Carson v. Team Brown Consulting, Inc.
CORRECTED ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court has reviewed the record and Chief Magistrate Judge Mann's Report and Recommendation 13 de novo and hereby adopt the Report and Recommendation with respect to the parties' requ est for clarification. See attached Order for details. The request for an extension of time to file the settlement agreement and stipulation of dismissal 10 and Plaintiff's motion to expedite 17 are each denied as moot. On or before Octobe r 6, 2017, the parties are directed to file papers sufficient to allow a Cheeks review of their proposed settlement agreement or an executed Section 636 consent form, after which Magistrate Judge Mann will schedule a telephonic Cheeks hearing. Ordered by Judge LaShann DeArcy Hall on 9/30/2017. (Zdanys, Joanna)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
16-cv-4206 (LDH) (RLM)
-againstTEAM BROWN CONSULTING, INC.,
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Sharieff Carson brings this action against Defendant Team Brown Consulting,
Inc., alleging, on behalf of himself and others similarly situated, violations of the Fair Labor
Standards Act (“FLSA”) and New York Labor Law.
On October 13, 2016, Defendant filed a notice of settlement. (See Notice of Settlement,
ECF No. 8.) On October 21, 2016, the Court directed the parties to file papers sufficient to allow
a review pursuant to Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), or an
executed Section 636 form consenting to magistrate judge jurisdiction, after which the magistrate
judge would schedule a “Cheeks hearing.” (See Oct. 21, 2016 Electronic Order.) On November
3, 2016, Defendant filed a motion for an extension of time for the parties to file their settlement
agreement and stipulation of dismissal. (See Def.’s Mot. for Extension, ECF No. 10.) Therein,
Defendant informed the Court that “[t]he terms of the settlement [would] be directly impacted
regarding whether Cheeks approval is necessary” and inquired as to whether Cheeks approval
would be required if the complaint were dismissed or withdrawn without prejudice. (See id.) In
response to Defendant’s motion, on November 4, 2016, Chief Magistrate Judge Mann held a
telephonic conference. (See Nov. 4, 2016 Min. Entry, ECF No. 11; Tr. Nov. 4, 2016
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Proceedings (“Tr.”) 2:2-17, ECF No. 15.) Following the conference, Plaintiff’s counsel wrote to
the Court also requesting an extension of time to file the parties’ settlement agreement and
stipulation of dismissal and seeking clarification as to whether Cheeks approval would be
required if the action were discontinued without prejudice. (See Pl.’s Letter Response to Order
and Request for Extension, ECF No. 12.)
At the request of this Court, on November 23, 2016, Magistrate Judge Mann issued a
report and recommendation, wherein she recommended that a Cheeks hearing be required and
that the parties’ request for additional time to submit Cheeks materials be granted. (See R. & R.,
ECF No. 13.) Two days later, Plaintiff’s counsel filed a notice of voluntary dismissal without
prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure (“FRCP”).
(See Pl.’s Notice of Voluntary Dismissal, ECF No. 14.) Plaintiff’s counsel filed a timely
objection to the report and recommendation on December 12, 2016. (See Pl.’s Obj., ECF No.
16.) Defendant filed no objection. When a timely objection has been made to any portion of a
report and recommendation on a dispositive matter, the District Court reviews the report and
recommendation de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Upon review, the
Court hereby adopts the report and recommendation with respect to the parties’ request for
clarification as to whether Cheeks review is required.
In Cheeks, the Second Circuit held that, absent judicial approval, litigants may not settle
FLSA claims through a private stipulated dismissal with prejudice pursuant to Rule
41(a)(1)(A)(ii). See 796 F.3d at 200 (affirming judgment of district court and remanding for
judicial review of settlement agreement). Cheeks expressly left open, however, whether judicial
approval is required for FLSA settlements effected by stipulation without prejudice pursuant to
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Rule 41(a)(1)(A). See id. at 201 n.2. 1 Plaintiff’s counsel correctly notes that courts in this
district have approved dismissals without prejudice in FLSA cases absent Cheeks review. (See
Pl.’s Obj. 11 (collecting cases)). Likewise, other courts in this district have conducted Cheeks
reviews of such dismissals without objection from the parties. The propriety of mandating
judicial review is far from settled and will ultimately be resolved by the Second Circuit. Until
such time, the district court must be guided, first and foremost, by the policy considerations
underlying Cheeks. In view of those policy considerations, this Court concludes that judicial
review and approval should be required in this case.
“[T]he Supreme Court and [the Second Circuit] have long recognized . . . [that] the
FLSA’s underlying purpose [is] ‘to extend the frontiers of social progress by insuring to all our
able-bodied working men and women a fair day’s pay for a fair day’s work.’” Cheeks, 796 F.3d
at 206 (quoting A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945)). To that end, the
Supreme Court has “consistently . . . interpreted the [FLSA] liberally and afforded its protections
exceptionally broad coverage.” Id. (quoting Chao v. Gotham Registry, Inc., 514 F.3d 280, 285
(2d Cir. 2008)). Against that backdrop, the Cheeks court crafted a holding that was explicitly
driven by the “unique policy considerations underlying the FLSA.” Id. Of particular concern to
the court was the “potential for abuse” in FLSA settlements, as exemplified by, inter alia,
“overbroad release[s] that would waive practically any possible claim against the defendants”
and outsized attorneys’ fees provisions, some setting fees for plaintiffs’ attorneys at “between 40
and 43.6 percent of the total settlement payment without adequate documentation to support such
a fee award.” See id. (internal quotation marks omitted) (citing Lopez v. Nights of Cabiria, LLC,
96 F. Supp. 3d 170, 173, 177, 181 (S.D.N.Y. 2015)).
The Cheeks court also did not address FLSA settlements like the one in this case, which are effected by notice of
dismissal pursuant to Rule 41(a)(1)(A)(i).
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The parties in this case have largely disclosed the terms of the proposed settlement at
issue. (See Tr. 8:6-17, 9:2-10:11.) As an exception, the parties “declined to fully illuminate” the
terms regarding the potential release and Plaintiff’s counsel’s fee award. 2 (R. & R. 8; see Tr.
3:6-4:20, 8:18-22, 12:19-25.) The parties have telegraphed, however, that at least one of the
principal concerns raised by the Cheeks court is present in this case: an overbroad release
provision. At the conference before Magistrate Judge Mann, the parties indicated that in
exchange for voluntary dismissal of the case without prejudice, Plaintiff may release generally
all possible claims against Defendants. (See R. & R. 8; Tr. 3:6-4:20, 5:18-23.) Tellingly,
Plaintiff’s counsel indicated that, were the release provision subject to judicial scrutiny, the
parties would likely narrow its terms. (See Tr. 5:18-23.) To put it differently, absent judicial
scrutiny, an overboard release potentially of the sort decried by the court in Cheeks would remain
in this settlement agreement. The Court cannot abide by such an outcome.
Plaintiff’s counsel maintains that the Court need not be concerned with this potentiality
because the release could later be deemed unenforceable as a matter of law. (See Pl.’s Obj. 910.) The Court does not derive comfort from that possibility. In pressing his point, Plaintiff’s
counsel contends that the court in Cheeks held that “a settlement agreement and release not
approved by the court is not enforceable under the FLSA.” (Id.) The court in Cheeks arrived at
no such holding. Instead, the Cheeks court looked for guidance to early Supreme Court
decisions and other circuit decisions that arose in the context of whether a private FLSA
Plaintiff’s counsel maintains that the parties’ seeming reticence to fully disclose the terms of the settlement
agreement stemmed only from the posture of the settlement discussions and a lack of notice regarding the November
4, 2016 conference, as opposed to a reluctance to put the terms of the settlement in full view of the Court. (See Pl.’s
Obj. 12.) Even assuming this to be the case, as discussed below, the parties concede that the settlement would
include an overly broad release provision—or, at least, a release provision so broad that it would be narrowed if put
before the Court for review. (See Tr. 5:18-24.)
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settlement is enforceable. See 796 F.3d at 202-04. 3 The Cheeks court then made clear that,
while useful, those cases did not speak directly to the issue before the court, namely, “whether
the parties can enter into a private stipulated dismissal of FLSA claims with prejudice, without
the involvement of the district court or [U.S. Department of Labor (“DOL”)], that may later be
enforceable.” Id. at 204. Even if the Cheeks decision could be read as urged by Plaintiff’s
counsel, the Cheeks court was not dissuaded from finding—as the Court does here—that judicial
review of the settlement was nonetheless warranted.
In any event, as Magistrate Judge Mann ably noted, the realities of FLSA litigation must
be taken into account when assessing whether judicial scrutiny is advised in the settlement of any
FLSA matter, particularly where a potentially overbroad release is implicated. The typical FLSA
plaintiff may be unaware of his ability to challenge the enforceability of a release. (See R. & R.
9.) And, even if he did, the Court questions whether he would be able to secure representation to
take on a suit that “from the outset poses an additional obstacle to recovery in the form of an
ambiguously enforceable settlement agreement.” (Id.) Moreover, even assuming a plaintiff
could overcome the release provision, he might be precluded from prosecuting an action, in any
event, as the statute of limitations may have run since the commencement of the initial action.
This outcome is not remote given the fairly short two-year statute of limitations that governs
Notably, the decisions discussed in Cheeks arrived at varied holdings on this issue. In Brooklyn Savings Bank v.
O’Neil, 324 U.S. 697 (1945), the Supreme Court held that in the absence of a genuine dispute as to liability,
employees could not waive their rights to recover liquidated damages in a private FLSA settlement. See 324 U.S. at
704. One year later, in D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946), the Court barred enforcement of private
settlements of bona fide disputes where the dispute centered on whether or not the employer is covered by the
FLSA. See 328 U.S. at 114. As the Cheeks court observed, these early cases “leave open the question of whether
employees can enforce private settlements of FLSA claims where there is a bona fide dispute as to liability, i.e., the
number of hours worked or the amount of compensation due.” 796 F.3d at 203. Later, the Eleventh Circuit, in
Lynn’s Food Stores, Inc. v. United States Dep’t of Labor, 679 F.2d 1350 (11th Cir. 1982), decided that employees
could do so, but only if the U.S. Department of Labor (“DOL”) or a district court determines that the proposed
settlement is “is a fair and reasonable resolution of a bona fide dispute over FLSA provisions.” 679 F.2d at 1355.
The Fifth Circuit, however, in Martin v. Spring Break ‘83 Prods., L.L.C., 688 F.3d 247 (5th Cir. 2012), concluded
that a private settlement agreement containing a release of FLSA claims waived employees’ claims even without
district court approval or DOL supervision. See 688 F.3d at 253-57.
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most FLSA claims. 4 See 29 U.S.C. § 255(a); Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339,
356 (E.D.N.Y. 2015).
This Court is not the first to recognize the potential preclusive effect of a dismissal
without prejudice when coupled with the statute of limitations. Courts have cast dismissals
without prejudice as de facto dismissals with prejudice in at least two other contexts: Rule 4(m)
dismissals for failure to execute service in a timely manner and dismissals for failure to exhaust
administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”). In the Rule
4(m) context, the court in Phillip v. City of N.Y., No. 09-CV-442, 2012 WL 1598082 (E.D.N.Y.
May 7, 2012), observed that although a dismissal under Rule 4(m) is by definition without
prejudice to refiling, the plaintiff would not have been able to revive his claim because the
statute of limitations had expired. See 2012 WL 1598082, at *3. The court cautioned, “Where
dismissal without prejudice would constitute a de facto dismissal with prejudice, the court must
carefully consider the impact such an action will have on the parties.” Id. (citing Harper v. City
of New York, No. 09-CV-5571, 2010 WL 4788016, at *9 (E.D.N.Y. Nov. 17, 2010)); see also
AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 109-10
(S.D.N.Y. 2000) (observing that where the statute of limitations has run, Rule 4(m)
“dismissal . . . would extinguish potentially meritorious claims without there being an
opportunity to have them adjudicated on the merits”). Similarly, in the context of a dismissal in
a PLRA matter, the court in McCoy v. Goord, 255 F. Supp. 2d 233 (S.D.N.Y. 2003), observed
that, although failure to exhaust administrative remedies typically precludes only the current suit,
“a dismissal without prejudice is tantamount to a dismissal with prejudice if the statute of
limitations has expired, or is likely to expire before re-filing.” 255 F. Supp. 2d at 252. Given
For causes of action “arising out of a willful violation,” the FLSA provides for a longer, three-year statute of
limitations period. See 29 U.S.C. § 255(a).
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that “the FLSA is a uniquely protective statute,” Cheeks, 796 F.3d at 207, due consideration to
the interplay between dismissals without prejudice and the FLSA’s statute of limitations is all the
more appropriate here.
Next, although the attorney’s fee provision in this case is not as obviously troubling,
judicial scrutiny of that provision, too, would further the remedial objectives of Cheeks.
Plaintiff’s counsel has informed the Court that he will collect a not insignificant attorney’s fee
award: one-third of the proposed settlement sum. (See Tr. 8:6-22, 12:19-25.) Though this fee
arrangement is not uncommon, were the arrangement subject to scrutiny, the Court might
consider that no substantive litigation took place in this case beyond the filing of a fifteen-page
complaint and settlement negotiations that occurred at an unknown frequency, but for no more
than two months, before the notice of settlement was filed. (See R. & R. 9.) Although the court
in Cheeks highlighted its concern with fee awards specifically in the range of 40% to 43.6%, it
did not find that fees below 40% could not implicate its policy concerns. See 796 F.3d at 206.
Certainly, one could imagine a scenario in which a one-third fee award might be found to be
abusive—where counsel did little more than, say, file a rudimentary complaint and manage
service of process. Conversely, a one-third fee award (or higher) might be justified where the
case involved a certain degree of legal complexity or protracted litigation. Indeed, as noted by
Plaintiff’s counsel, Magistrate Judge Mann herself has awarded, and even recommended, a onethird contingency fee in a number of cases. (See Pl.’s Obj. 13-14.) Where this has occurred,
Magistrate Judge Mann was presumably guided by “adequate documentation” supporting the fee
arrangement, as urged by the court in Cheeks. See 796 F.3d at 206. Without the opportunity for
Cheeks review, the Court cannot determine whether such adequate documentation exists to
support Plaintiff’s counsel’s fee award here.
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It should not go without mention that Plaintiff’s counsel’s decision to file a Rule
41(a)(1)(A)(i) notice of voluntary dismissal without prejudice after the issuance of Magistrate
Judge Mann’s report and recommendation also raises some concern. This is particularly so in
light of the parties’ admission that judicial scrutiny would “directly impact” the terms of the
settlement. (See Def.’s Mot. Extension.) Notices of dismissal without prejudice should not be
used in FLSA cases as a mechanism to effect an end-run around the policy concerns articulated
in Cheeks. It appears to the Court that Plaintiff’s counsel made the strategic decision to do just
The lion’s share of the remaining arguments in objection are tautological. Plaintiff’s
counsel argues in one manner or another that the Court should sustain his objection because
Cheeks does not mandate judicial review when a case is dismissed without prejudice. (See Pl.’s
Obj. 5-6, 8, 18.) Going one step further, he maintains that the Cheeks court even signaled that it
would not require judicial review in such cases were the issue before it. (See id. at 5-6.)
Plaintiff’s counsel takes this position notwithstanding the fact that the court in Cheeks expressly
“[left] for another day” the question of whether judicial approval is required for FLSA
settlements effected by Rule 41(a)(1)(A) stipulations without prejudice. See 796 F. 3d at 201
n.2. Plaintiff’s counsel reaches his conclusion only by appealing to his role as the attorney who
argued on behalf of the plaintiff in Cheeks. According to Plaintiff’s counsel, at oral argument,
“the Second Circuit panel seemed inclined not to require court approval even where dismissal
was with prejudice.” (Pl.’s Obj. 6.) Plaintiff’s counsel attempts to buttress his argument with a
misplaced reliance on the DOL’s amicus curiae submission in the Cheeks case. He baselessly
claims that the Cheeks court “adopt[ed] the reasoning” of the DOL’s submission. (See id. at 5.)
First, nowhere in the Cheeks decision does the court indicate that it adopted any aspect of the
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DOL’s reasoning. Second, Plaintiff’s counsel completely misstates the DOL’s position.
According to Plaintiff’s counsel, the DOL implied in its submission that “a dismissal without
prejudice has no . . . preclusive effect and is not a waiver of claims.” (Pl.’s Obj. 6). The DOL
did no such thing. In fact, the DOL explicitly stated, “This brief does not address a Rule 41(a)(1)
stipulation of dismissal without prejudice, an issue that is not present in this case and that would
raise separate legal questions.” Brief for U.S. Dep’t Labor as Amicus Curiae at 1 n.1, Cheeks,
No. 14-299 (2d Cir. Mar. 27, 2015). Apparently, the DOL, too, left this issue for another day. 5
Finally, nothing in the text of Rule 41 convinces the Court that its holding here is
anything other than consistent with the Rule’s plain reading. Rule 41 provides, in relevant part:
Subject to . . . any applicable federal statute, the plaintiff may dismiss an action without a
court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
Fed. R. Civ. P. 41(a)(1)(A). “Unless the notice or stipulation states otherwise, the dismissal is
without prejudice.” Fed. R. Civ. P. 41(a)(1)(B).
Invoking the “unique policy considerations underlying the FLSA,” the Cheeks court held
that the FLSA fell within Rule 41’s “applicable federal statute” exception, such that it could limit
a plaintiff’s otherwise peremptory ability to dismiss an action without a court order. See 796
F.3d at 206. As Magistrate Judge Mann observed, the phrase “any applicable federal statute”—
the textual linchpin for the Cheeks decision—modifies both subparts (i) and (ii) of the Rule. (See
R. & R. 7.) See also Martinez v. Ivy League Sch., Inc., No. 15-CV-7238, 2016 WL 3582062, at
The Court deems it unnecessary to address Plaintiff’s counsel’s argument that requiring judicial review of Rule
41(a)(1)(A) dismissals without prejudice constitutes a “threat to judicial efficiency and integrity.” (Pl.’s Obj. 17.)
Magistrate Judge Mann’s report and recommendation already makes clear the absurdity of Plaintiff’s counsel’s
position. (See R. & R. 10.)
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*3 (E.D.N.Y. June 28, 2016) (“Tellingly, the language relied on by the Cheeks Court, viz. ‘any
applicable federal statute,’ precedes both subsections of Rule 41(a)(1)(A).”). Plaintiff’s counsel
has not provided the Court with any textual basis to conclude that the FLSA constitutes an
“applicable federal statute” as to subpart (ii), but not subpart (i)—and the Court finds none.
For the same reason, Plaintiff’s counsel’s jurisdictional argument is unavailing.
Plaintiff’s counsel correctly points out that “a notice of voluntary dismissal without prejudice,
pursuant to FRCP Rule 41(a)(1)(A)(i), is a jurisdictional event that divests the court of
jurisdiction or authority to act further . . . .” (Pl.’s Obj. 4.) Plaintiff’s counsel also rightly notes
that a plaintiff typically need not seek permission from the defendant or the court in order to
effectuate such a dismissal. (See id. at 7-8 (citing A.B. Dick Co. v. Marr, 197 F.2d 498, 501 (2d
Cir. 1952).) Plaintiff’s counsel goes too far, however, in asserting that for this reason the Court
cannot require judicial review. (See id. at 8.) The right to utilize Rule 41(a)(1)(A)’s jurisdictionterminating dismissal is not at all times unfettered. Instead, it is constrained, as discussed above,
where an “applicable federal statute” applies.
For the foregoing reasons, this Court adopts the Magistrate Judge Mann’s November 23,
2016 report and recommendation with respect to the parties’ request for clarification as to
whether Cheeks review is required. The request for an extension of time to file the settlement
agreement and stipulation of dismissal is denied as moot. On or before October 6, 2017, the
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parties are directed to file papers sufficient to allow a Cheeks review of their proposed settlement
agreement or an executed Section 636 consent form, after which Magistrate Judge Mann will
schedule a telephonic Cheeks hearing.
Dated: September 30, 2017
Brooklyn, New York
LASHANN DEARCY HALL
United States District Judge
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