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Settlement approved in EMS overtime suit

Virginia Lawyers Weekly//January 3, 2022

Settlement approved in EMS overtime suit

Virginia Lawyers Weekly//January 3, 2022

The City of Virginia Beach will pay $200,000 to settle a lawsuit brought by EMS captains, alleging they were improperly classified and thus denied overtime under the Virginia Gap Pay Act, or VGPA, and the Fair Labor Standards Act, or FLSA. Approximately 40% of the payment will go to the plaintiffs’ lawyers.


Plaintiffs are current and former EMS captains employed by the City of Virginia Beach. They allege that defendant improperly classified them as “exempt” employees who were not “fire protection employees” within the meaning of the VGPA, thereby depriving them of overtime pay and other benefits in violation of the FLSA and the VGPA. This matter comes before the court on the parties’ joint motion to approve settlement agreement.

Bona fide dispute

As illustrated by the parties’ cross motions for summary judgment, the parties disagree as to whether plaintiffs are entitled to the overtime pay demanded under the relevant FLSA and VGPA provisions. The parties agree that several confounding factors make the ultimate outcome of a trial uncertain. The settlement agreement thus resolves a bona fide dispute between the parties concerning plaintiffs’ entitlement to unpaid overtime.

Fair and reasonable

The court next addresses whether the settlement agreement “is a fair and reasonable resolution” of the parties’ dispute. Based upon the extent of discovery that has taken place; the stage of the proceedings, including the complexity, expense and likely duration of the litigation; that there is no evidence that fraud, collusion or a conflict of interest tainted the bargaining process; the experience of the plaintiffs’ counsel and that there is conflicting case law concerning plaintiffs’ exemption status, the court finds the settlement agreement to be a fair and reasonable resolution of a bona fide dispute over FLSA provisions.

Attorneys’ fees

The settlement agreement provides for the firm to be paid $80,000, or 40% of the total payment defendant must tender. This is a reasonable fee award in light of the hours reasonably invoiced by firm attorneys and expenses reasonably incurred in this matter.

The hourly rates charged by plaintiffs’ counsel are reasonable, as they are consistent with the rates underlying other FLSA fee awards approved in this district. Moreover, plaintiffs’ counsel are highly experienced in FLSA wage and hour actions. Importantly, the rates charged are tied to the experience of the billing attorneys and are a reduction from the rates the attorneys normally charge in the D.C. metropolitan area, where the firm is based.

The billing statement reflects fees of $191,648. The court recognizes that a substantial amount of work was required to move this case forward to trial, and notes that no entries in the billing statement reveal fees invoiced to this matter for unrelated work. However, the billing statement contains a substantial number of individual entries documenting invoiced time attributed to more than one task. The block billing did not entirely disable the court from assessing the reasonableness of the hours billed. It did, however, undermine the court’s ability to precisely and confidently assess the reasonableness of time spent on tasks which were “lumped” together and assigned an aggregated time. The court finds that a 5% reduction in the fees billed by the firm is proper.

The billing statement reflects expenses of $13,884.69. The court finds that the requested reimbursement is warranted in light of the firm’s documented expenses and the substantial volume of filings in this matter. Therefore the court finds that $195,950.29 (95% of the fees invoiced plus the firm’s full expenses) is an appropriate lodestar.

Joint motion to approve settlement agreement granted.

Baost v. City of Virginia Beach, Case No. 2:20-cv-595, Dec, 8, 2021. EDVA at Norfolk (Smith). VLW 021-3-541. 21 pp.

VLW 021-3-541

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