Gay v. Tri-Wire Engineering Solutions, Inc. et al
Filing
84
ORDER granting 64 Motion for Settlement; granting 67 Motion for Attorney Fees; granting 70 Motion for Settlement: For the reasons set forth in the attached Order, the settlement class is certified, the plaintiffs motion for the final approva l of the Settlement and Release Agreement (Settlement Agreement) is granted, the plaintiffs motion for the approval of the FLSA settlement is granted, and plaintiffs counsel is appointed as class counsel. Upon payment to all Class Members under the terms of the Settlement Agreement and this Order, the court will dismiss with prejudice and without costs plaintiff's Complaint and all claims asserted therein. Counsel for the parties shall notify the court by January 7, 2014 that all payments have been made and that this action may be dismissed with prejudice and closed on the docket. Ordered by Judge Kiyo A. Matsumoto on 1/2/2014. (Tsai, Denise)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
LANG GAY, on behalf of himself
And others similarly situated,
MEMORANDUM AND FINAL
APPROVAL ORDER OF
CLASS ACTION
SETTLEMENT
Plaintiff,
- against TRI-WIRE ENGINEERING SOLUTIONS, INC.
And ABC CORPORATIONS #1-10, and
JOHN DOES #1-10,
12-cv-2231 (KAM)(JO)
Defendants.
--------------------------------------X
MATSUMOTO, United States District Judge:
On May 4, 2012, plaintiff Lang Gay (“Gay” or
“plaintiff”) filed the instant class action lawsuit on behalf of
himself and others similarly situated, against Tri-Wire
Engineering Solutions, Inc. (“Tri-Wire” or “defendant”),
alleging violations of the Fair Labor Standards Act and the New
York Labor Law.
On August 7, 2013, the court entered a
Preliminary Approval Order that (i) preliminarily certified a
settlement class; (ii) preliminarily approved the settlement;
(iii) preliminarily appointed plaintiff’s counsel as class
counsel; (iv) directed notice to the settlement class; and (v)
set a fairness hearing, which was held on October 30, 2013, and
established deadlines for objections.
Presently before the
court are plaintiff’s motions for certification of the
settlement class, final approval of the proposed class action
1
settlement agreement, and approval of the FLSA settlement; for
attorney’s fees and costs; and for a class representative award.
For the reasons that follow, the court (i) certifies
the settlement class; (ii) approves the settlement; (iii)
appoints plaintiff’s counsel as class counsel and awards
plaintiff’s counsel attorney’s fees and costs in the amount of
$66,820.00; and (iv) awards $7,500 to plaintiff Gay as class
representative.
BACKGROUND
I.
Complaint
Plaintiff filed the instant class action lawsuit on
behalf of himself and others similarly situated, on May 4, 2012,
alleging violations of the Fair Labor Standards Act (“FLSA”) and
the New York Labor Law (“NYLL”) by Tri-Wire, unknown corporate
defendants (ABC Corporations #1-10), and unknown officers of the
defendants (John Does #1-10). 1
dated 5/3/12 and filed 5/4/12.)
(ECF No. 1, Complaint (“Compl.”)
Specifically, plaintiff
claimed, inter alia, that defendants violated the FLSA and NYLL
by failing to pay overtime wages owed to him and other similarly
situated current and former technicians who installed and
repaired cable and cable-related services since May 3, 2006.
(Compl. ¶¶ 1, 12.)
Plaintiff sought recovery of their unpaid
1
Tri-Wire is the only defendant that has appeared and filed an answer.
(ECF Nos. 8, 9.)
2
overtime wages, liquidated damages, and attorneys’ fees and
costs.
(Id. ¶¶ 69, 75.)
On February 7, 2013, Magistrate Judge Orenstein
granted plaintiff’s request to disseminate a notice to potential
plaintiffs of the pendency of the action and of their
opportunity to opt-in as represented plaintiffs.
Order of Notification dated 2/7/13.)
Nineteen individuals filed
consent to become parties in the class action.
II.
(ECF No. 45,
(See Docket.)
Proposed Settlement
After engaging in discovery, on August 1, 2013, the
parties filed a joint motion for preliminary approval of
settlement, appointment of plaintiff’s counsel as class counsel,
and approval of the proposed notice of settlement of class
action.
(See ECF Nos. 59, 60, 61.)
On August 7, 2013, the
court preliminarily certified the following class for settlement
purposes (the “Settlement Class”):
[A]ll Brooklyn Technicians that were employed by
Defendant TriWire at their Brooklyn location from
June 28, 2008 through and including December 8,
2012, except those technicians that received
payment under the Department of Labor (DOL)
settlement agreement. The DOL settlement covered
off-the-clock claims from September 9, 2008 to
April 29, 2011. Therefore, all Brooklyn
Technicians who deposited or cashed their check
under the DOL settlement, are precluded from
recovering in the instant action for the period
September 9, 2008 through and including April 29,
2011.
3
(ECF No. 62, Preliminary Approval Order dated 8/7/13 ¶ 2; ECF
No. 61, Ex. B, Declaration in Support of Joint Motion for
Preliminary Approval of Settlement by Douglas Lipsky (“Lipsky
Decl.”) dated 8/1/13, Proposed Settlement Agreement at 6.)
The
settlement class excludes any class member who timely opts-out
of the settlement.
(Lipsky Decl., Ex. B, Proposed Settlement
Agreement (“Proposed Settlement Agreement”) at 8.)
The court preliminarily approved the terms of the
settlement agreement, which creates a fund in the amount of
$183,123.60 to settle the case.
(ECF No. 62, Preliminary
Approval Order dated 8/7/13 ¶ 1; Proposed Settlement Agreement
at 9-11.)
The fund covers class members’ awards, plaintiff
Gay’s service award, plaintiff Gay’s individual claim against
Tri-Wire for failure to pay him according to the correct piecerate method, and attorney’s fees and costs for plaintiff’s
counsel.
(Proposed Settlement Agreement at 9-11.)
The
Preliminary Approval Order directed notice (“Notice”) to be
given to Settlement Class members to object to or opt out of the
settlement, and scheduled a fairness hearing pursuant to Federal
Rule of Civil Procedure 23(e)(2).
(Preliminary Approval Order
at 3-4.)
As directed in the Preliminary Approval Order, on
September 6, 2013, the settlement administrator, Simpluris, Inc.
(“Settlement Administrator”), mailed copies of the notice packet
4
(“Notice Packet”), containing the court-approved notice and
claim form, to Settlement Class members whose names and
addresses were provided by defendant’s counsel. 2 (ECF No. 63,
Decl. of Danielle Behring (“Behring Decl.”) dated 10/24/13 at 24.)
No objections to the proposed settlement were filed by the
court’s deadline of October 21, 2013.
(Behring Decl. at 4.)
As
of October 24, 2013, the Settlement Administrator had received
101 valid claim forms.
(Id. at 4.)
No objectors appeared at the October 30, 2013 fairness
hearing.
(Minute Entry dated 10/30/13.)
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 23(e), a
class action cannot be settled without certification of a class
and court approval.
In deciding whether to approve a proposed
class action settlement, the court must first determine whether
the terms of the settlement are fair, reasonable and adequate,
Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982), cert.
denied, 464 U.S. 818 (1983), and that the settlement was not a
“product of collusion,” D’Amato v. Deutsche Bank, 236 F.3d 78,
85 (2d Cir. 2001).
Where, as here, a settlement is negotiated
2
Defendant provided a list of 223 class members to receive notice. One
additional individual was added to the Settlement Class after the individual
contacted the Settlement Administrator to request inclusion. (Behring Decl.
¶ 8.) As of November 15, 2013, seventeen (17) Class Members were considered
undeliverable because the Settlement Administrator was unable to locate their
current addresses. (ECF No. 79, Second Supplemental Declaration of Danielle
Behring dated 11/15/13 (“11/15 Behring Decl.”) ¶ 2.) A full list of the 207
Class Members who are presumed to have received their Notices can be found at
ECF No. 79, Ex. A.
5
prior to class certification, “it is subject to a higher degree
of scrutiny in assessing its fairness.”
D’Amato, 236 F.3d at
85.
I.
Certification of the Settlement Class
Before deciding whether to approve a class action
settlement, the court must first determine that the putative
class is certifiable under Federal Rule of Civil Procedure 23
(“Rule 23”).
See Amchem Products, Inc. v. Windsor, 521 U.S.
591, 619-20 (1997); In re Global Crossing Sec. and ERISA Litig.,
225 F.R.D. 436, 451 (S.D.N.Y. 2004) (“[A] class must meet each
of the four requirements in Rule 23(a) and at least one of the
three requirements in Rule 23(b).”).
When certifying a class
for settlement purposes only, the district court “‘need not
inquire whether the case, if tried, would present intractable
management problems, for the proposal is that there be no
trial.’”
In re Global Crossing, 225 F.R.D. at 451 (citing
Amchem, 521 U.S. at 620).
Furthermore, the court should base
its determination regarding certification “solely on the
allegations set forth in the complaint, which are accepted as
true, and not on an inquiry into the merits of the plaintiff’s
claims.”
Civic Ass’n of Deaf of New York City, Inc. v.
Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996) (internal
citations omitted).
The party seeking to certify a class bears
6
the burden of demonstrating that the requirements of Rule 23 are
satisfied.
Amchem, 521 U.S. at 614.
Under Rule 23(a), there are four prerequisites that
must be satisfied for certification: numerosity, commonality,
typicality, and adequacy of representation. 3
In addition,
because the parties here are seeking class certification
pursuant to Rule 23(b)(3), the court must find “that the
questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.”
Fed. R. Civ. P.
23(b)(3).
A.
Numerosity
The numerosity requirement under Rule 23(a)(1)
requires the class to be “so numerous that joinder of all
members is impracticable.”
Fed. R. Civ. P. 23(a)(1).
Impracticable does not require joinder to be impossible, only
that it will be difficult or inconvenient to join all members of
3
Rule 23(a) provides:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a).
7
the class.
at 632.
Civic Ass’n of Deaf of New York City, 915 F. Supp.
Although courts do not require an exact number of
members to satisfy the numerosity requirement, Robidoux v.
Celani, 987 F.2d 931, 935 (2d Cir. 1993), numerosity has in the
past been presumed when there are as few as 40 purported class
members.
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473,
483 (2d Cir. 1995).
Here, the purported class consists of more
than 200 current and former technicians employed by defendant
Tri-Wire.
(See ECF No. 79, Second Supplemental Decl. of
Danielle Behring dated 11/15/13 (“11/15 Behring Decl.”).)
Accordingly, the numerosity prerequisite is satisfied.
B.
Commonality
Under Rule 23(a)(2), the party seeking class
certification must also show that there are issues of law and
fact that are common to the proposed class.
The commonality
prerequisite assesses whether the named plaintiff’s claim and
the class’s claims are “so interrelated that the interests of
the class members will be fairly and adequately protected in
their absence.”
157 n.13 (1982).
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
“Commonality may be met even though individual
circumstances differ, so long as class members’ ‘injuries derive
from a unitary course of conduct.’”
Ramos v. SimplexGrinnell
LP, 796 F. Supp. 2d 346, 354 (E.D.N.Y. 2011) (quoting Noble v.
93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004)).
8
Courts take a liberal interpretation of the commonality
prerequisite.
Asare v. Change Grp. of N.Y., Inc., 2013 WL
6144764, No. 12 Civ. 3371, at *6 (S.D.N.Y. Nov. 18, 2013)
(citing Frank v. Eastman Kodak Co., 228 F.R.D. 174, 181
(W.D.N.Y. 2005)).
Here, plaintiff argues that there are several common
issues of law and fact between his individual claims and the
class members’ claims, specifically, that Tri-Wire failed to
compensate him and the class members for each hour worked, in
violation of the FLSA and the NYLL.
(ECF No. 73, Mem. in
Support of Mot. for Cert. (“Pl. Mem.”) filed 10/29/13 at 9-10).
Thus, plaintiff alleges that Tri-Wire engaged in activities,
stemming from a uniform corporate policy, that harmed class
members in the same way.
On similar facts, courts have
routinely held that commonality is satisfied.
E.g., Iglesias-
Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 371 (S.D.N.Y.
2007) (finding commonality satisfied where complaint alleged
that defendant failed to pay workers minimum wage and overtime
wages); Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d
611, 615-16 (S.D.N.Y. 2012) (holding class members raised common
issues of whether defendant had a policy of not paying marketing
representatives overtime wages and whether defendant failed to
pay overtime wages); D’Arpa v. Runway Towing Corp., 2013 WL
3010810, No. 12-CV-1120, at *20 (E.D.N.Y. June 18, 2013)
9
(“[C]ourts have consistently held that claims by workers that
their employers have unlawfully denied them overtime wages to
which they were legally entitled meet the commonality
prerequisite for class certification”).
Therefore, the court finds that plaintiff satisfies
the commonality prerequisite.
C.
Typicality
The third prerequisite under Rule 23(a), typicality,
is satisfied “when each class member’s claim arises from the
same course of events, and each class member makes similar legal
arguments to prove the defendant’s liability.”
In re Drexel
Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992).
When the defendant is alleged to have committed the same
unlawful conduct against both the named plaintiff and the
putative class members, the typicality prerequisite is “usually
met irrespective of minor variations in the fact patterns
underlying individual claims.”
Robidoux, 987 F.2d at 936.
Here, the named plaintiff’s overtime claims are
similar to those of the class members and arise from the same
allegedly unlawful policy of defendant Tri-Wire to not pay
overtime wages in contravention of the FLSA and the NYLL.
Accordingly, the court finds that plaintiff satisfies the
typicality prerequisite pursuant to Rule 23(a).
D.
Adequacy of Representation
10
Rule 23(a)(4)’s adequacy prerequisite “serves to
uncover conflicts of interest between named parties and the
class they seek to represent.”
In re Literary Works in Elec.
Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011)
(citing Amchem, 521 U.S. at 625).
To satisfy the adequacy
prerequisite, the named plaintiff must “possess the same
interest[s] and suffer the same injur[ies] as the class
members.”
Id. (internal citation and quotation marks omitted).
The class representative “must have an interest in vigorously
pursuing the claims of the class, and must have no interests
antagonistic to the interests of other class members.”
Denney
v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).
“The
fact that [P]laintiffs’ claims are typical of the class is
strong evidence that their interests are not antagonistic to
those of the class.”
Damassia v. Duane Reade, Inc., 250 F.R.D.
152, 158 (S.D.N.Y. 2008).
The adequacy prerequisite also
requires that the named plaintiff’s counsel is “qualified,
experienced, and generally able to conduct the litigation.”
re Drexel Burnham Lambert Grp., 960 F.2d at 291; Baffa v.
In
Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d
Cir. 2000).
In this case, there is no evidence that named
plaintiff Gay has any interests that are antagonistic to the
interests of the class members.
Gay, like the class members,
11
was a technician for defendant Tri-Wire and seeks to recover
unpaid overtime wages.
In addition, Gay’s counsel, Douglas
Lipsky, Esq., of Bronson Lipsky LLP, is qualified and
experienced to serve as counsel to a certified class.
Specifically, Mr. Lipsky has litigated several complex wage nad
hour cases, and has served as class counsel in numerous NYLL and
FLSA cases.
(See ECF No. 66, Declaration in Support of Motion
for Final Approval by Douglas Lipsky dated 10/25/13 (“Final
Lipsky Decl.”), Ex. A, Bronson Lipsky LLP Firm Description
(“Firm Description”).)
Accordingly, the court finds that the
adequacy prerequisite is satisfied.
E.
Common Questions Predominate
Pursuant to Rule 23(b)(3), the party seeking
certification must also, in addition to meeting the four
prerequisites under Rule 23(a), show that questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to individual litigation.
The first requirement of predominance “tests whether
proposed classes are sufficiently cohesive to warrant
adjudication by representation.”
Amchem, 521 U.S. at 623.
The
requirement “ensures that the class will be certified only when
it would ‘achieve economies of time, effort, and expense, and
promote . . . uniformity of decision as to persons similarly
12
situated, without sacrificing procedural fairness or bringing
about other undesirable results.’”
Cordes & Co. Fin. Services,
Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 104 (2d Cir.
2007) (citing Amchem, 521 U.S. at 615).
Predominance is
satisfied when the party seeking certification can show that
“resolution of some of the legal or factual questions that
qualify each class member’s case as a genuine controversy can be
achieved through generalized proof, and if these particular
issues are more substantial than the issues subject only to
individualized proof.”
Myers v. Hertz Corp., 624 F.3d 537, 547
(2d Cir. 2010) (citing Moore v. PaineWebber, Inc., 306 F.3d
1247, 1252 (2d Cir. 2002)); see also McBean v. City of New York,
228 F.R.D. 487, 502 (S.D.N.Y. 2005) (finding that common
questions predominate where plaintiffs were “unified by a common
legal theory . . . and by common facts”).
Here, common questions of law and fact predominate
over any questions affecting only individual members.
The class
members all allege that they were subject to Tri-Wire’s uniform
policy of refusing to pay them overtime wages.
Their claim can
be established through generalized proof, namely, the existence
of a uniform policy implemented by Tri-Wire.
Accordingly, the
court finds that plaintiff satisfies the predominance
requirement.
13
In addition, Rule 23(b)(3) requires that the class
action be a superior method to individual litigation.
Rule
23(b)(3) sets forth a number of factors that are relevant in
determining whether the superiority requirement is met,
including whether there is any other pending litigation
concerning the same controversy, and whether it is desirable to
concentrate the litigation of claims in a particular forum.
Fed. R. Civ. P. 23(b)(3).
In this case, plaintiff argues that class adjudication
is superior to individual litigation because it will conserve
judicial resources; is more efficient for class members,
especially those who lack the financial resources to bring their
claims individually; and will avoid repetitive proceedings and
inconsistent adjudications, as all of defendant’s allegedly
unlawful conduct occurred within this judicial district.
Mem. at 15.)
(Pl.
It is well-established that these reasons are
sufficient to make a finding of superiority.
See, e.g., D’Arpa,
2013 WL 3010810, at *22 (superiority requirement met where
individual suits would be prohibitively costly relative to the
value of the claims and class action would avoid inconsistent
judgments); Khait v. Whirlpool Corp., No. 06-6381, 2010 WL
2025106, at *3 (E.D.N.Y. Jan. 20, 2010) (finding that class
action would conserve judicial resources and that it is
desirable to concentrate litigation before one forum because
14
some of the allegedly wrongful conduct occurred within the
court’s jurisdiction).
Thus, the court finds that plaintiff has satisfied the
requirements of predominance and superiority pursuant to Rule
23(b)(3).
As discussed above, plaintiff has also satisfied each
prerequisite to class certification under Rule 23(a).
Accordingly, the class of persons who received the parties’
Notice Packet, and who did not opt out of the settlement, is
hereby certified for purposes of settlement.
(See 11/15 Behring
Decl., Ex. A, List of Class Members; ECF No. 77, Declaration of
Danielle Behring dated 11/4/13 (“11/4 Behring Decl.”), Ex. A,
List of Total Undeliverable Members.)
II.
Approval of the Final Settlement
After certification of the class, the court must
assess under Rule 23(3) whether the class action settlement is
procedurally and substantively fair, reasonable, and adequate.
Fed. R. Civ. P. 23(e)(2).
A.
Class Settlement
In assessing whether a class action settlement is
fair, the court examines both the procedural fairness of the
negotiating process leading up to the settlement as well as the
substantive fairness of the settlement terms.
at 85; Khait, 2010 WL 2025106, at *4.
D’Amato, 236 F.3d
Procedural fairness and
substantive fairness are assessed “in light of the ‘strong
15
judicial policy favoring settlements’ of class action suits.”
Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 618
(S.D.N.Y. 2012) (quoting Wal-Mart Stores, Inc. v. Visa U.S.A.
Inc., 396 F.3d 96, 116 (2d Cir. 2005)).
1.
Procedural Fairness
To determine procedural fairness, courts examine the
negotiation process leading up to the settlement “to ensure that
the settlement resulted from arm’s-length negotiations and that
plaintiffs’ counsel have possessed the experience and ability,
and have engaged in the discovery, necessary to effective
representation of the class’s interests.”
D’Amato, 236 F.3d at
85 (internal quotation marks and citation omitted).
Where
parties reach a class settlement through arms-length
negotiations between experienced counsel, it is presumed that
the settlement comports with due process.
Morris, F. Supp. 2d
at 618 (“These arm’s-length negotiations involved counsel wellversed in wage and hour law, raising a presumption that the
settlement achieved meets the requirements of due process.”);
Wal-Mart Stores, 396 F.3d at 116.
Here, plaintiff’s Memorandum in Support of Final
Approval states that the parties engaged in “extensive
discovery” prior to settlement negotiations.
(Pl. Mem. at 3.)
Defendant Tri-Wire produced hundreds of pages of wage and time
records, and both plaintiff Gay and Tri-Wire’s Chief Operating
16
Officer were deposed.
(Id.)
In addition, plaintiff’s counsel
interviewed several opt-in plaintiffs to further investigate the
class members’ claims.
(Id.)
Plaintiff also reports that the
parties participated in numerous rounds of arm’s-length
settlement negotiations, through which the parties came to a
settlement agreement on the monetary amount, computed according
to a formula, that defendant would pay each class member; the
amounts of plaintiff Gay’s service payment and individual claim;
and attorney’s fees and costs.
(Id. at 4.)
Moreover, the class
members were provided notice of the action and settlement, as
set forth in II.B, infra.
Finally, plaintiff’s counsel, as
discussed above, is experienced in wage and hour class action
litigation.
Accordingly, the court finds that the parties have
engaged in arm’s-length negotiations involving experienced and
knowledgeable counsel and the settlement is procedurally fair.
2.
Substantive fairness
To determine substantive fairness, courts look to the
non-exhaustive list of factors set forth in City of Detroit v.
Grinnell Corp., 495 F.2d 448 (2d Cir. 1974):
(1) the complexity, expense, and likely duration
of the litigation; (2) the reaction of the class
to the settlement; (3) the stage of the
proceedings and the amount of discovery
completed; (4) the risks of establishing
liability; (5) the risks of establishing damages;
(6) the risks of maintaining the class action
17
through the trial; (7) the ability of the
defendants to withstand a greater judgment; (8)
the range of reasonableness of the settlement
fund in light of the best possible recovery; (9)
the range of reasonableness of the settlement
fund to a possible recovery in light of all the
attendant risks of litigation.
City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.
1974), abrogated on other grounds by Goldberger v. Integrated
Res., Inc., 209 F.3d 43 (2d Cir. 2000); McReynolds v. RichardsCantave, 588 F.3d 790, 804 (2d Cir. 2009) (citing same factors).
a.
Complexity, Expense, and Likely Duration of
Litigation
“As a general matter, the more complex, expensive, and
time consuming the future litigation, the more beneficial
settlement becomes as a matter of efficiency to the parties and
to the Court.”
McBean, 233 F.R.D. at 385.
Although the factual
and legal issues in this case are not particularly complex, an
inherent complexity nonetheless exists in litigating any class
action lawsuit, and it is reasonable to assume that continuing
this litigation would have required extensive time and expense.
Specifically, the parties would have to engage in additional
discovery to establish liability and damages, motion practice, a
possible trial, and a likely appeal, before a final judgment
could be obtained.
(Pl. Mem. at 18-19.)
“While those processes
would not be terribly complex, they are much more complex than
18
the simple and efficient settlement currently before the Court.”
McBean, 233 F.R.D. at 386.
Absent a settlement, the costs
incurred by continuing the litigation would likely outweigh the
potential recovery to any individual class member.
Thus, “the
settlement provides certain compensation to the class members
now rather than awaiting an eventual resolution that would
result in further expense without any definite benefit.”
Chavarria v. N.Y. Airport Serv., LLC, 875 F. Supp. 2d 164, 173
(E.D.N.Y. 2012).
Accordingly, this factor weighs in favor of
approval of the settlement.
b.
Reaction of the Class
“It is well-settled that the reaction of the class to
the settlement is perhaps the most significant factor to be
weighed in considering its adequacy.”
Chavarria, 875 F. Supp.
2d at 173 (quoting Maley v. Del Global Technologies Corp., 186
F. Supp. 2d 358, 362 (S.D.N.Y. 2002)).
If only a small number
of objections to the class settlement are received, “that fact
can be viewed as indicative of the adequacy of the settlement.”
Wal-Mart Stores, 396 F.3d at 118 (internal quotation marks and
citation omitted).
Here, class action notices were mailed to
more than 200 individuals.
No objections were received, and no
individuals requested exclusion from the class.
Moreover, 101
of the 207 class members who received notice submitted timely
and valid claim forms (Behring Decl. at 4), which is an above19
average participation rate of 48 percent. See Massiah v.
MetroPlus Health Plan, Inc., No. 11-cv-05669, 2012 WL 5874655,
at *4 (E.D.N.Y. Nov. 20, 2012) (collecting authority).
Thus,
the second Grinnell factor weighs in favor of approving the
settlement.
c.
Stage of Proceedings and Amount of Discovery
Completed
The court’s analysis of the extent of discovery
necessary for procedural fairness “is not a matter of attaining
some rigid number of pages or depositions.
Rather, what is
important is whether the parties have ‘a thorough understanding
of their case’ and the extent to which there are remaining
factual ‘unknowns’ prior to trial.”
McBean, 233 F.R.D. at 386
(quoting Wal-Mart Stores, 396 F.3d at 118); In re Warner
Commc’ns Sec. Litig., 618 F. Supp. 735, 745 (S.D.N.Y. 1985)
(finding Grinnell factor satisfied where enough discovery had
taken place so that the parties could “have a clear view of the
strengths and weaknesses of their cases.”).
Sufficient
discovery for purpose of this factor has occurred when counsel
is able to develop “an adequate appreciation of the merits of
the case before negotiating.”
Massiah, 2012 WL 5874655, at *4
(citing In re Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y.
1969)) (internal quotation marks omitted).
20
Here, prior to settlement, plaintiff reports that the
parties engaged in “extensive discovery,” including depositions
of plaintiff Gay and of Tri-Wire’s Chief Financial Officer, the
production of the Class Members’ time and wage records, before
plaintiff’s counsel recommended settlement.
(Pl. Mem. at 20.)
The court is satisfied that the parties were able to develop an
adequate appreciation of the merits of the case, with sufficient
information as to what trial would entail, before entering into
the instant settlement.
See Frank, 228 F.R.D. at 185 (holding
factor satisfied where parties had ascertained identities of
class members, hours for which they performed services for
defendant, and relevant rates of pay for hours worked, such that
“the information exchanged and analyzed [was] been sufficient to
determine the unpaid overtime compensation due to each
plaintiff”).
Accordingly, the third Grinnell factor militates
in favor of approving the settlement.
d.
Risks of Establishing Liability and Proving
Damages
In assessing the settlement, courts should “balance
the benefits afforded to members of the Class and the immediacy
and certainty of a substantial recovery for them against the
continuing risks of litigation.”
Maley, 186 F. Supp. 2d at 364.
“Litigation inherently involves risks.”
Massiah, 2012 WL
5874655, at *4 (quoting In re Painewebber Ltd. P’ships Litig.,
21
171 F.R.D. 104, 126 (S.D.N.Y. 1997)) (internal quotation marks
omitted).
One purpose of settlement is to avoid the uncertainty
of a trial on the merits.
Chavarria, 987 F. Supp. 2d at 174.
Here, a trial on the merits would involve significant risks as
to both liability and damages, because plaintiff would not only
have to prevail over defendant’s various affirmative defenses
and establish liability, but also survive any challenges to
class certification.
Notably, defendant sought to file a motion
for summary judgment prior to reaching a settlement; if
defendant were to prevail on its motion, plaintiff and the class
members would receive nothing.
In addition, if this case
proceeded to trial on the merits it is likely that the judgment
would be appealed, further delaying or eliminating any benefits
of a certain and immediate recovery for class members.
Accordingly, because the proposed settlement eliminates the
inherent risks and uncertainty of litigation, the fourth and
fifth Grinnell factors weigh in favor of approval.
e.
Risks of Maintaining a Class Action Through
Trial
Although plaintiff succeeded on his motion to
conditionally certify the class for purposes of settlement,
defendant could move to oppose class certification and make a
decertification motion if this case were to continue towards a
trial on the merits.
This possible threat towards maintaining
22
the class action weighs in favor of settlement.
See, e.g.,
Massiah, 2012 WL 5874655, at *5 (“A motion to certify and/or
decertify the class would likely require more extensive
discovery and briefing, possibly followed by an appeal, which
would require additional rounds of briefing.
Settlement
eliminates the risk, expense, and delay inherent in this
process.”); In re Warner, 618 F. Supp. at 746 (“The threat of
decertification makes settlement all the more attractive”).
Accordingly, the sixth Grinnell factor weighs in favor of
settlement.
f.
Ability of Defendants to Withstand a Greater
Judgment
According to plaintiff’s memorandum, defendant TriWire is a profitable and competitive player in its industry.
(Pl. Mem. at 22.)
Thus, it is possible that defendant could
withstand a judgment greater than $183,123.60, the settlement
fund reached in the agreement.
Substantive fairness, however,
“does not require that the [defendant] empty its coffers before
this Court will approve a settlement.”
388.
McBean, 233 F.R.D. at
While defendant may have the ability to withstand a
greater judgment, this factor, standing alone, does not render
settlement unfair when the other Grinnell factors weigh in favor
of settlement.
186.
D’Amato, 236 F.3d at 86; Frank, 228 F.R.D. at
Accordingly, although it is unclear whether Tri-Wire can
23
withstand a greater judgment, this factor does not defeat final
approval of the settlement.
g.
Range of Reasonableness of the Settlement
Fund in Light of the Best Possible Recovery
and the Attendant Risks of Litigation
The eighth and ninth Grinnell factors require the
court to determine whether the settlement amount falls within a
“range of reasonableness . . . which recognizes the
uncertainties of law and fact in any particular case and the
concomitant risks and costs necessarily inherent in taking any
litigation to completion.”
Massiah, 2012 WL 5874655, at *5
(quoting Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452,
2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008)) (internal
quotation marks omitted).
When a settlement “assures immediate
payment of substantial amounts to class members, even if it
means sacrificing speculative payment of a hypothetically larger
amount years down the road, settlement is reasonable under this
factor.”
Id. (internal quotation marks and citation omitted).
Here, plaintiff’s counsel calculated the average number of class
members’ uncompensated hours to be 2.95, and defendant has
agreed to pay overtime wages corresponding to 2.95 hours for
each class member.
Although the class members may have been
able to recover greater damages after a trial and appeal, there
are intrinsic and costly risks related to continuing litigation.
24
Accordingly, the court finds that the settlement fund is
reasonable and fair, and that the last two Grinnell factors
weigh in favor of settlement.
Thus, after considering all the relevant factors, the
court finds the parties’ settlement to be procedurally and
substantively fair.
B.
Adequacy of Notice to Class Members
To provide effective notice to a class certified under
Rule 23(b)(3), Rule 23(c)(2)(B) provides that:
[T]he court must direct to class members the best
notice that is practicable under the
circumstances, including individual notice to all
members who can be identified through reasonable
effort. The notice must clearly and concisely
state in plain, easily understood language: (i)
the nature of the action; (ii) the definition of
the class certified; (iii) the class claims,
issues, or defenses; (iv) that a class member may
enter an appearance through an attorney 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 members under Rule
23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B).
In addition, the Class Action
Fairness Act (“CAFA”) requires defendants participating in a
proposed settlement to serve notification of the settlement upon
the appropriate state and federal officials.
1715(b).
25
28 U.S.C. §
Here, the parties have satisfied both forms of notice
required under the Federal Rules of Civil Procedure and CAFA.
In the Preliminary Approval Order, the court determined that the
Notice Packet, consisting of the settlement notice and claim
form, was adequate and directed that it be mailed to all persons
of the class as specified in the Settlement Agreement.
(Preliminary Approval Order at 3; Lipsky Decl. at 7.)
According
to declarations by the Settlement Administrator and plaintiff’s
counsel, notice to class members and the appropriate state and
federal officials was completed according to the Preliminary
Approval Order. (See Final Lipsky Decl. at 5; Behring Decl.)
Thus, the court finds that the notice was adequate.
B.
Approval of FLSA Settlement
The standard for approving a FLSA settlement is lower
than for a Rule 23 settlement because the former does not
implicate the same due process concerns.
Khait, 2010 WL
2025106, at *6; Beckman v. KeyBank, N.A., No. 12 Civ. 7836, 2013
WL 1803736, at *7 (S.D.N.Y. Apr. 29, 2013) (noting that under
the FLSA, unlike Rule 23, a party’s failure to opt in does not
prevent them from bringing own suit at later date).
Courts
approve FLSA settlements when they are reached “as a result of
contested litigation to resolve bona fide disputes” and when the
“proposed settlement reflects a reasonable compromise over
contested issues.”
Khait, 2010 WL 2025106, at *7 (approving
26
FLSA settlement where settlement was result of contested
litigation and arm’s length negotiations).
As discussed above,
the settlement was the result of extensive negotiations that
were conducted at arm’s-length, after a discovery period that
allowed the parties to understand the issues at stake.
Accordingly, the court approves the settlement of the FLSA
claims.
III. Attorneys’ Fees and Costs
Where, as here, attorneys have created a common fund
from which members of a class are compensated, the plaintiff’s
attorneys are entitled to “‘a reasonable fee – set by the court
– to be taken from the fund.’” Chavarria, 875 F. Supp. 2d at 176
(quoting Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47
(2d Cir. 2000)).
It is within the court’s discretion to
determine what constitutes a reasonable fee, id., and in
arriving at a reasonable fee, district courts in this Circuit
have discretion to choose the lodestar method or the percentage
of recovery method.
See McDaniel v. Cnty. of Schenectady, 595
F.3d 411, 417 (2d Cir. 2010) (“Although we have acknowledged
that the trend in this Circuit is toward the percentage method,
it remains the law in this Circuit that courts may award
attorneys’ fees in common fund cases under either the lodestar
method or the percentage of the fund method.”) (internal
quotation marks and citation omitted); Goldberger, 209 F.3d at
27
47-50 (recounting development of both methods and holding that
both methods are acceptable to calculate attorneys’ fees in
common fund cases).
Under the Second Circuit’s modified lodestar method,
the district court, in determining the reasonableness of
attorney’s fees, should bear in mind a number of case-specific
variables to set a reasonable hourly rate, and then multiple the
hourly rate by hours worked, in order to arrive at a
“presumptively reasonable fee.”
Arbor Hill Concerned Citizens
Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 190 (2d
Cir. 2007).
In contrast, under the percentage of recovery
method, the court sets a percentage of the total recovery to
determine the attorney’s fees.
Regardless of the method chosen,
the attorney’s fees awarded must be reasonable and the district
court should be guided by “traditional criteria . . . including:
(1) the time and labor expended by counsel; (2) the magnitude
and complexities of litigation; (3) the risk of litigation . .
.; (4) the quality of representation; (5) the requested fee in
relation to the settlement; and (6) public policy
considerations.”
Goldberger, 209 F.3d at 50 (citing In re Union
Carbide Corp. Consumer Prod. Bus. Sec. Litig., 724 F. Supp. 160,
162 (S.D.N.Y. 1989)).
Regardless of the method of calculation used, district
courts in this Circuit have routinely upheld attorney’s fees
28
awards of 30% to 33-1/3% in class action cases where a counsel’s
fee award was entirely contingent on success, and have
occasionally approved greater attorney’s fees awards.
Khait, 2010 WL 2025106, at *8 (collecting cases).
See
Some district
courts have also applied both methods as a way to cross-check
the reasonableness of the amount.
See, e.g., Maley v. Del
Global Technologies Corp., 186 F. Supp. 2d 358, 371 (S.D.N.Y.
2002) (cross-checking percentage fee against lodestar-multiplier
to find that 33-1/3% attorney’s fee award was fair and
reasonable); Frank, 228 F.R.D. at 189 (using lodestar method to
justify attorney’s fees constituting 40% of overall settlement
fund); Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 5960 (E.D.N.Y. 2010) (using hourly rate to confirm that attorneys’
fees of 1/3 the settlement fund were reasonable); Sewell v.
Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124, at *6
(S.D.N.Y. Apr. 16, 2012) (applying lodestar method to crosscheck the award calculated using the percentage method).
Here, the proposed settlement sets forth a figure of
$66,820.00 for plaintiff’s attorney’s fees and expenses, with
$64,693.23 in fees and $2,126.74 in expenses. (Final Lipsky
Decl., Ex. B, Final Settlement Agreement at 5; ECF No. 67, Mot.
for Att’y Fees and Expenses dated 10/25/13 (“Mot. for Att’y
Fees”).)
The proposed attorney’s fee award constitutes
approximately 35.3% of the total fund of $183,123.60.
29
Notably,
plaintiff’s counsel has been working under a contingency
arrangement and the attorney’s fee award was negotiated
separately from the class members’ payments.
(ECF No. 68, Mem.
in Support of Mot. for Attorney Fees and Expenses dated 10/25/13
(“Mem. for Att’y Fees”) at 1-3.
The proposed fees were calculated using the lodestar
method.
(ECF No. 69, Decl. in Support of Mot. for Attorney Fees
and Expenses dated 10/25/13 (“Decl. for Att’y Fees”) at 2.)
Plaintiff’s counsel spent more than 184.60 hours prosecuting and
settling the case (Decl. for Att’y Fees, Ex. A, Billing
Records), which means that counsel is seeking compensation at
the effective hourly rate of $350.45 per hour.
Fees at 12-13.)
(Decl. for Att’y
Plaintiff’s counsel notes that this rate is
less than his normal hourly rate of $385, and is within the
range of hourly rates charged for attorneys of comparable skill
and experience in this district.
(Id. at 13 (citing Marshall v.
Reisman, No. 11-cv-5764, 2013 WL 1563335, at *2 (E.D.N.Y. Mar.
25, 2013) (noting that partners’ hourly rates in the Eastern
District of New York generally range from $300 to $450)).)
Although plaintiff’s counsel seeks an attorney’s fee
award of 35.3% of the total fund, a slightly higher percentage
than the traditional one-third contingency reward, an
examination of the submitted billing records, a cross-check
under the lodestar method, and the fact that the attorney’s fee
30
award was negotiated separately from the settlement award for
class members, together prompt the court to find that the
requested amount of attorney’s fees is fair and reasonable.
In
addition, the requested amount of reimbursable expenses is fair
and reasonable.
Plaintiff’s counsel spent $2,126.74 in
expenses, mainly in postage, copying, and binding expenses,
which were incidental and necessary to the representation of the
class.
Accordingly, the court grants plaintiff’s motion for
an award of attorney’s fees and expenses of $66,820.00.
IV.
Service Award to Named Plaintiff
Plaintiff has also filed a motion requesting the court
to approve a service award payment of $7,500 to plaintiff Gay to
reward him for his assistance in the litigation and settlement
of the case.
(ECF No. 70, Mot. for Class Representative Service
Award dated 10/25/13; ECF No. 71, Mem. in Support of Mot. for
Class Representative Service Award dated 10/25/13 (“Mem. for
Class Rep. Award”).)
This amounts to approximately 4% of the
total settlement amount of $183,123.60, and would be paid to
plaintiff Gay in addition to his individual award as a class
member ($1,017.13) and the payment of his individual claim
($2,530.71).
It is within the court’s discretion to determine
whether a named plaintiff should receive an additional service
31
or incentive award.
“The guiding standard in determining an
incentive award is broadly stated as being the existence of
special circumstances including the personal risk (if any)
incurred by the plaintiff-applicant in becoming and continuing
as a litigant, the time and effort expended by that plaintiff in
assisting in the prosecution of the litigation or in bringing to
bear added value (e.g., factual expertise), any other burdens
sustained by that plaintiff in lending himself or herself to the
prosecution of the claim, and, of course, the ultimate
recovery.”
Roberts v. Texaco, Inc., 979 F. Supp. 185, 200
(S.D.N.Y. 1997).
Incentive awards are “particularly appropriate
in the employment context” because “the plaintiff is often a
former or current employee of the defendant, and thus, by
lending his name to the litigation, he has, for the benefit of
the class as a whole, undertaken the risk of adverse actions by
the employer or co-workers.”
Frank, 228 F.R.D. at 187.
Courts
have applied more scrutiny to a proposed service award where the
service award would reduce the amount of funds available to the
class as a whole, where the named plaintiff did not demonstrate
any special circumstances, and where the named plaintiff did not
incur any particularly burdensome obligations to merit a service
award.
See Sheppard v. Consol. Edison Co., No. 94-CV-403, 2000
WL 33313540, at *5 (E.D.N.Y. Dec. 21, 2000).
32
Here, plaintiff Gay was a current employee of Tri-Wire
at the time litigation was commenced and is now a former
employee, which militates in favor of a service award.
See
Frank, 228 F.R.D. at 187; Roberts, 979 F. Supp. at 201.
Furthermore, plaintiff’s counsel has stated that plaintiff Gay
provided detailed factual information regarding his job duties,
the hours he worked, and his wages; participated in the
discovery process, including preparing and reviewing discovery
responses, attending a deposition of Tri-Wire’s designee, and
being deposed; was involved in settlement negotiations and the
approval of terms of settlement; and answered questions from the
other plaintiffs.
(Mem. for Class Rep. Award at 3-4, 8.)
Under similar facts, district courts in this circuit have
approved service awards.
See, e.g., Chavarria, 875 F. Supp. 2d
at 164 (plaintiff was instrumental in fact-finding process,
located and contacted class members, and attended meetings);
Toure v. Amerigroup Corp., No. 10-cv-5391, 2012 WL 3240461, at
*6 (E.D.N.Y. Aug. 6, 2012) (class representative produced
documents, responded to interrogatories, and prepared for
depositions); Sewell, 2012 WL 1320124, at *14-15 (plaintiffs
produced documents, provided factual information, assisted in
preparing for mediation, and reviewed terms of settlement).
Further, plaintiff Gay’s requested service award of
$7,500 constitutes 4% of the total settlement. As both a raw
33
number and as a percentage of the total settlement, this service
award is consistent with service awards that have been approved
in this circuit.
See, e.g., Reyes v. Altamarea Grp., LLC, No.
10-CV-6451, 2011 WL 4599822, at *9 (S.D.N.Y. Aug. 16, 2011)
(approving service awards to four class representatives, where
each individual service award of $15,000 represented 5% of the
total settlement);
Chavarria, 875 F. Supp. 2d at 177 (finding
reasonable a service award of $5000, which represented 3.7% of
the total recovery).
In addition, no one has filed any
objections to the service award or the amount requested.
Accordingly, plaintiff Gay’s motion for approval of
the class representative service award of $7,500 is granted.
V.
Appointment of Class Counsel
In appointing adequate class counsel, a court “must
consider: (i) the work counsel has done in identifying or
investigating potential claims in the action; (ii) counsel’s
experience in handling class actions, other complex litigation,
and claims of the type asserted in the action; (iii) counsel’s
knowledge of the applicable law; and (iv) the resources that
counsel will commit to representing the class.”
Fed. R. Civ. P.
23(g)(1)-(2).
Here, Mr. Douglas Lipsky, Esq., and Bronson Lipsky LLP
have represented plaintiff since the commencement of the action.
They have thoroughly investigated the potential claims in the
34
action by engaging in formal discovery and interviewing
plaintiff and more than ten class members who opted in to class
representation.
(Final Lipsky Decl. at 1-2.)
In addition, Mr.
Lipsky and his firm have extensive experience litigating complex
wage and hour cases and class actions and have demonstrated
knowledge of the applicable state and federal labor laws at
issue.
(See Firm Description at 1-2.)
Accordingly, plaintiff’s counsel, Douglas B. Lipsky,
Esq., of Bronson Lipsky LLP, is appointed class counsel.
CONCLUSION
For the reasons set forth above, the settlement class
is certified, the plaintiffs’ motion for the final approval of
the Settlement and Release Agreement (“Settlement Agreement”) 4 is
granted, the plaintiffs’ motion for the approval of the FLSA
settlement is granted, and plaintiffs’ counsel is appointed as
class counsel.
Therefore, it is HEREBY ORDERED THAT:
4
A copy of the Settlement Agreement is found at ECF No. 66, Final
Lipsky Decl., Ex. B, Settlement Agreement.
35
1.
This court has jurisdiction over the subject
matter of this litigation, and over all parties to this
litigation, including all the Class Members.
2.
For purposes of this Order and Final Judgment,
the court adopts and incorporates the definitions set forth in
the Settlement Agreement, including, but not limited to, the
following definitions:
Settlement Class Member: Means all Brooklyn
Technicians that were employed by defendant Tri-Wire at
their Brooklyn location from June 28, 2008 through and
including December 8, 2012, except those technicians that
received payment under the Department of Labor (DOL)
settlement agreement.
The DOL settlement covered off-the-
clock claims from September 9, 2008 to April 29, 2011.
Therefore, all Brooklyn Technicians who deposited or cashed
their check under the DOL settlement are precluded from
recovering in the instant action for the period September
9, 2008 through and including April 29, 2011.
Class Member: Means a person who falls within the
definition of Settlement Class and who does not validly opt
out of the Class pursuant to the procedure set forth in the
court’s Preliminary Order.
Released Persons: Defendant Tri-Wire and its
present or former officers, directors, employees, trustees,
36
principals, attorneys, agents, representatives,
shareholders, members, partners, and insurers.
3.
The Fed. R. Civ. P. 23(c)(2)(B) Notice of Class
Action Settlement was directed and mailed to each individual
satisfying the “Settlement Class Member” definition.
individuals are listed in Exhibit A to ECF No. 80.
These
Notice could
not, however, be successfully mailed to those individuals listed
in Exhibit A of ECF No. 77.
(11/4 Behring Decl., Ex. A, List of
Undeliverable Members.)
4.
This court finds that the settlement set forth in
the Settlement Agreement is fair, reasonable, adequate and in
the best interests of the class in accordance with Rule 23(e) of
the Federal Rules of Civil Procedure and 29 U.S.C. § 216, and
accordingly, the court approves the Settlement and directs
implementation of all its terms and provisions, including the
payment from the Settlement Fund of the service payment of
$7,500.00 to named plaintiff Lang Gay, the payment of attorney’s
fees and expenses to plaintiff’s counsel in the total amount of
$66,820.00, and payment of plaintiff Gay’s individual claim in
the amount of $2,530.71.
4.
Upon payment to all Class Members under the terms
of the Settlement Agreement and this Order, the court dismisses
with prejudice and without costs plaintiff’s Complaint and all
claims asserted therein.
Counsel for the parties shall notify
37
the court by January 17, 2014 that all payments have been made
and that this action may be dismissed with prejudice and closed
on the docket.
5.
No Class Members exercised their right to opt-out
of the Settlement Class.
Plaintiff Gay and all other Class
Members listed in Danielle Behring’s November 4, 2013
declaration (ECF No. 77) and all other Class Members who have
not properly and timely exercised their opt-out rights in this
lawsuit, or have exercised their opt-in rights as appropriate,
are hereby conclusively deemed to have released or discharged
the Released Parties from, and are permanently enjoined and
barred from asserting, either directly or indirectly, against
the Released Persons, any and all Claims.
All such matters are
hereby finally concluded, terminated and extinguished.
6.
The notice given to Class Members fully and
accurately informed the Class Members of the proposed
settlement, was the best notice practicable under the
circumstances, and constituted valid, due and sufficient notice
to all Class Members, complying fully with Federal Rule of Civil
Procedure 23, the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq., the United States Constitution, and any other applicable
laws, as appropriate.
38
7.
Without affecting the finality of this judgment
in any way, this court hereby retains jurisdiction over
consummation and performance of the Settlement Agreement.
8.
The above-captioned action is hereby dismissed in
its entirety, with prejudice to Plaintiff and Class Members, and
with no further award of attorney’s fees or costs or expenses by
the court, except as awarded herein.
So Ordered.
Dated:
January 2, 2014
Brooklyn, New York
_______/s/_______________
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
39
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