Karic et al v. The Major Automotive Companies, Inc. et al

Filing 234

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the reasons set forth above, the report and recommendation, dated 12/22/15, of Magistrate Judge Cheryl L. Pollak, is adopted in its entirety, and pltffs' motion for preliminary judici al approval of the settlement is granted in all respects except as to the notice of claims, which is modified by this Order. Further, this matter is respectfully referred to Magistrate Judge Pollak to conduct the fairness hearing and to make a report and recommendation as to her findings concerning pltffs' motion for final settlement approval. (Ordered by Judge Eric N. Vitaliano on 1/25/2016) c/m (Galeano, Sonia)

FILED

IN CLER~S OFFICE
US DISTRICT COURT E. D N v

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SLOBODAN KARIC, CLARIBEL
GARCIA, STEVEN JONES,
LJUBOMIR ZIV ANOVIC, DANIEL
COLON, WILLIAM CHATMAN, and
GORAN STANIC, on behalf of
themselves and all others similarly
situated,

JAN 2 6,]«k

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BROOKLYN OFFICE

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MEMORANDUM & ORDER
09 Civ. 5708 (ENV) (CLP)

Plaintiffs,
-againstTHE MAJOR AUTOMOTIVE
COMPANIES, INC., MAJOR
UNIVERSE, INC., d/b/a Major World
Ford Lincoln Mercury, MAJOR
CHEVROLET GEO, MAJOR
CHEVROLET, INC., MAJOR
CHYRSLER JEEP DODGE, INC.,
MAJOR MOTORS OF LONG ISLAN
CITY, INC., d/b/a Major Kia, MAJOR
MOTORS OF THE FIVE TOWNS,
INC., MAJOR AUTOMOTIVE
REALTY CORP., HAROLD
BEND ELL, BRUCE BENDELL, and
CHRIS ORSARIS,
Defendants.

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VITALIANO, D.J.
Plaintiffs brought this action alleging that defendants violated the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("NYLL"), N.Y. Lab. Law

§ 650 et seq., by failing to, inter alia, pay plaintiffs and similarly situated sales representatives
the proper minimum wage and premium overtime wages. Plaintiffs now move for (1)
preliminary judicial approval of a proposed settlement concerning the NYLL claims, which are

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the sole remaining claims in this litigation, 1 (2) conditional certification of the settlement class,
(3) appointment of plaintiffs' counsel, Fitapelli & Schaffer, LLP, as class counsel, (4) approval
of the Notice of Proposed Class Action Settlement and Claim Form and Release to be mailed to
class members, and (5) approval of plaintiffs' proposed schedule for providing notice and
seeking final settlement approval. (Pl. Mot., ECF No. 229). Defendants do not oppose the
motion, nor do they oppose conditional certification for purposes of settlement only. (Pl. Mem.
at 8, 19, ECF No. 230). The motion was referred to Magistrate Judge Cheryl L. Pollak, who
issued her Report and Recommendation (the "R&R") on December 22, 2015. (R&R, ECF No.
233).
Analysis
In reviewing a report and recommendation of a magistrate judge, a district court "may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l). Further, a district judge is required to "determine de
novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R.

Civ. P. 72(b)(3); see Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). But,
where no timely objection has been made, the "district court need only satisfy itself that there is
no clear error on the face of the record" to accept a magistrate judge's report and
recommendation, and "may adopt those portions of the [r]eport ... which are not factually

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On March 12, 2014, plaintiffs accepted an offer of judgment, see Fed. R. Civ. P. 68, accounting
for the full amount of damages owed to the named and opt-in plaintiffs on their FLSA claims.
(Notice of Acceptance, ECF No. 211 ). By Memorandum and Order, dated April 16, 2014, the
Court granted plaintiffs' motion for summary judgment as to their remaining NYLL claims.
(Mem. & Order, ECF No. 212). Thereafter, the parties, with the help of a mediator, negotiated a
settlement agreement to resolve the NYLL claims.
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erroneous." Price v. City ofNew York, 797 F.Supp.2d 219, 223 (E.D.N.Y. 2011) (citations and
internal quotation marks omitted).
In this instance, no objections have been filed, and the time to do so has passed. After
careful review of the record, the Court finds the R&R to be correct, well-reasoned, thorough, and
free of any clear error. The Court, therefore, adopts the R&R in its entirety as the opinion of the
Court.
In an abundance of caution, though, the Court will also require the parties to amend the
proposed Claim Form and Release at page 34 ofECF No. 231-1 with respect to the second
paragraph, which begins, "My signature below constitutes a full and complete release and
discharge ... " will instead read, "Effective final judicial approval of the proposed settlement
agreement, my signature below will constitute a full and complete release and discharge .... "
This revision will conform the release to the proposed settlement, which states that should the
parties fail to obtain final judicial approval, "[t]he Litigation will proceed as if no settlement had
been attempted." (Proposed Settlement, ECF No. 231-1 ).
In addition, the anticipated fairness hearing and motion for final settlement approval will
be respectfully referred to Magistrate Judge Pollak for report and recommendation. The parties
are to promptly request a date for the fairness hearing, so that this scheduling information may be
included in§ 14 of the Notice of Proposed Class Action Settlement. (Proposed Settlement at 32,
ECF No. 231-1).
Conclusion
For the reasons set forth above, the report and recommendation, dated December 22,
2015, of Magistrate Judge Cheryl L. Pollak, is adopted in its entirety, and plaintiffs' motion for
preliminary judicial approval of the settlement is granted in all respects except as to the notice of

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claims, which is modified by this Order. Further, this matter is respectfully referred to
Magistrate Judge Pollak to conduct the fairness hearing and to make a report and
recommendation as to her findings concerning plaintiffs' motion for final settlement approval.
So Ordered.
Dated: Brooklyn, New York
January 25, 2016

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