UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. [INSERT]:17-CV-[INSERT]-ROSENBERG/[INSERT]
[INSERT],
Plaintiff,
v.
[INSERT],
Defendant.
_____________________________/
ORDER OF COURT-MANDATED REQUIREMENTS
IN FLSA-BASED CASES AND ORDER REQUIRING MEDIATION
THIS MATTER is before the Court upon the filing of an action under the Fair Labor
Standards Act, as amended, 29 U.S.C. §201 et seq. (“FLSA”), by which the Plaintiff seeks unpaid
wages. To expedite resolution of this matter, the parties are instructed to comply with the following
requirements.
I. STATEMENT OF CLAIM
To assist the Court in the management of the case, the Plaintiff is ORDERED to file with the
Court a statement of claim setting forth the amount of the alleged unpaid wages, the calculation of
such wages, and the nature of the wages (e.g. overtime or regular) within twenty-one (21) days from
the date of this Order. The statement of claim shall also include all attorney’s fees and costs incurred
to date. With respect to attorney’s fees, counsel must provide the hourly rate sought and the number
of hours expended by each person billing time. Also within that allotted time, the Plaintiff shall serve
a copy of this Order, the statement of claim, and copies of all documents supporting the claim (e.g.
time slips, pay stubs) on the Defendant’s counsel. The Plaintiff shall, on that same date, additionally
file a notice of full compliance with this Order.
The Defendant, within fourteen (14) days of service of the Plaintiff’s statement of claim, is
ORDERED to file with this Court a response to the Plaintiff’s statement, and provide the Plaintiff
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with copies of all documents supporting its defenses. Concurrently, the Defendant shall file a notice
of full compliance with this Order. Failure to comply with this Order may result in default,
dismissal, and/or sanctions.
II. SETTLEMENT APPROVAL
Because FLSA rights cannot be abridged by contract or otherwise waived, claims arising
under the FLSA may be compromised only with the approval of the Court or the Secretary of Labor.
See Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-53 (11th Cir. 1982). In a suit
brought by employees under the FLSA, the Court must determine whether a settlement proposed by
the employer and employees “is a fair and reasonable resolution of a bona fide dispute over FLSA
provisions.” Id. at 1355. In doing so, the Court considers such factors as “(1) existence of fraud; (2)
complexity of the case; (3) the point of the proceedings when the settlement occurs; (4) the
probability of success on the merits; (5) the range of possible recovery; and (6) counsel’s opinion.”
McHone v. Donald P. Hoekstra Plumbing, Inc., No. 10-60322-CIV, 2010 WL 4625999, at *1 (S.D.
Fla. Nov. 4, 2010); see also Leverso v. SouthTrust Bank of Ala., Nat’l Ass’n., 18 F.3d 1527, 1530 n.6
(11th Cir. 1994). Finally, the “FLSA requires judicial review of the reasonableness of counsel’s legal
fees to assure both that counsel is compensated adequately and that no conflict of interest taints the
amount the wronged employee recovers under a settlement agreement.” Silva v. Miller, 307 F. App’x
349, 351 (11th Cir. 2009).
Confidentiality provisions are, at best, strongly disfavored in the settlement of FLSA claims.
See Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1242-43 (M.D. Fla. 2010) (“A confidentiality
provision in an FLSA settlement agreement both contravenes the legislative purpose of the FLSA and
undermines the Department of Labor's regulatory effort to notify employees of their FLSA rights. . . .
The district court should reject as unreasonable a compromise that contains a confidentiality
provision, which is unenforceable and operates in contravention of the FLSA.”); see also Webb v.
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CVS Caremark Corp., No. 5:11-CV-106 (CAR), 2011 WL 6743284, *3 (M.D. Ga. Dec. 23, 2011)
(holding that, “in light of the Court’s ruling that it will not seal any settlement agreements, it is likely
that the confidentiality provisions are unenforceable” and, moreover, such a provision “contravenes
the legislative purpose of the FLSA”). However, some courts have approved FLSA settlement
agreements with a confidentiality clause upon a showing of a “compelling reason.” Crabtree v.
Volkert, Inc., No. 11-0529-WS-B, 2013 WL 593500, *4 (S.D. Ala. Feb. 14, 2013).
Accordingly, it is hereby ORDERED that any motion for settlement approval filed in this
case should do the following:
a. Attach a copy of the settlement agreement.
b. State whether the settlement agreement would result in a complete recovery of all wages
that plaintiff(s) claimed to be owed.
c. Explain, with specificity, the nature of the parties’ bona fide dispute and why the
settlement agreement represents a fair and reasonable resolution of that dispute, in light of
the factors outlined above.
d. If the settlement agreement provides for the recovery of attorney’s fees, explain how the
fees were calculated and why the amount of the fees is reasonable. If the fees were
calculated on an hourly basis, records of counsel’s time should be attached.
e. If the settlement agreement contains a confidentiality provision, explain why the parties
believe such a provision is warranted.
Failure to comply with these requirements may result in denial of the motion for
settlement approval.
III. MEDIATION
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Pursuant to Local Rule 16.2, this case is referred to mediation as follows:
a. Mediation shall be completed within twenty (20) days after the date
that Defendant’s response is due to Plaintiff’s statement of claim;
b. The parties shall, within fourteen (14) days of the rendition of this
Order, 1 agree upon a mediator and file a Notice with the Court naming
the chosen mediator and stating the date, time, and location for which
mediation has been scheduled. If the parties are unable to agree upon
mediator, they shall ask the Clerk of Court to designate a mediator from
the list of certified mediators on a blind random basis;
c. Counsel for Plaintiff shall be responsible for coordinating a mediation
date, time, and location agreeable to the mediator and all counsel of
record; and
d. Within one (1) day of the mediation conference, the mediator shall file
a Mediation Report indicating who attended the mediation and the
result thereof.
The mediation deadline imposed by this Order may not be extended without prior approval of the
Court and this requirement is in addition to, and not in lieu of, the mediation required prior to
trial pursuant to the Court’s Order Setting Status Conference, Calendar Call, Pretrial
Deadlines, and Trial Date and Order of Reference to Magistrate. Nothing in this Order shall
preclude the parties, however, from seeking to be exempted from additional mediation, should the
parties conclude that additional mediation would not help to resolve this case.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this [DATE] day of [MONTH],
[YEAR].
____________________________
Copies furnished to: ROBIN L. ROSENBERG
All counsel of record UNITED STATES DISTRICT JUDGE
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If no Defendant has appeared within fourteen (14) days of the rendition of this Order, Plaintiff shall,
as an alternative, file the required notice within seven (7) days of an appearance by any Defendant.
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