Case 1:12-cv-00667-BMK Document 106 Filed 07/10/17 Page 1 of 12 PageID #: 913

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI`I

SONYA ADAMS, et al., CIVIL NO. 12-00667 BMK

Plaintiffs, (Other Civil Action -FLSA)

v. REPORT AND
RECOMMENDATIONS OF
SPECIAL MASTER PURSUANT
CITY AND COUNTY OF TO FED. R. CIV. P. 53 AND L.R.
HONOLULU, 53.3; ORDER

Defendant. Trial Date: November 7, 2017

REPORT AND RECOMMENDATIONS OF SPECIAL MASTER

PURSUANT TO FED. R. CIV. P. 53AND L.R. 53.3

Pursuant to Fed. R. Civ. P. 53 and L.R. 53.3, the Special Master hereby

submits the following report and recommendations to the Court:

1. This a Fair Labor Standards Act (hereinafter FLSA) case in under

29 U.S.C. 201, et seq. case, initiated by lead plaintiff Sonya Adams (hereafter the

Collective Representative) on December 12, 2012, and, as of June 1, 2017,

joined by 317 other named Plaintiffs employed by Defendant City and County of

Honolulu (Defendant) as Emergency Medical Technicians (EMTs) and

Paramedics (hereafter the EMTs and Paramedics are referred to collectively as

Plaintiffs).

2. The FLSA collective class is defined as all EMT's and Paramedics

who worked for Defendant City and County of Honolulu, during the period from

December 1, 2009, through the present (the Claims Period), who allege they
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were not paid overtime wages as required by the FLSA.

3. At the status conference on December 8, 2015, the parties agreed upon

and the Court approved a method to advance the case to resolution at trial or

determination by motion, mediation or other settlement. The plan was to prepare

and present 10 representative bell weather cases (the Bell Weathers) for the

Court's consideration, from which damages for the rest of the collective members

could be determined by extrapolation, based on weekly averages for the Bell

Weathers, applied to each non-bell weather plaintiff (the Non-Bell Weathers) for

each week they worked during the Claim Period. The Court approved this process

and the parties then selected the Bell Weathers by agreement.

4. At the status conference held January 21, 2016, the Court ordered

Defendant to provide the time records and payroll record information for the Bell

Weathers to Plaintiffs' counsel.

5. Defendant agreed to produce time sheets from December 1, 2009, to

the present or their electronic equivalent for the Bell Weathers. Similarly,

Defendant agreed to produce payroll records, in the form of the C2HERPS records

from February 26, 2010, to present, or their electronic equivalent. Records

equivalent to the C2HERPS would be produced documenting regular time, shift

premium, FLSA overtime and collective bargaining agreement overtime for

December 1, 2009, through February 26, 2010. The time sheets and payroll records

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are referred to collectively as the Payroll Data. Production of Payroll Data for

the Bell Weathers was completed in April 2017.

6. Pursuant to Fed. R. Civ. P. 53, L.R. 53.3 and Fed. R. Evid. 706, on

August 12, 2016, the parties agreed and the Court appointed David M. Breshears,

CPA/CFF of the forensic accounting firm of Hemming Morse, as Special Master

and Expert (hereafter the Special Master) to evaluate the Payroll Data and

calculate: (1) the regular rate of pay pursuant to 29 U.S.C. 207(e), for each of

the Bell Weathers during the period from February 7, 2010 to October 1, 2016; (2)

the amount of asserted FLSA overtime owed for each week for each of the Bell

Weathers, if any; (3) the amount of asserted FLSA overtime paid for each week

for each of the Bell Weathers, if any; (4) the amount of asserted FLSA overtime

unpaid for each week for each of the Bell Weathers, if any; (5) the amount of

asserted FLSA overtime paid late for each week for each of the Bell Weathers, if

any; and (6) the amount of asserted overtime unpaid for each week for each of the

Bell Weathers, if any (collectively the Unpaid Overtime). See Stipulation to

Appointment of Special Master Pursuant to Fed. R. Civ. P. 53, L.R. 53.3 and Court

Experts Pursuant to Fed. R. Evid. 706 [Filed 8/12/16] Doc. No. 78 (the

Appointment Order).

7. Pursuant to the Appointment Order, the parties are bound by the

Special Master's report and recommendations regarding the Bell Weathers pursuant

to Fed. R. Civ. Pro. 53(a)(1)(A). Id. 8.f.

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8. The Payroll Data were analyzed pursuant to the Appointment Order

and, utilizing the data provided by Defendant:

a. Pursuant to 29 U.S.C. 207(e), the regular rate of pay was

calculated for each of the Bell Weathers during the period from

February 7, 2010 to October 1, 2016;

b. The amount of FLSA overtime owed for each week for each of

the Bell Weathers was calculated;

c. The amount of FLSA overtime paid for each week for each of

the Bell Weathers was calculated;

d. The amount of FLSA overtime unpaid for each week for each

of the Bell Weathers was calculated;

e. The amount of FLSA overtime paid late for each week for each

of the Bell Weathers was calculated; and

f. The amount of overtime unpaid for each week for each of the

Bell Weathers was calculated.

Collectively, these calculations are referred to herein as the Unpaid Overtime.

9. Average Unpaid Overtime for each work week from February 7, 2010

to October 2, 2016, was calculated and applied to each of the weeks worked by

each Bell Weather from December 2009 to February 6, 2010 and from October 2,

2016 to June 1, 2016, as well as to each of the weeks worked from December 2009

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to June 1, 2016 by each Non-Bell Weather plaintiff who has opted into this action

(the Collective Formula). The Unpaid Overtime and Collective Formula

calculations have been provided to the parties for their analysis and discussions,

and to the Court.

10. The Unpaid Overtime and Collective Formula calculations are based

on the production of the records and/or data described herein.

11. Based on Defendant's payment of overtime to the Plaintiffs during the

Claims Period; identified in the Unpaid Overtime and Collective Formula

calculations; reviewed by the parties and the Court in numerous status, discovery

and conferences with the Court; and continuing issues related to timely overtime

payments, and as discussed between the parties and the Special Master, the

following is recommended:

a. The three-year statute of limitations period pursuant to 29

U.S.C. 255(a) will be applied to this case (Haro v. City of

L.A., 745 F.3d 1249, 1259 (9th Cir. 2014); and

b. The good faith exemption for liquidated damages under 29

U.S.C. 216(b) will not be applied to this case.

c. This recommendation that has been agreed upon between the

parties is based solely on and limited to the unique facts of this

case only and is not intended to be binding nor precedential for

any other case and/or claim that may be asserted against the
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City.

12. The parties attorneys reported that:

a. On or before April 10, 2017, Defendant distributed to Plaintiffs

currently employed as EMTs or Paramedics, via e-mail, the opt

in notice and consent to participate form attached hereto as

Exhibits 1 and 2. All Non-Bell Weather employees who did not

receive the initial e-mail distribution were notified and received

the forms not later than April 30, 2017.

b. On or before April 26, 2017, Plaintiffs' attorney distributed to

143 Plaintiffs formerly employed as EMTs or Paramedics, the

opt in notice and consent to participate forms, via United States

postal mail. Plaintiffs' attorney received 35 returned envelopes

identified as undeliverable from this mailing. The envelopes

returned before June 1, 2017, as undeliverable were re-mailed

to more current addresses immediately upon return, except: (a)

in four cases where collective representative Sonya Adams had

more current contact information and was able to contact the

Plaintiffs directly; and, (b) in four cases in which the consent to

participate forms were received before the re-mailing. Twenty-

six notices then were re-mailed. Of the 26 re-mailed notices

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four (4) were returned undeliverable.

c. Of the 436 current and former EMTs and paramedics who

potentially had claims for Unpaid Overtime during the

Collective Period, 318 signed consent to participate forms

which have been received by Plaintiffs attorney.

13. The period for any employee to consent to opt into this action has

closed. The Special Master was notified of the identities of all Plaintiffs

consenting to opt in and has completed the Unpaid Overtime and Collective

Formula calculations for all Plaintiffs.

14. A Third Amended Complaint has been prepared joining all 318

Plaintiffs and has been presented to the Court by stipulation for approval and

subsequent filing. The Third Amended Complaint has been approved for filing

and filed. CM/ECF Doc. No. 105.

15. Plaintiffs and Defendant, by their respective counsel, with the

assistance of the Court and Special Master, have engaged in intensive discussions

regarding this case and the claims and defenses.

16. Based on these discussions, the Special Master herein makes the

following recommendations for the payment of Unpaid Overtime and Collective

Formula calculations:

a. Defendant is recommended to pay a maximum amount of Eight

Hundred Ninety Thousand, Six Hundred Seventy Seven Dollars

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($890,677), exclusive of Plaintiffs' attorneys' fees and costs.

b. Distribution shall be made to individual Plaintiffs according to

the amounts set forth in Exhibit 3 to these Recommendations

and Report, filed under seal (the Payments). The Payments to

each eligible Plaintiff have been calculated based on the

Collective Formula calculations as the basis for reaching a pro

rata amount for each Plaintiff, based on the number of weeks

worked during the Claims Period.

17. Based on the parties discussions and resolution of their disputes

regarding attorneys fees it is recommended, without objection from the parties,

that the following factors should be and have been considered for assessment of

reasonable attorneys fees: (a) the time and labor required to conclude the dispute;

(b) the novelty and difficulty of the questions involved; (c) the skill requisite to

perform the legal service properly; (d) the preclusion of other employment by the

attorneys due to acceptance of a case of this size and duration; (e) the customary

contingent fees charged by attorneys in Hawaii; (f) that the fee here is contingent

and involved significant risk; (g) time limitations imposed by lengthy delays in

discovery which delayed the work of the Special Master; (h) the amount involved

and the results obtained; (i) the undesirability of the case and the lack of local

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attorneys representing plaintiffs in wage-hour cases; (j) the nature and length of the

professional relationship with the clients, nearly thirty-four percent (34%) of whom

no longer are employed by Defendant; (k) awards in similar cases in Hawaii; and

(l) the fact that, after the instant action was filed, Defendant recognized it had not

paid Plaintiffs' overtime correctly and made unannounced payments to Plaintiffs on

September 13, 2013, and February 28, 2014, for both contract and FLSA overtime.

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied sub

nom Perkins v. Screen Extras Guild, Inc., 425 U.S. 951 (1976).

18. Based on the parties discussions and resolution of their

disputes regarding reasonable attorneys fees, it is recommended that attorneys'

fees in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) and

general excise tax on that amount in the amount of Eleven Thousand Seven

Hundred-Eighty Dollars ($11,780.00) should be paid to Plaintiffs attorneys by

Defendant.

19. Based on the parties discussions and resolution of their

disputes regarding litigation costs, it is recommended that Plaintiffs litigation

costs in the amount of Four Thousand Dollars ($4,000.00) should be paid to

Plaintiffs attorneys by Defendant.

20. Based on the parties discussions and inability to resolve their

disputes regarding litigation costs, payment of incentive pay to the collective

class representative, Sonya Adams, if any, it is recommended that the incentive

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pay shall be determined by the Court upon motion to be filed within 14 days of

submission of this Report and Recommendations.

21. Exhibit 3 to these Recommendations, lists each Plaintiff indicating the

gross Payment amount that was determined as set forth above, which shall be

disbursed by Defendant as follows:

a. Defendant will issue an IRS Form W-2 for the calculated

FLSA overtime wages paid to each Plaintiff; and

b. Defendant will issue a Form 1099 for the liquidated damages

paid to each Plaintiff, in the regular course of Defendants

business.

22. All payments and disbursements to be made pursuant to these

Recommendations shall be made not later than August 1, 2017.

23. Pursuant to Fed. R. Civ. P. 53(f)(2), a party may file objections or

statement of no objections this Report and Recommendations. The Special Master

is advised by the parties that no such objections to these Recommendations will be

filed by any party.

24. The Special Master recognizes and notes that Defendant has

taken steps to correct, address, and minimize FLSA miscalculations and/or

inadvertent/human error and/or oversights in its payroll practices and calculations.

While such inadvertent/human error and/or oversights and/or late (or untimely)

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input of time by employees may occur from time to time, the Special Master

recognizes Defendant has made good faith efforts, including the adoption of an

electronic time recording system, to comply with the requirements under the FLSA

as a consequence of this litigation.

25. Upon filing of this Report and Recommendations and Order

and the filing of Exhibit 3 hereto the Special Master shall be discharged.

26. Upon filing of this Report and Recommendations and Order

and the filing under seal of Exhibit 3 hereto and distribution of the Payments ,

attorneys fees and costs, it is recommended that the parties file a Stipulation to

Dismiss All Claims and All Parties With Prejudice in this case.

DATED: Chicago, Illinois, July 10, 2017.

/s/ David M. Breshears

David M. Breshears
SPECIAL MASTER

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ORDER

The Court having been fully advised in the premises and finding good cause

appearing therefor, the foregoing Report and Recommendations are hereby

APPROVED AND SO ORDERED:

UNITED STATES MAGISTRATE JUDGE

Adams, et al. v. City and County of Honolulu, CIVIL NO. 12-00667 BMK;
REPORT AND RECOMMENDATIONS OF SPECIAL MASTER
PURSUANT TO FED. R. CIV. P. 53 AND L.R. 53.3 ; ORDER

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

HAS APPROVED THIS NOTICE

Adams v. City and County of Honolulu, 12-cv-00667 BMK (Dist. Hawaii).

NOTICE OF RIGHT TO OPT-IN TO COLLECTIVE ACTION

UNDER FAIR LABOR STANDARDS ACT

The Honorable Barry M. Kurren, United States Magistrate Judge in the United
States District Court for the District of Hawaii, has reviewed and approved a model to be
used to calculate the amount of unpaid overtime and liquidated damages under the Fair
Labor Standards Act, 29 U.S.C. 29 U.S.C. 201, et seq. (FLSA), in Adams v. City and
County of Honolulu, 12-cv-00667 BMK.

You are receiving this notice because you have been identified as a current or
former employee of the City and County of Honolulu Emergency Services Department,
Emergency Medical Services Division (EMS Employees), during the period from
December 2009 through the present. The EMS Employees who may be eligible to collect
unpaid overtime and liquidated damages, if any, include Emergency Medical Technicians,
Paramedics and Mobile Intensive Care Technicians. Carl M. Varady represents the EMS
Employees and will represent your interests if you choose to opt in to this case.

You Must Take Action To Pursue Your Overtime and Liquidated

Damages Claims. BY NOT LATER THAN JUNE 1, 2017, You
Must Complete the Enclosed Opt-In Form and
Deliver or Mail it to:

Law Office of Carl M. Varady

1003 Bishop St., #1730
Honolulu HI 96813
Tel: (808) 523-8447
e-mail: carl@varadylaw.com
Please be advised of the following:

What is the Status of This Case?

EXHIBIT 1
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This case was filed on December 12, 2012, to obtain payment of unpaid overtime
wages and liquidated damages for EMS Employees. On August 12, 2016, Honorable
Barry M. Kurren, United States Magistrate Judge in the United States District Court for the
District of Hawaii, approved the stipulation between the EMS Employees and the City
and County that appointed David M. Breshears, CPA/CFF, of the forensic accounting firm
of Hemming Morse as a Special Master, in this matter for purposes of calculating unpaid
overtime and liquidated damages, if any, for the 10 sample EMS Employees in this case.

Judge Kurrens order stated that the Special Master was authorized to determine the:
(1) regular rates of pay; (2) unpaid overtime; (3) late paid overtime for each of the 10
sample EMS Employees from December 2009 through the present; and (4) any other data
necessary to make findings and inform the Court of the unpaid and/or late paid overtime
for the 10 sample EMS Employees during that period, and liquidated damages, if any.

The Special Masters calculations have been completed. The Special Master has
calculated the amounts of unpaid and liquidated damages owed to the 10 sample EMS
Employees. The Special Master has calculated the amounts owed to all EMS Employees
based on the average amount owed to the 10 sample EMS employees for each week of
work during the period from December 2009 through the present. That amount was then
applied to the other EMS Employees for each week they worked during the same period.
The Special Master has calculated the overtime and liquidated damages that would be
awarded to you, using this model

You are receiving this Notice to inform you that the Court will consider and rule on
the Special Masters damages calculations and arguments asserted by the City and County
against your claims. This Notice does not mean that damages have been or will be
awarded to you. You will not be able to make a claim in this case unless you submit
the Opt In form BY NOT LATER THAN JUNE 1, 2017. Further legal proceedings,
including a trial, may be necessary to determine what amount of unpaid overtime and
liquidated damages, if any, will be awarded to you or other EMS Employees.

This Notice also is to address questions you may have, including:

How do I join the lawsuit?

To have your claim for unpaid overtime and liquidated damages, if any, presented in
further legal proceedings, You Must Complete the Enclosed Opt-In Form and, BY
NOT LATER THAN JUNE 1, 2017, Deliver or Mail it to:

EXHIBIT 1
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Law Office of Carl M. Varady

1003 Bishop St., #1730
Honolulu HI 96813
Tel: (808) 523-8447

How do I Opt-Out of the lawsuit?

You do not have to do anything to opt out of the lawsuit. Your claims will not be
included if you do not submit the Opt In form. If you do not Opt In, you may:

a) Hire your own attorney and file your own claim;

b) File your claim pro se without an attorney; or
c) Elect not to pursue your damages claims in this case.

Even if you do not opt in, however, you be bound by the rulings of the Court
up to this point.

If You Opt-Out
You Will Not Be Able To Rejoin the Case After You Opt-Out.

If There Is A Settlement Or Judgment In Favor Of The EMS Employees

After You Opt-Out, You Will Not Be Able To Participate In or Receive
Compensation Paid as a Result of The Settlement Or Judgment.

For More Information:

If you have any questions about the lawsuit you may contact:

Law Office of Carl M. Varady

1003 Bishop St., #1730
Honolulu HI 96813
Tel: (808) 523-8447
e-mail: carl@varadylaw.com

THIS NOTICE HAS BEEN APPROVED BY THE COURT

PLEASE DO NOT CONTACT THE COURT

ABOUT THIS NOTICE

EXHIBIT 1
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CONSENT TO JOINT ACTION

(FAIR LABOR STANDARDS ACT, 29 U.S.C. 216(b))
LITIGATION AGAINST THE CITY & COUNTY OF HONOLULU

I, (name)________________________________, of the City & County of Honolulu,

State of Hawaii, hereby consent to become a party to the litigation to be initiated against the City
and County of Honolulu. The litigation will be filed in the United States District Court for the
District of Hawaii, and will allege that the City and County of Honolulu has not complied with
the Fair Labor Standards Act (FLSA) and Hawaii Revised Statutes Chapter 80. The lawsuit
allegeS that the City & County of Honolulu failed to properly compensate its employees for
overtime hours worked and failed to make timely payments to its employees for overtime hours
worked. I am, or was, employed by the City & County of Honolulu Emergency Medical Services
Department during some or all of the period from three years prior to the filing of the lawsuit to
the date of signing of this consent. This action has been brought on my behalf and on the behalf
of similarly situated employees of the City & County of Honolulu pursuant to Section 16(b) of
the Fair Labor Standards Act (29 U.S.C. 216(b)). Unpaid overtime compensation, liquidated
damages, attorneys' fees, costs, and other relief are sought in the action.

Signature:

Print Name:

Date:

EXHIBIT 2