Chavarria v. New York Airport Service, LLC et al
Filing
67
ORDER granting 62 Motion to Certify Class. Ordered by Magistrate Judge Marilyn D. Go on 7/20/2011. (Proujansky, Josh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LAZARO CHAVARRIA,
Plaintiffs,
PRELIMINARY APPROVAL
ORDER
- against 10-CV-1930 (MDG)
NEW YORK AIRPORT SERVICE, LLC, et
al.,
Defendants.
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GO, United States Magistrate Judge:
The above-entitled matter came before the Court on
Plaintiffs' Motion to Provisionally Certify a Class Action,
Appoint Plaintiffs' Counsel as Class Counsel, Preliminarily
Approve the Proposed Class Action Settlement, Approve the
Proposed Notice of Settlement and Direct the Distribution of Same
(ct. doc. 62).
After consideration of the submissions and prior
proceedings herein, this Court makes the following rulings based
on the findings and conclusions of law set forth below.
I.
Conditional Certification of the Proposed Rule 23 Settlement
Class
1.
The Court conditionally certifies the following class
under Fed. R. Civ. P. 23(e), for settlement purposes ("Settlement
Class"):
All current and former Ticket Agents working at
LaGuardia and/or John F. Kennedy Airports in New York
while employed by Defendants New York Airport Service,
LLC, Zev Marmurstein, Jacob Marmurstein, Contract
Transportation, Inc. and Janet West at any time from
April 29, 2004 through the date of judgment (the
"Class" or "Class Members").
2.
Plaintiffs meet all of the requirements for class
certification under Fed. R. Civ. P. 23(a) and (b)(3).
3.
Plaintiffs satisfy Fed. R. Civ. P. 23(a)(1) because
there are more than 200 Class Members and therefore joinder is
impracticable.
See Consol. Rail. Corp. v. Town of Hyde Park, 47
F.3d 473, 483 (2d Cir. 1995).
4.
Plaintiffs satisfy Fed. R. Civ. P. 23(a)(2), the
commonality requirement, because Plaintiffs and the Class Members
share common issues of fact and law, including whether Defendant
failed to pay Plaintiffs and the Class Members for all of the
overtime they worked.
5.
Plaintiffs satisfy Fed. R. Civ. P. 23(a)(3), because
plaintiffs' claims arise from the same factual and legal
circumstances that form the bases of the class members' claims.
See Prasker v. Asis Five Eight LLC, 2010 WL 476009, at *2
(S.D.N.Y. Jan. 6, 2010).
6.
Plaintiffs satisfy Fed. R. Civ. P. 23(a)(4) because
plaintiffs' interests are not antagonistic or at odds with class
members.
See Diaz v. Eastern Locating Servs., Inc., 2010 WL
2945556, at *2 (S.D.N.Y. July 22, 2010); Prasker, 2010 WL 476009,
at *2.
7.
Plaintiffs also satisfy Rule 23(b)(3).
Common factual
allegations that Defendant failed to pay Class Members for all
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overtime they worked and a common legal theory predominate over
any factual or legal variations among class members.
See Diaz,
2010 WL 2945556, at *2; Prakser, 2010 WL 476009, at *2.
Class adjudication of this case is superior to individual
adjudication because it will conserve judicial resources and is
more efficient for class members, particularly those who lack the
resources to bring their claims individually.
See Diaz, 2010 WL
2945556, at *2.
II.
Preliminary Approval of Settlement
1.
Based upon the Court's review of the Plaintiffs' Motion
for Preliminary Approval, the Declaration of William Cafaro
("Cafaro"), and all other papers submitted in connection with
Plaintiffs' Motion for Preliminary Approval, the Court grants
preliminary approval of the settlement memorialized in the
Settlement Agreement and Release, attached to the Notice of
Motion as ct. doc. 62-1.
2.
The Court concludes that the Settlement proposed is
within the range of possible, reasonable settlements, such that
notice to the Class is appropriate.
See In re Traffic Exec.
Ass'n, 627 F.2d 631, 634 (2d Cir. 1980).
3.
The Court finds from personal observations at settlement
conferences with the parties that the Settlement Agreement was
reached after extensive, arm's length negotiations by counsel
experienced in wage and hour actions and other complex litigation
and is not the product of collusive efforts.
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III.
Appointment of Plaintiffs' Counsel as Class Counsel
1.
The Court appoints The Law Offices of William Cafaro as
Class Counsel because they meet the requirements of Federal Rule
of Civil Procedure 23(g).
See Damassia v. Duane Reade, Inc., 250
F.R.D. 152, 165 (S.D.N.Y. 2008).
2.
William Cafaro spent significant time and did
substantial work identifying, investigating, and settling
Plaintiffs' and the Class Members' claims.
3.
Mr. Cafaro has substantial experience litigating wage
and hour claims and complex litigation.
4.
The work that Mr. Cafaro has performed both in
litigating and settling this case demonstrates his commitment to
the Class and to representing the Class' interests.
IV.
Class Notice
1.
The Court approves the Proposed Notice of A Settlement
of Litigation which is attached to the Notice of Motion as ct.
doc. 62-2 and directs its distribution to the Class subject to
adding a clause in the notice and claim form advising the class
members to notify class counsel of any changes to their address
or telephone number.
2.
Pursuant to Rule 23(c)(2)(B), a notice must provide:
the best notice practicable under the circumstances, including
individual notice to all members who can be identified through
reasonable effort.
The notice must concisely and clearly state
in plain, easily understood language: (i) the nature of the
action; (ii) the definition of the class certified; (iii) the
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class claims, issues, or defenses; (iv) that a class member may
enter an appearance through counsel if the member so desires; (v)
that the court will exclude from the class any member who
requests exclusion; (vi) the time and manner for requesting
exclusion; and (vii) the binding effect of a class judgment on
class members under Rule 23(c)(3).
3.
The Notice satisfies each of these requirements and
adequately puts class members on notice of the proposed
settlement.
See In re Michael Milken & Assocs. Sec. Litig., 150
F.R.D. 57, 60 (S.D.N.Y. 1993).
The Notice of Settlement
describes the terms of the settlement, informs the Class about
the allocation of attorneys' fees, and provides specific
information regarding the date, time, and place of the final
approval hearing.
V.
Class Action Settlement Procedure
1.
The Court hereby sets the following settlement
procedure:
a.
Defendants must provide the Claims Administrator, in
electronic form, with the names, social security numbers, last
known addresses and dates of employment of all Class Members
within 10 days of this Order;
b.
Class Counsel shall mail the Settlement Notice to Class
Members by August 15, 2011;
c.
Class Members will have until October 20, 2011 to opt
out of the class or object to the settlement;
d.
Plaintiffs will file a motion for final approval of the
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settlement and any application by Class Counsel for attorneys'
fees or reimbursement of expenses by September 16, 2011.
Such
submissions shall include a discussion of the Grinnell factors,
including the substantive fairness of the settlement and adequacy
of counsel to represent the plaintiff class.
See City of Detriot
v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974).
e.
Plaintiffs' counsel must supplement the Motion for
Approval by October 31, 2011 by, inter alia, filing a list of the
names and addresses of the Class Members who have opted out of
the Class by October 31, 2011;
f.
The Court will hold a fairness hearing on November 9,
2011 at 10:00 a.m. at the United States District Court for the
Eastern District of New York, 225 Cadman Plaza East, Brooklyn,
NY, Courtroom 11C.
Dated:
Brooklyn, New York
July 20, 2011
/s/
MARILYN DOLAN GO
UNITED STATES MAGISTRATE JUDGE
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