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Binissia v. ABM Industries, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 21, 2017

BRICE IKBY BINISSIA and HALINA SUCHECKA, individually and on behalf of all others similarly situated, Plaintiffs,
ABM INDUSTRIES, INC., et al., Defendants. VERONICA BROWN, individually and behalf of all others similarly situated, Plaintiffs,
ABM INDUSTRIES, INC., et al., Defendants.



         The court consolidated these two Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., collective actions after the parties announced that they had reached a global settlement agreement in principle.[1] (Minute Entry, Sept. 27, 2016, ECF No. 462 (granting unopposed motion to consolidate “for the purposes of settlement”).) About two months later, the parties jointly moved for approval of their proposed settlement agreement and notice to opt-in plaintiffs.

         The court has ordered the parties to submit two rounds of supplemental evidence and briefing focusing on the amount earmarked by the proposed settlement agreement to pay plaintiffs' attorneys. Though the court finds the proportion of attorneys' fees to employee recovery concerning, it approves the settlement primarily because a very similar settlement has been approved in related litigation.

         I. BACKGROUND

         These two cases, Binissia and Brown, see supra note 1, mark the next chapters in the FLSA litigation begun in Las v. ABM Industries, Inc. , No. 11 cv 5644 (N.D. Ill.). The named plaintiffs in Las made allegations similar to those made in the consolidated cases; they sued on behalf of themselves and a group of allegedly similarly situated Illinois janitors. The case settled during discovery, and 1, 949 janitors submitted timely claim forms. (Order Granting Final Approval of Class Settlement ¶ 13 (“Las Approval Order”), Las v. ABM Indus. Inc., No. 11 cv 5644, ECF No. 88 (N.D. Ill. Oct. 17, 2012).) The claims administrator also received about 200 late claims forms, but ABM declined to pay them under the settlement. (Mem. Supp. Mot. Approval 1, ECF No. 474.) Members of that group of janitors then initiated the Binissia litigation in February 2013. (Id.)

         In sum, 6, 193 janitors have opted into the consolidated cases as plaintiffs. Like the plaintiffs in Las, they allege that the defendants violated the FLSA by not paying them overtime wages earned for the minutes spent gathering supplies and loading their cleaning carts before the start of their scheduled shifts. Plaintiffs further allege that the defendants used an unfair rounding system that ensured that janitors who clocked in before the start of their shifts did not get paid for pre-shift work. The plaintiffs in Binissia used an electronic system to record their time while the Brown plaintiffs used handwritten timesheets.

         Unlike the Las class, the classes in these cases cover more than one state, and more employees have opted into these cases. The settlement class approved by Judge Nordberg in Las consisted of Illinois janitors only. (See Las Approval Order ¶ 3 (defining class to include Illinois janitors employed by ABM from Apr. 6, 2008-Jan. 7, 2012).) In these cases, by contrast, this court conditionally certified an opt-in class in Binissia on February 26, 2014, consisting of janitors in ABM's north central or northeast regions during the relevant time period.[2] After conducting initial discovery, the parties in Brown stipulated to sending notice to a putative national class of janitors who recorded their hours exclusively on handwritten timesheets. (See Stipulation ¶ 4, Brown, ECF No. 75-1; see also Brown, ECF No. 78 (granting motion to approve stipulation and conditionally authorizing notice to putative class members).)

         The certification of more geographically diverse classes in these cases has resulted in more costly and complex litigation. The record shows, for instance, that counsel took sixty-seven fact witness depositions in Binissia and that over 400, 000 pages of documents were produced. (Mem. Supp. Mot. Approval 6, ECF No. 474.) The class members worked at over 10, 000 different locations under different supervisors under forty-five separate collective bargaining agreements. (Id. at 2-3.) Based on all of this, plaintiffs' counsel considers full or partial decertification to be a substantial risk.

         A. The Proposed Settlement

         The parties claim that “[t]his is not a common fund” case. (Mem. Supp. Mot. Approval 7, ECF 474.) The proposed settlement allocates $1, 011, 236.59 to gross wage payments. They seek $3, 463, 763.41 in attorneys' fees, plus reimbursement of $325, 000.01. Each opt-in plaintiff receives a fixed amount for each rounded work week. (See Mem. Supp. Mot. Approval 7-8.) For work weeks with between 40 and 42.5 hours, the employee receives $2.47. For work weeks with more than 42.5 hours, the employee receives $4.93. See Id. The difference, explain the parties, results from ABM's possible set-off defense. Some, but not all, potential opt-in class members took thirty-minute meal breaks; if ABM is entitled to a set-off for five, thirty-minute breaks a week, up to 2.5 hours of uncompensated time per week would be effectively cancelled. (Id. at 19.)

         The parties base their figures on a representative sampling of the class. (See id. at 7.) On average, each employee earned approximately $12 per hour and worked approximately 12 minutes a day preparing cleaning supplies and doing other arguably compensable work. At time-and-a-half, that works out to $18 per week. (See Id. at 22.) So the $2.47 per week settlement amount comes out to 13.7% of the employee's maximum liquidated claim, and the $4.93 comprises 27% of the theoretical $18 liquidated claim.

         As this court has previously observed (April Briefing Order 4, ECF No. 487), class members receive 13% or 27% of their maximum liquidated claim, and class counsel earn 50% of their fees, netting 76% of the total amount paid under the proposed settlement agreement.

         B. Proceedings After the Motion for Approval

         On December 21, 2016, this Court directed the parties to amend the proposed Settlement Agreement to include an option for class members to object to the terms of the settlement. (ECF No. 476.) They have amended their proposed settlement agreement accordingly. On January 5, 2017, this court ordered the plaintiffs to provide more detailed information documenting plaintiffs' claimed attorneys' fees. (ECF No. 478.) In April 2017, the court directed the parties to brief whether common fund principles applicable in Federal Rule of Civil Procedure 23 class approval proceedings had any bearing on whether the proposed settlement should be approved. (ECF No. 487.) The parties submitted a supplemental memorandum of law and accompanying exhibits on April 26, 2017. (ECF No. 491-1.)


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