risks the Settlement Class Members face in this case. With regard to the fourth factor above, the Settlement Class Members could expect litigation of this case to be complex, expensive, and to last for many years. As set forth above, just 41363747.2 7 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7 the determination of whether on-call time or travel time is compensable requires a detailed factual examination. In addition to that, if successful, Plaintiff and the Class members would still have to show that the overtime premium did not correctly include the hourly stipend. With regard to expense and duration, Defendant has made clear that it intends to vigorously defend this case, including by opposing class certification, moving for an interlocutory appeal of any certification order, moving for summary judgment, and appealing any judgment against it. In short, “full litigation of this case would be lengthy, expensive, and highly complex.” Holman, 2009 WL 4015573, at *5. With regard to the fifth factor above, Plaintiff expects little to no opposition to the Settlement. Plaintiff’s counsel support the Settlement and have concluded that it is in the best interests of the Settlement Class and appropriate in light of the risks of continued litigation. As set forth above, the Settlement provides $157,500 for 296 class members and fits well within the range of settlements of similar cases, and it provides monetary relief to Settlement Class Members without requiring them to prove actual overtime hours. Of course, the Settlement also provides Settlement Class Members the opportunity to present objections to the Court or, if they wish to pursue individual claims, to opt out. With regard to the sixth factor above, the parties possess “ample information with which to evaluate the merits of the competing positions.” Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004). The parties extensively litigated this case in federal court before it was refiled here, including mediation with a well-respected class mediator. They also cooperated in exchanging information sufficient to permit them to evaluate and reach a comprehensive settlement. Moreover, the parties each analyzed legal authorities relevant to the FLSA as it relates to on-call, travel time, and inclusion of stipends in determining overtime rates. By the time the parties settled this case, 41363747.2 8 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8 Plaintiff had conducted sufficient research and obtained sufficient information to allow her counsel to properly evaluate settlement. Thus, all of the factors relevant to approval of a class action settlement favor approval here. III. THE PROPOSED CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES. State courts in Florida, along with courts in the Middle District of Florida and elsewhere, have previously certified class action lawsuits alleging similar violations of 15 U.S.C. § 1681b(b)(2)(A)(i)-(ii). See, e.g., Blaney v. Aimbridge Hospitality, LLC, No. 18-CA-001358 (Fla. 13th Cir. Ct. July 23, 2018); Cathey v. Heartland Dental, LLC, Case No.: 2019-CA-000568 (Fla. 4th Judicial Circuit, Nov. 13, 2018); Graham v. Pyramid Healthcare Sols., Inc., No. 8:16-CV-1324- T-30AAS, 2017 WL 2799928, at *2 (M.D. Fla. June 28, 2017)(Moody, J.); Coles v. Stateserv Medical of Florida, LLC et al, No. 8:17-cv-829-T-17-AEP, (M.D. Fla. April 10, 2017) (D.E.. 45); Fosbrink v. Area Wide Protective, Inc., 8:17-cv-01154-JSM-CPT, (M.D.Fla., May 8, 2018,)(Moody, J.)(D.E. 58). “A class may be certified ‘solely for purposes of settlement [if] a settlement is reached before a litigated determination of the class certification issue.’” Holman, 2009 WL 4015573, at *2 (quoting Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006); internal punctuation omitted). The proposed Settlement Class here meets the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). “Before a class action can be certified, the trial court must conduct a rigorous analysis to determine that the elements of [Florida Rule of Civil Procedure 1.220(a)] . . . have been met.” City of Tampa v. Addison, 979 So. 2d 246, 251 (Fla. 2d DCA 2007). Rule 1.220(a) imposes four requirements for the certification of any class. First, the class must be so numerous that joinder of all members is impracticable. Id. That requirement is easily satisfied here as there are approximately 296 putative Settlement Class Members. See, e.g., Holman, 2009 WL 4015573, at 41363747.2 9 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9 *2. Moreover, the identities of the Settlement Class Members (former employees of Defendant) can be ascertained from records available to Defendant. Second, there must be “questions of law or fact common to the class.” Fla. R. Civ. P. 1.220(a)(2). Even a single common issue may suffice. See, e.g., Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (“[C]ommonality requires that there be at least one issue whose resolution will affect all or a significant number of the putative class members.”) (internal quotation marks omitted). Under Plaintiff’s theory of recovery, that requirement is met by the common questions of: (1) whether the Class Members’ on-call and travel time was compensable; (2) whether Defendant paid the premium rate for all overtime hours worked per week; and (3) whether Defendant correctly calculated the overtime premium rate for the Class Members. Rule 1.220(a)(3) imposes a “typicality” requirement, which “is satisfied by showing the existence of ‘a sufficient nexus ... between the claims of the named representative and those of the class at large.’” Holman, 2009 WL 4015573, at *2 (quoting Hines v. Widnall, 334 F.3d 1253, 1256 (11th Cir. 2003)). That requirement is met here because the claims of the named plaintiff and those of the Settlement Class Members all stem from the same basic facts and legal theory—they were nurses and nursing assistants employed by Defendant in Florida to work at, be on-call for, and travel to Defendant’s vaccination sites due to the pandemic. See, e.g., Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (typicality satisfied where claims “arise from the same event or pattern or practice and are based on the same legal theory”). Further, Plaintiff seeks the same relief on her own behalf and on behalf of each Settlement Class Member, i.e., owed overtime premiums and wages for compensable travel time. The final Rule 1.220(a) requirement is “adequacy,” which is met if (1) “‘plaintiffs’ counsel 41363747.2 10 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10 are qualified, experienced, and generally able to conduct the proposed litigation’” and (2) the plaintiffs lack “‘interests antagonistic to those of the rest of the class.’” Holman, 2009 WL 4015573, at *2 (quoting Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987)). Both of those things are true here. Plaintiff’s counsel and their firm are experienced in class action litigation and, specifically, in litigating claims under the FLSA. See Declarations of Luis A. Cabassa, Brandon J. Hill, and Amanda E. Heystek. Plaintiff has no interests antagonistic to those of the Settlement Class. In addition to Rule 1.220(a), a class must satisfy the requirements of one of the types of class actions authorized by Rule 1.220(b). Here, the Settlement Class meets the requirements of Rule 1.220(b)(3). The common questions identified above predominate over any individual questions that might be identified. Fla. R. Civ. P. 1.220 (b)(3) (court must find that “the questions of law or fact common to class members predominate over any questions affecting only individual class members”). Whether Defendant’s pay practices for the overtime premium for each hour over forty worked per work week as well as for compensable travel time violates the FLSA and/or Florida law is an over-arching common issue that is critical to determining liability. Further, in the context of this Settlement, there is no question that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. “Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Administration of a single, comprehensive Settlement would be superior to multiple individual lawsuits asserting the same claims. 41363747.2 11 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 11 IV. PLAINTIFF’S COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL AND PLAINTIFF APPOINTED AS CLASS REPRESENTATIVE. Plaintiff’s counsel initially identified, investigated and asserted the claims of Plaintiff and the Settlement Class, and, as set forth above, continued to prosecute and investigate those claims throughout the discovery period. As set forth in the Declarations of Plaintiff’s counsel, both Luis A. Cabassa and Brandon J. Hill have experience in handling class actions, and other complex litigation, including the types of claims asserted in this action. In fact, as set forth in the footnote below and the attached declarations, Plaintiff’s Counsel have been approved as class counsel in many class actions, including FLSA actions alleging violations of 29 U.S.C. §§ 207, 216(b), in Florida state and federal courts. 2 Additionally, Amanda E. Heystek, another of Plaintiff’s counsel 2 See, e.g., Luker v. Cognizant Technologies Solutions U.S. Corporation, M.D. Fla. Case No. 8:19- cv-01448-WFJ-JSS (appointed class counsel in FLSA case); Molina et, al. v. ACE Homecare, LLC, et al., M.D. Fla. Case No.: 8:16-cv-02214-JDW-TGW (appointed class counsel in WARN Act case); Hargrett, et al. v. Amazon.com, DEDC, LLC, 8:15-cv-02456-WFJ-AAS, M.D. Fla. Case No.: 8:15-cv-02456 (appointed as class counsel in FCRA case with 480,000+ class members presided over by Judge Lazzara and Judge Jung); Valdivieso v. Cushman & Wakefield, Inc., 8:17- cv-00118-SDM-JSS (appointed as class counsel in COBRA class action case involving over 2,000 class members); Vazquez v. Marriott International, Inc., M.D. Fla. Case No.: 8:17-cv-00116-MSS- SPF (appointed as class counsel in COBRA class action case involving over 19,000 class members); Figueroa v. Baycare Healthcare Systems, Inc. 8:17-cv-01780-JSM-AEP (appointed class counsel for FCRA class case); Speer v. Whole Foods Market Group, Inc., 8:14-cv-03035- RAL- TBM (M.D. Fla.) (Fair Credit Reporting Act class action settlement involving 20,000 individuals presided over by Judge Lazzara); Kohler, Kimberly v. SWF Operations, LLC and Domino’s Pizza, LLC, Case No. 8:14-cv-2568-T-35TGH (appointed class counsel for FCRA class case); Brown, et al. v. Lowe’s Companies, Inc., and LexisNexis Screening Solutions, Inc., Case No.: 5:13-CV-00079-RLV-DSC (W.D.N.C) (appointed as co-class counsel in national FCRA class action matter involving 451,000 class members); Smith, et al. v. QS Daytona, LLC, Case No.: 6:15- cv-00347-GAP-KRS (M.D. Fla.) (Doc. 45) (appointed as class counsel in FCRA class action); Patrick, Nieyshia v. Interstate Management Company, LLC, Case No. 8:15-cv-1252-T-33AEP (M.D. Fla.) (appointed as class counsel in FCRA class action with approximately 32,000 class members); George v. Primary Care Holding Inc., Case No. 0:17-cv-60217-BB (S.D. Fla.) (appointed as class counsel in FCRA class); Moody, et al v. Ascenda, et al., Case No. 0:16-cv- 60364-WPD (S.D. Fla.) (appointed as class counsel in FCRA class action with approximately 12,000 class members). 41363747.2 12 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 12 with the same firm has over twenty years of experience as an attorney and now practices in employment law, including handling FLSA and state law wage cases. That experience, coupled with the extensive litigation already conducted in this case, demonstrate the undersigned have knowledge of the applicable law. Further, the resources that counsel have committed to representing the class have been substantial, as evidenced by their work in this case. In short, Plaintiff’s Counsel have represented the Settlement Class well and will continue to do so. Plaintiff has also represented the Settlement Class well. She has fully participated in all aspects of this litigation, including making herself available for deposition, attending mediation, responding to her attorneys, and otherwise monitoring and participating in the progress of this action. The Court should appoint her as Class Representative. V. THE PROPOSED NOTICE SHOULD BE APPROVED. The Settlement provides for individual, mailed notice and a website that contains detailed information about the case and the Settlement. Under the Settlement Agreement, the Settlement Administrator will mail a notice to each Settlement Class Member after entry of the Preliminary Approval Order. The notice will be in substantially the same form as Exhibit B (“Notice”) and will be sent via postcard (single card) through the U.S. Mail to Settlement Class Members’ last known addresses (updated through the National Change of Address database (“NCOA”) or comparable means). In addition, within fifteen (15) business days of entry of the Preliminary Approval Order, the Settlement Administrator will establish a website that contains the Settlement Agreement, and documents such as the operative complaint and answer, and a Question and Answer Notice that contains responses to numerous potential questions about the Settlement (also known as the long- 41363747.2 13 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13 form notice). The Question and Answer Notice is attached as Exhibit C to the Settlement Agreement. Both the Notice and the Question and Answer Notice describe the Settlement, set forth the Settlement Class Members’ rights and options (including objecting, opting out, and appearing), and provide means by which Settlement Class Members can obtain further information about the Settlement. See Johnson v. NPAS Sols., Inc., 2017 WL 6060778, at *2 (S.D. Fla. Dec. 4, 2017) (approving “postcard notice, claim form, and Question & Answer Notice, which are attached as exhibits to the [class action] Settlement Agreement”). The notice procedures provided by the Settlement comply with Fla. R. Civ. P. 1.220 (d)(2) and due process. Those procedures include “individual notice to all [Settlement Class] members who can be identified through reasonable effort,” i.e., records available to Defendant and use of the NCOA or comparable means. Id. The Notice states in clear, concise, and plain language the nature of the case, the class definition, the issues in the case, that Settlement Class Members may appear through an attorney if they desire, that the Court will exclude from the Settlement Class those Settlement Class Members who request exclusion, the procedures for requesting exclusion, and the binding effect of a class judgment. Id. The Court should thus approve the Notice and notice procedures in the Settlement. VI. THE COURT SHOULD APPROVE A SCHEDULE AND PROCEDURES FOR A FAIRNESS HEARING, OPTING OUT, OBJECTING, AND FILING A MOTION FOR ATTORNEYS’ FEES AND INCENTIVE AWARDS. Plaintiff requests that, in conjunction with preliminarily approving the Settlement, the Court schedule a fairness hearing to determine whether to finally approve the Settlement. Plaintiff also requests that the Court approve the deadlines and procedures the Settlement Agreement 41363747.2 14 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 14 provides for opting out, objecting, and filing a motion for attorneys’ fees, expenses, and an incentive award for Plaintiff. The procedures for opting out and objecting are set forth in detail in the Settlement Agreement, as are the procedures for filing a motion for attorneys’ fees, expenses, and an incentive award. Plaintiff respectfully requests that opt out and objection procedures be included in the Preliminary Approval Order. See Johnson, 2017 WL 6060778, at **2-3; Almanzar, 2015 WL 10857401, at **4-5. WHEREFORE, Plaintiff thus respectfully requests that the Court enter the Proposed Order attached as Exhibit 2 to the Settlement Agreement. Dated this 25th of April, 2023. Respectfully submitted, /s/ Brandon J. Hill BRANDON J. HILL Florida Bar Number: 0037061 LUIS A. CABASSA Florida Bar Number: 0053643 WENZEL FENTON CABASSA, P.A. 1110 N. Florida Avenue, Suite 300 Tampa, Florida 33602 Main Number: 813-224-0431 Direct Dial: (813) 379-2565 Facsimile: 813-229-8712 Email: bhill@wfclaw.com Email: lcabassa@wfclaw.com Attorneys for Plaintiff 41363747.2 15 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 25th day of April, 2023, I electronically filed the foregoing with the Clerk of Court by using the ECF system and a true and correct copy was furnished via electronic mail to: John A. Turner, Esq. Saul Ewing Arnstein & Lehr LLP 515 N. Flagler Drive, Suite 1400 West Palm Beach, FL 33401 john.turner@saul.com susan.brown@saul.com wpb-ctdocs@saul.com Alexander Reich, Esq. E. Jason Tremblay, Esq. Saul Ewing LLP 161 N. Clark Street, Suite 4200 Chicago, IL 60601 alexander.reich@saul.com jason.tremblay@saul.com Attorneys for Defendants /s/Brandon J. Hill BRANDON J. HILL 41363747.2 16 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 16 EXHIBIT 1 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 17 THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION SHARLEY BASS, on behalf of Herself and all others similarly Situated, Plaintiff, CASE NO.: v. MED-CALL HEALTHCARE, INC., and RISHER DUMPIT, Individually, Defendants. _________________________/ SETTLEMENT AGREEMENT I. Introduction This Settlement Agreement (“Agreement” or “Settlement Agreement”) is made and entered into by and between Plaintiff, Sharley Bass (hereinafter “Plaintiff,” “Named Plaintiff” or the “Class Representative”), on her own behalf and on behalf of the Settlement Class, defined below and described herein, and Med-Call Healthcare, Inc., and Risher Dumpit, Indiv. (collectively “Med-Call” or “Defendants”) (Med-Call and Plaintiff are collectively, the “Parties”). II. Recitals A. Named Plaintiff, Sharley Bass, filed a Class Action Complaint styled Sharley Bass, on behalf of herself and on behalf of all others similarly situated, v. Med-Call HealthCare, Inc., and Risher Dumpit, Individually, in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida (the “FLSA Litigation” or the “Action”), following dismissal of the federal action, Bass v. Med-Call HealthCare, Inc., and Risher Dumpit, M.D., Fla. Case No. 22-cv-0244-CEH-TGW, asserting claims against Med-Call under the Fair Labor Standards Act (“FLSA”) and for unpaid wages under Florida common law on behalf of herself and on behalf of 41363731.2 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 18 a proposed class of similarly situated individuals. The Parties have since reached an agreement that, if approved by this Court, will resolve all claims of the Named Plaintiff and each of the approximately 296 putative class members in Florida. B. The Action generally alleges that Med-Call violated the FLSA by failing to comply with the FLSA’s overtime requirements. Specifically, the Action alleges that Med-Call failed to include compensable on-call and travel time in its overtime payments and also failed to include hourly stipends in calculating the overtime rate for its nurses and nursing assistants at vaccination sites in violation of 29 U.S.C. § 207. Med-Call denies Plaintiff’s allegations and denies that it committed any violation of the FLSA or Florida law with respect to Plaintiff or the Settlement Class. C. The lawsuit was originally filed in United States District Court for the Middle District of Florida, Tampa Division on January 31, 2022, styled Sharley Bass, on behalf of herself and on behalf of all others similarly situated, v. Med-Call HealthCare, Inc., and Risher Dumpit, Individually, Case No. 8:22-cv-0244-CEH-TGW. Thereafter, the Parties extensively litigated this matter, engaged in substantive written discovery, and engaged in early mediation. D. On May 31, 2022, the Parties participated in mediation with highly-respected mediator, Carlos J. Burruezo. No settlement was reached at mediation. However, the parties continued their arm’s length negotiations and ultimately reached an agreement which, if approved by the Court, will resolve all claims of Plaintiff and each of the 296 Florida-based putative class members for whom are owed overtime wages and unpaid wages, and will provide valuable monetary relief and certain other consideration set forth below. E. Med-Call denies it engaged in any wrongdoing, denies any actual or potential fault, wrongdoing, or liability in connection with any facts or claims that have been or could have been alleged against it in the Action, denies that the claims asserted by Plaintiff are suitable for class 2 41363731.2 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 19 treatment other than for settlement purposes, denies that it has any liability whatsoever with respect to Plaintiff or the Settlement Class, but enters into this Agreement because of the substantial expense of litigation, the length of time necessary to resolve the issues presented, the inconvenience involved, and the disruption to its operations. This Agreement is not, and shall not, in any way be deemed to constitute an admission or evidence of any wrongdoing or liability on the part of Med-Call, nor of any violation of any federal, state, or municipal statute, regulation, principle of common law or equity. F. The attorneys representing the Settlement Class defined below (“Class Counsel”) are experienced in litigating class action claims of the type involved in this Action. G. The Parties and their respective attorneys of record, taking into account the risks, uncertainties, delay, and expense involved in the Action, as well as other relevant considerations, believe that it is in the best interests of all Parties and the putative class to compromise and fully and finally settle this Action in the manner and upon the terms and conditions hereinafter set forth. The Parties intend that this Settlement Agreement will end and encompass all pending, threatened, or possible litigation and/or claims against Med-Call, and Med-Call’s affiliates, that arise out of or relate to the Action or that could have been brought in this Action, upon entry of a final order approving this settlement and this Agreement. H. The relief provided to the Class Members and the procedures set forth in this Agreement for the distribution of relief provide fair, flexible, speedy, cost-effective, and assured value to the Class Members. Thus, this Agreement provides considerable benefit to the Class Members while avoiding costly litigation of difficult and contentious issues. I. Based on Class Counsel’s extensive analysis of the law and facts at issue in this Action, and the fair, flexible, speedy, cost-effective, and assured procedures for providing the settlement benefits to the Class Members, the Class Representative (on advice of Class Counsel) 3 41363731.2 4/25/2023 10:18 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 20 has determined that this settlement with Med-Call on the terms set forth below is fair, adequate, and reasonable, and thus in the best interests of the Class Members. III. Definitions. For purposes of this Agreement, the following definitions shall apply: A. The “Action” shall refer to this lawsuit throughout its pendency and including all venues and forums during that pendency. B. “Agreement” or “Settlement Agreement” means this Settlement Agreement. C. “Class Representative” or “Named Plaintiff” or “Plaintiff” means Sharley Bass. D. “Class Co