Opinion
CASE NO. 2:10-CV-64.
August 9, 2010
FOR DEFENDANT: Brian J. Ballenger, Bar Number: 0030390, Attorney for Defendant Healthcare, Services Group, Inc., Ballenger Moore Co., L.P.A., Toledo, OH.
FOR PLAINTIFFS: Katherine A. Stone, Bar Number: 0085600, Robert E. DeRose, Bar Number: 0055214, Shannon R. Baith, Bar Number: 0082362, Attorneys for Plaintiff, Barkan Neff Handelman Meizlish, LLP, Columbus, OH.
CONSENT DECREE AND ORDER
WHEREAS, on January 22, 2010, Jason Rhoads and Casey Stebbins ("Plaintiffs") commenced the above-captioned action by filing with this Court a Complaint asserting that Defendants Healthcare Services Group, Inc. ("HSG"), London Care, LLC dba Arbors at London ("LC"), and Extendicare Health Services, Inc. ("Extendicare") (HSG, LC, and Extendicare will collectively be referred to as "Defendants") failed to pay them in accordance with the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., the Ohio Fair Minimum Wage Standards Act, Ohio Rev. Code §§ 4111, et seq., and the Ohio Prompt Pay Act, Ohio Revised Code §§ 4113.15, et seq. (the Ohio Fair Minimum Wage Standards Act and the Ohio Prompt Act will be collectively referred to herein as "the Ohio Act."). WHEREAS, throughout the ensuing litigation, Defendants consistently denied all liability, and continue to do so;
WHEREAS, on June 16, 2010, the Parties were to participate in Court supervised mediation before Mediator Jeffrey W. Hutson, through their respective legal counsel and after extensive arms-length bargaining the Parties have agreed, prior to the mediation, to resolve all legal claims set forth in the Complaint without any admission of liability by Defendants;
WHEREAS, the agreed-upon settlement requires Defendant HSG to make a monetary payment that will result in Plaintiffs recovering a fair, reasonable, and adequate payment for the unpaid wages sought in this action;
WHEREAS, Plaintiffs' undersigned counsel has determined and hereby represents to the Court that the settlement is a fair, reasonable, and adequate resolution of Plaintiffs' FLSA and Ohio Act claims in light of the all the risks inherent in continued litigation;
WHEREAS, Plaintiffs' undersigned counsel has determined and hereby represents to the Court that the attorney's fees recovered herein is significantly less than counsel's current accumulated lodestar amount;
WHEREAS, the Parties understand and agree to the settlement terms outlined herein and, after extensive deliberations with the undersigned counsel, desire to resolve this action under such terms described herein;
NOW, THEREFORE, IT IS HEREBY AGREED, that:
1. The settlement agreement detailing the specific terms of the settlement of this action is attached to this Consent Decree as Attachment A and is incorporated herein;
2. Defendant HSG shall pay to Plaintiffs and their legal counsel the total, combined amount of $6,000.00 to be distributed as follows: (i) by August 6, 2010, Jason Rhoads shall receive $1,905.00, less all applicable payroll taxes and withholdings; (ii) by August 6, 2010, Casey Stebbins shall receive $795.00, less all applicable payroll taxes and withholdings; (iii) by August 6, 2010, the law firm of Barkan Neff Handelman Meizlish, LLP ("BNHM") shall receive $3,300.00; (iv) Mr. Rhoads and Mr. Stebbins will receive a 2010 W-2 for their respective amounts and Defendant HSG will make all necessary payroll and withholding contributions in 2010; and (v) BNHM accepts the $3,300.00 described above to cover all accumulated attorney's fees, costs, and litigation expenses. The $6,000.00 payment, plus the amount Defendant HSG must withhold as the employer's contribution for the wage and withholding taxes, shall fully compensate Plaintiffs and their legal counsel for all monies sought in this action, including, inter alia, unpaid wages, unpaid overtime, unpaid minimum wage, liquidated damages, interest, and recoverable attorney's fees and costs; and
3. In exchange for the above consideration and upon payment of all installments detailed in section 2 above, Plaintiffs agree to file a Dismissal of this action, with prejudice, and waive and release all claims accruing anytime prior to the entry of this Consent Decree and execution of the above-referenced settlement agreement against Defendants or any of its agents, affiliates, departments, officers, or related entities or individuals for alleged violations of the FLSA and the Ohio Act or any other legal claims that could have been asserted by Plaintiffs against such parties.
4. In exchange for the above consideration, Defendants agree to waive and release any and all claims accruing any time prior to the execution of this Settlement Agreement and entry of the Consent Decree against Plaintiffs or any of their agents that could have been asserted by Defendants against such parties.
5. The Parties agree that they will not communicate or disclose the terms of this Settlement Agreement to any persons other that of a spouse, their attorney, their accountant and/or tax consultant, or as otherwise protected by law.
6. If Defendant HSG fails to make any payment as described in paragraph 2 above, and should Defendant HSG fail to remedy such failure within 7 days of written notice by Plaintiffs, Plaintiffs shall be entitled to recover all reasonable attorney fees and costs incurred in pursuing recovery of the amounts due hereunder.
NOW, this 9 day of August, 2010, upon consideration of the above representations of counsel and all other papers and proceedings herein, it is hereby ORDERED that the settlement of this action is APPROVED, pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), as a fair, reasonable, and adequate compromise of Plaintiffs' FLSA and Ohio Act claims. Upon payment of the settlement installment as described in paragraph 2 above, the parties are directed to file a Joint Dismissal within 10 business days of the final payment. If the Joint Dismissal is not filed accordingly, this case is to be set for a Status Conference.