United States District Court, M.D. Florida, Fort Myers Division
BRITTANY COHN, on behalf of herself and others similarly situated Plaintiff,
ROTOR HOLDINGS, INC. and PAUL TUROVSKY, Defendants.
REPORT AND RECOMMENDATION 
MIRANDO UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court upon review of Plaintiff's
Second Motion to Approve Settlement (Doc.
23) filed on March 5, 2018. Plaintiff requests
that the Court approve the parties' settlement of the
Fair Labor Standards Act (“FLSA”) claims and
dismiss the case with prejudice. Doc. 23. For the
reasons set forth herein, the Court recommends that the
settlement be APPROVED and Plaintiff's
claim be dismissed with prejudice.
approve the settlement, the Court must determine whether it
is a “fair and reasonable resolution of a bona fide
dispute” of the claims raised pursuant to the FLSA.
Lynn's Food Store, Inc. v. United States, 679
F.2d 1350, 1355 (11th Cir. 1982). There are two ways for a
claim under the FLSA to be settled or compromised.
Id. at 1352-53. The first is under 29 U.S.C. §
216(c), providing for the Secretary of Labor to supervise the
payments of unpaid wages owed to employees. Id. at
1353. The second is under 29 U.S.C. § 216(b) when an
action is brought by employees against their employer to
recover back wages. Id. When the employees file
suit, the proposed settlement must be presented to the
district court for the district court to review and determine
that the settlement is fair and reasonable. Id. at
Eleventh Circuit has found settlements to be permissible when
the lawsuit is brought by employees under the FLSA for back
wages because the lawsuit provides
some assurance of an adversarial context. The employees are
likely to be represented by an attorney who can protect their
rights under the statute. Thus, when the parties submit a
settlement to the court for approval, the settlement is more
likely to reflect a reasonable compromise of disputed issues
than a mere waiver of statutory rights brought about by an
employer's overreaching. If a settlement in an employee
FLSA suit does reflect a reasonable compromise over issues,
such as FLSA coverage or computation of back wages that are
actually in dispute; we allow the district court to approve
the settlement in order to promote the policy of encouraging
settlement of litigation.
Id. at 1354. “Short of a bench trial, the
Court is generally not in as good a position as the parties
to determine the reasonableness of an FLSA settlement. . . .
If the parties are represented by competent counsel in an
adversary context, the settlement they reach will, almost by
definition, be reasonable.” Bonetti v. Embarq Mgmt.
Co., 715 F.Supp.2d 1222, 1227 (M.D. Fla. 2009).
Nevertheless, the Court must scrutinize the settlement to
determine whether it is a “fair and reasonable
resolution of a bona fide dispute.” Lynn's Food
Store, Inc., 679 F.2d at 1355.
Brittany Cohn on behalf of herself and others similarly
situated filed a Complaint and Demand for Jury Trial, seeking
recovery of overtime compensation under the FLSA against
Defendants Rotor Holdings, Inc. (“Rotor”) and
Paul Turovsky (collectively, “Defendants”).
Doc. 1. Rotor is a Florida corporation engaged in
business in Lee County, Florida. Id. ¶ 4.
Turovsky managed and operated Rotor and regularly exercised
the authority to hire and fire employees of Rotor and
determine the employees' work schedules. Id.
¶¶ 6-8. Defendants employed Plaintiff as an office
assistant from March 2017 to June 2017. Id.
¶¶ 22, 25. Plaintiff claims that during the term of
her employment, she was not paid any overtime premium for all
hours worked in excess of forty (40) hours within a workweek.
Id. ¶¶ 26-27. Plaintiff also alleges
Defendants failed to maintain proper time records.
Id. ¶ 34.
have not appeared in this action. Instead, on September 27,
2017, Plaintiff requested the Court to approve the
parties' settlement of her FLSA claim and dismiss the
action. Doc. 16. The Court denied without prejudice
this motion because Plaintiff engaged in settlement
discussions with Defendants without her counsel present, and
the proposed settlement agreement contained a mutual general
release of claims and did not specify the payment of
Plaintiff's attorney's fees and costs. Doc.
18. On January 9, 2018, Plaintiff moved for the
Clerk's entry of default against Defendants, which the
Court granted. Docs. 20, 21. On February 27, 2018, the Clerk
entered a default against Defendants. Docs. 22. On March 5,
2018, Plaintiff filed this motion to approve the parties'
settlement agreement with an addendum. Docs. 23, 23-1, 23-2.
proposed settlement agreement, Rotor agrees to pay Plaintiff
a settlement amount totaling $2, 000.00 in consideration for
her underlying claim for overtime compensation. Doc.
23-1 ¶ 5. The agreement represents the parties have
been fully advised by their counsel as to the terms of the
agreement, engaged in extensive settlement discussions
through their respective counsel and voluntarily entered into
this agreement. Id. at 1, 4. Plaintiff further
believes the settlement amount is a fair and reasonable
settlement of all work she performed for Defendants, and the
settlement agreement is fair and reasonable. Doc. 23 at
on the parties' representations and the policy in this
circuit of promoting settlement of litigation, the Court
recommends the monetary terms of the proposed settlement to
be a fair and reasonable compromise of the dispute. Other
courts in this district similarly have approved settlements
for a compromised amount in light of the strength of the
defenses, the complexity of the case, and the expense and
length of continued litigation. See e.g., Diaz
v. Mattress One, Inc., No. 6:10-CV-1302-ORL-22, 2011 WL
3167248, at *2 (M.D. Fla. July 15, 2011), report and
recommendation adopted, 2011 WL 3166211 (M.D. Fla. July 27,
2011); see also Dorismond v. Wyndham Vacation Ownership,
Inc., No. 6:14-cv-63-Orl-28GJK, 2014 WL 2861483 (M.D.
Fla. June 24, 2014); Helms v. Ctr. Fla. Reg'l
Hosp., No. 6:05-cv-383-Orl-22JGG, 2006 WL 3858491 (M.D.
Fla. Dec. 26, 2006).
Court further notes the proposed settlement agreement
contains a mutual general release of claims and
Plaintiff's separate general release of claims. Doc.
23-1 at 2-3, 23-2 at 1-2. In FLSA cases, general
releases typically are disfavored because “a pervasive
release in an FLSA settlement confers an uncompensated,
unevaluated, and unfair benefit on the employer.”
Moreno v. Regions Bank, 729 F.Supp.2d 1346, 1352
(M.D. Fla. 2010) (holding that the proposed FLSA settlement
agreement was unfair and precludes evaluation of the
compromise because of the pervasive and unbounded scope of
Court as well as other courts within this district have
approved general releases in FLSA cases when the plaintiff
receives compensation that is separate and apart from the
benefits to which plaintiff is entitled under the FLSA.
Davis v. JP Sports Co lectibles
Inc., No. 2:16-cv-154-FtM-CM, 2016 WL 7474571, at *2
(M.D. Fla. Dec. 29, 2016) (approving the settlement agreement
with mutual general releases because the plaintiffs received
independent consideration for their individual general
releases); Weldon v. Backwoods Steakhouse, Inc.,
6:14-cv-79-Orl-37TBS, 2014 WL 4385593, at *4 (M.D. Fla. Sept.
4, 2014); Buntin v. Square Foot Management Company,
LLC, 6:14-cv-1394-Orl-37GJK, 2015 WL 3407866, at *2
(M.D. Fla. May 27, 2015); Raynon v. RHA/Fern Park MR.,
Inc., 6:14-cv-1112-Orl-37TBS, 2014 WL 5454395, at *3
(M.D. Fla. Oct. 27, 2014).
Buntin, the court approved a settlement agreement
that contained a general release because it was supported by
independent consideration apart from that owed to him under
the FLSA, specifically a mutual general release and a
specific neutral reference by defendant. Buntin,
2015 WL 3407866, at *3. Other courts also have found mutual
general releases to confer a benefit on plaintiff, and thus
acceptable. Capers v. Noah's Ark Repair Serv.,
Inc., No. 6:11-cv-457-ORL-28TB, 2013 WL 3153974, at *3
(M.D. Fla. June 19, 2013) (approving agreement as fair and
reasonable where containing a mutual general release, finding
that “[it] also confer[s] a benefit upon
Plaintiff.”); Vergara v. Delicias Bakery &
Rest., Inc., No. 6:12-cv-150-Orl- 36KRS, 2012 WL
2191299, at *2-3 (M.D. Fla. May 31, 2012), report and
recommendation adopted, 2012 WL 2191492 (M.D. Fla. Jun.14,
2012) (approving settlement agreement where general release
by employee was exchanged for a mutual release by employer).
Rotor will provide a separate compensation of
$500.00 and its reciprocal general release of
claims in exchange for Plaintiff's general release of
claims. Docs. 23-1 at 2-3, 23-2 at 1. The Court recommends
Rotor's reciprocal general release and compensation of
$500.00 constitute sufficient independent consideration for
Plaintiff's general release. Docs. 23-1 at 2-3, 23-2 at
1; see Buntin, 2015 WL 3407866, at *3 (approving a