REPORT AND RECOMMENDATION
GREGORY J. KELLY, Magistrate Judge.
This cause came on for consideration without oral argument on the following motion filed herein:
I. FACTUAL BACKGROUND
On July 25, 2016, Plaintiff filed a complaint against Defendants alleging unpaid overtime in violation of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq. Doc. No. 1. On October 3, 2016, Plaintiff filed his answers to the Court's interrogatories. Doc. No. 19. In his answers, Plaintiff did not provide a precise calculation of alleged damages. Id. at 2. Instead, he states that he "will provide a more precise calculation upon receipt of Defendants' complete production of weekly payroll information . . ." Id. On November 16, 2016, Plaintiff filed a notice of settlement. Doc. No. 22. Thus, the parties settled their case before Plaintiff provided a precise calculation of his alleged damages.
On December 29, 2016, the parties filed a joint motion to approve their FLSA settlement agreement and dismiss the case with prejudice (the "First Motion"). Doc. No. 25. On February 2, 2017, the undersigned denied the First Motion because separate consideration was not given for: 1) the broad general release; and 2) the confidentiality provision. Doc. No. 26 at 3-7. On April 17, 2017, the parties filed a joint motion (the "Renewed Motion") to approve their revised FLSA settlement agreement (the "Agreement") and dismiss the case with prejudice. Doc. No. 29. The matter has been referred to the undersigned for a report and recommendation. Doc. No. 12. For the reasons that follow, the undersigned recommends that the Agreement be approved with certain modifications and the case be dismissed with prejudice.
II. APPLICABLE LAW
In Lynn's Food Stores, Inc. v. United States Department of Labor, 679 F.2d 1350, 1352-53 (11th Cir. 1982), the Eleventh Circuit addressed the means by which an FLSA settlement may become final and enforceable:
Thus, unless the parties have the Secretary of Labor supervise the payment of unpaid wages owed or obtain the Court's approval of the settlement agreement, the parties' agreement is unenforceable. Id. Before approving an FLSA settlement, the Court must scrutinize it to determine if it is a fair and reasonable resolution of a bona fide dispute. Id. at 1354-55. If the settlement reflects a reasonable compromise over issues that are actually in dispute, the Court may approve the settlement. Id. at 1354.
In determining whether the settlement is fair and reasonable, the Court should consider the following factors:
See Leverso v. SouthTrust Bank of Ala., Nat'l Assoc., 18 F.3d 1527, 1531 n.6 (11th Cir. 1994); Hamilton v. Frito-Lay, Inc., No. 6:05-cv-592-Orl-22JGG, 2007 WL 328792, at *2 (M.D. Fla. Jan. 8, 2007), report and recommendation adopted, 2007 WL 219981 (M.D. Fla. Jan. 26, 2007). The Court should be mindful of the strong presumption in favor of finding a settlement fair. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977).
In FLSA cases, the Eleventh Circuit has questioned the validity of contingency fee agreements. Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009) (citing Skidmore v. John J. Casale, Inc., 160 F.2d 527, 531 (2d Cir. 1947) ("We have considerable doubt as to the validity of the contingent fee agreement; for it may well be that Congress intended that an employee's recovery should be net")). In Silva, the Eleventh Circuit held:
Id. at 351-52.
An alternate means of demonstrating the reasonableness of attorney fees and costs was set forth in Bonetti v. Embarq Mgmt. Co., 715 F.Supp.2d 1222 (M.D. Fla. 2009). In Bonetti, the Honorable Gregory A. Presnell held:
Id. at 1228 (emphasis added). Judge Presnell maintained that if the matter of attorney fees is "addressed independently and seriatim, there is no reason to assume that the lawyer's fee has influenced the reasonableness of the plaintiff's settlement." Id. The undersigned finds this reasoning persuasive.
A. The Settlement Terms
In exchange for a release of claims, waiver of future employment, and jury trial waiver, Plaintiff has agreed to accept a total amount of $500. Doc. No. 29 at 6. The $500 comprises $250 in unpaid wages and $250 in liquidated damages. Id. As noted above, Plaintiff did not provide a precise calculation of his alleged damages. Doc. No. 19 at 2. Thus, it is unclear whether Plaintiff compromised his FLSA claim. Nevertheless, the First Motion states that a bona fide dispute existed between the parties. Doc. No. 25 at 1. After considering the risks of litigation, the parties decided to settle their dispute amicably. Id. at 4. The parties are represented by independent counsel who are experienced in handling FLSA claims. Id. at 6. The parties also state that they have exchanged Plaintiff's payroll records and that there was no undue influence, collusion, or intimidation in creating the Agreement. Id. at 2, 4. Considering the foregoing, and the strong presumption favoring settlement, the undersigned recommends that the Court find the settlement amount to be fair and reasonable.
B. The Release
Doc. No. 29 at 5 (emphasis added). Thus, the Agreement's release appears to be limited to claims related to the payment of wages or the lack thereof. Id. However, the release's final clause can be interpreted to be a general release. See id. ("arising out of any known or unknown fact, condition, or incident occurring prior to the date of this Agreement . . ."). This Court has required separate consideration for releases, but only when such releases are broad, general, and not limited to certain claims. See Moreno v. Regions Bank, 729 F.Supp.2d 1346, 1351-52 (M.D. Fla. 2010); Middleton v. Sonic Brands L.L.C., Case No. 6:13-cv-386-Orl-28KRS, 2013 WL 4854767, at *3 (M.D. Fla. Sept. 10, 2013) (approving a settlement agreement providing $100 as separate consideration for a general release). Here, the release appears to be limited to claims related to the payment of wages or the lack thereof, but the Court is concerned about the final clause of the release. Doc. No. 29 at 5. The Agreement contains a severability clause. Id. at 8. Based on the foregoing, the undersigned recommends that the Court strike the release only to the extent that it purports to release any claims other than those related to wages.
C. Waiver of Future Employment
The Agreement contains a waiver of future employment. Id. at 6. The undersigned finds that future employment waivers are different from general releases, in that Plaintiff, as a former employee of Defendants, knows exactly what he is relinquishing when agreeing not to seek future employment with Defendants. After reviewing the Agreement, the undersigned finds no indication that the future employment waiver undermines the fairness of the Agreement. Accordingly, the undersigned recommends that the Court find the waiver of future employment to be fair and reasonable.
D. Attorneys' Fees
Under the Agreement, Plaintiff's counsel will receive $3,250 in attorneys' fees. Id. In the First Motion, parties represent that attorneys' fees and costs were negotiated separately from Plaintiff's recovery. Doc. No. 25 at 2. Such a representation adequately establishes that the issue of attorney's fees and costs was agreed upon without regard to the amount paid to Plaintiff. See Bonetti, 715 F. Supp. 2d at 1228. While such representations were not made in the Renewed Motion, the undersigned recommends that the Court accept the parties' representations from the First Motion.
E. Jury Trial Waiver
The Agreement contains a jury trial waiver. Doc. No. 29 at 9. The parties, however, do not state that Plaintiff received separate consideration for relinquishing a jury trial. Furthermore, the parties do not address whether the right to a jury trial may be waived without the plaintiff receiving separate consideration. See Raynon v. RHA/Fern Park Mr., Inc., No. 6:14-CV-1112-ORL-37, 2014 WL 5454395, at *3 (M.D. Fla. Oct. 27, 2014) (severing waiver of jury trial in FLSA settlement agreement, as claim for lost wages under FLSA contains Seventh Amendment jury right, and plaintiff received nothing for the waiver). However, as noted above, the Agreement contains a severability clause. Doc. No. 29 at 8. Based on the foregoing, the undersigned recommends that the Court strike the jury trial waiver.
Based on the foregoing, it is
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected—to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.