TENENBAUM v. A. IZENBERG, INC. et al

Filing 61

MEMORANDUM OPINION & ORDER directing the Clerk to REOPEN the case by making a new and separate docket entry reading CiVIL CASE REPOPENED; that the parties jointly submitted Settlement Agreement and General Release is hereby approved as to all of t he terms of the agreement; that the parties shall comply with all deadlines in the terms of the Settlement Agreement. This action is DISMISSED WITH PREJUDICE; and the Clerk is directed to CLOSE the file, etc. Signed by Judge Claire C. Cecchi on 8/20/18. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DUSTIN TENENBAUM,

Civil Action No. 14-7594 (CCC-JBC)

Plaintiff,
MEMORANDUM OPINION AND ORDER
V.

A. TZENBERG, INC. and LOUTS
IZENBERG,
Defendants.
CECCHI, District Judge.
This matter comes before the Court upon the application of the parties, Plaintiff Dustin
Tenenbaum (‘Plaintiff’) and Defendants A. Tzenberg, Inc. and Louis frenberg (“Defendants”), to
approve the settlement reached between the parties in June 2018 (the “Settlement”). The Court
decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b). It
appearing that:
1.

Plaintiff is a former employee of Defendant A. Izenberg, Inc. who worked as a real

estate appraiser for Defendant in New Jersey and New York from October 2010 through
September 30, 2014. Defendant Louis Izenberg is the owner and chief officer of Defendant A.
henberg, Inc. and his responsibilities included establishing and controlling employee pay, work
schedules, work assignments, maintaining employee records, and the authority to hire and fire
employees.

2.

Plaintiff filed a Complaint against Defendants on or about December 5, 2014 (ECF

No. 1) and Defendants ified an Answer, Affirmative Defenses, and Counterclaims on or about
January 20, 2015 (ECF No. 6).
3.

After discovery in this action, the parties reached a Settlement agreement during a

settlement conference held before the Court on June 11, 2018, the Settlement was placed on the
record, and the case was administratively terminated for 60 days pending the submission of a final
settlement agreement (ECF No. 58).
4.

The parties also entered into a written Settlement Agreement and General Release

memorializing the Settlement placed on the record on June 11, 2018.
5.

Plaintiff contends that Defendants did not pay him commissions that he earned, in

violation of the Fair Labor Standards Act (“FL$A”), the New Jersey Wage Payment Law, and the
New Jersey Wage and Hour Law.
6.

The Court approved the Settlement because the compromise reached (1) resolves a

bona fide dispute; (2)is fair and reasonable to Plaintiff and Defendants; and (3) will not frustrate
the implementation of the FLSA in the workplace. Further the Court approves the Settlement’s
provision for payment of attorneys’ fees as reasonable. In exchange for a general release from
Plaintiff and in accordance with the payment schedule agreed to by the parties, and as set forth in
the written Settlement Agreement and General Release, Defendants will pay Plaintiff a total of
$80,000 inclusive of attorneys’ fees and costs. Plaintiff will receive a total of $60,000 and
Defendants will pay $20,000 in attorneys’ fees.
7.

First, the compromise reached resolves a bona fide dispute as to Plaintiff’s ability

to recover commissions. Plaintiff alleges that Defendants failed to pay him commissions earned.
In contrast, Defendants deny those allegations and assert counterclaims against Plaintiff for

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violations of the duty of loyalty, misappropriation and a violation under the New Jersey Computer
Related Offenses Act. For these reasons, there is a bona fide dispute between the parties.
8.

Secondly, the Settlement is fair and reasonable to the parties. Under the terms of

the Settlement and as set forth in the written Settlement Agreement and General Release,
Defendants will pay $80,000 to Plaintiff, inclusive of attorneys’ fees. Plaintiff accepted the terms
of the Settlement as a reasonable compromise for Plaintiffs claims and Defendants’
counterclaims. All parties have been represented by counsel in this litigation and negotiations were
at arms-length.
9.

The Court also approved the Settlement’s provision for payment of attorneys’ fees

in the amount of $20,000. “The percentage of recovery method has been accepted as an established
approach to evaluating the award of attorneys’ fees in the Third Circuit.” Brumley v. Camin
Cargo Control, Inc., Nos. 08-1798, 10-2461 and 09-6128, 2012 WL 1019337, at *9 (D.N.J. Mar.
26, 2012). The awards have ranged from 19% to 45% of the settlement fund. See In re Chickie’s
& Pete’s Wage &

Hour

Litig., No. 12-6820, 2014 WL 911718, at *4 (ED. Pa. Mar. 7, 2014); see

also Brumley, 2012 WL 1019337, at *12 (collecting cases where attorneys’ fees around 30% of
settlement funds were found reasonable). The Settlement’s provision for payment of $20,000 in
attorneys’ fees represents 25% of the total settlement amount and thus falls within the range of
reasonable allocations in the context of awards granted in other similar cases. This case was
litigated for more than two years including discovery, motion practice and court appearances.
Further, the Court finds that the award of attorneys’ fees is supported by the lodestar method of
calculation. Plaintiff’s counsel spent 153 hours prosecuting this case and Plaintiff’s counsel’s
hourly rate is $600 for Paul Castronovo (58 hours) and $475 for Kimberly O’Sullivan (95 hours),
amounting to a lodestar of $79,925. This amount exceeds the Settlement’s provision for payment

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of $20,000.00 in attorneys’ fees. Accordingly, the court finds the award of attorneys’ fees is not
excessive and therefore approves the Settlement’s provision for payment of attorneys’ fees.
Accordingly, it is on this

day of

a.)

,

2018

ORDERED that the Clerk shall REOPEN the case by making a new and separate docket

entry reading “CiVIL CASE REPOPENED”; it is further
ORDERED that the parties jointly submitted Settlement Agreement and General Release
is hereby approved as to all of the terms of the agreement; it is further
ORDERED that the Settlement Agreement’s provision for payment of attorneys’ fees is
hereby approved; it is further
ORDERED that the parties shall comply with all deadlines in the terms of the Settlement
Agreement; it is further
ORDERED that this action is DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk of Court shall CLOSE the file.
SO ORDERED.

C
Hon. Claire C. Cecehi, U.$.D.J.

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