Mendez v. Louie's Seafood Restaurant, LLC et al

Filing 21

ORDER re: 20 Settlement Agreement. The parties' joint request for approval of the Agreement is DENIED with leave to renew as outlined in the Order. If the parties do not submit a renewed application within 30 days of the date of this Order, this action will be referred to Judge Tomlinson for discovery. Ordered by Judge Joanna Seybert on 5/1/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
OSCAR MENDEZ, individually and on
behalf of all other persons similarly
situated,
Plaintiff,
ORDER
12-CV-3202(JS)(AKT)

-againstLOUIE’S SEAFOOD RESTAURANT, LLC and/or
any other entities affiliated with,
controlling, or controlled by LOUIE’S
SEAFOOD RESTAURANT, LLC, and/or
MARTIN PICONE and MICHAEL GUINNANE,

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Jeffrey Kevin Brown, Esq.
Daniel Harris Markowitz, Esq.
Jessica Lorraine Parada, Esq.
Michael Alexander Tompkins, Esq.
Leeds Brown Law, P.C.
1 Old Country Road, Suite 347
Carles Place, NY 11514
For Defendants:

Laura M. Dilimetin, Esq.
Dilimeten & Dilimeten
47 Plandome Road
Manhasset, NY 11030

SEYBERT, District Judge:
Presently
Settlement

Agreement

before
&

the

General

Court

is

Release”

a

“Confidential

(the

“Agreement”)

submitted by the parties for judicial approval.
20.)

(Docket Entry

“Stipulated settlements in a [Fair Labor Standards Act

(‘FLSA’)] case must be approved by the Court in the absence of
the direct supervision of the Secretary of Labor.”
D’Onofrio

Gen.

Contractors

Corp.,

No.

Misiewicz v.

08-CV-4377,

2010

WL

2545439,

at

*3

(E.D.N.Y.

May

17,

2010)

(report

and

recommendation), adopted by 2010 WL 2545472 (E.D.N.Y. June 18,
2010); see also Wolinsky v. Scholastic Inc., --- F. Supp. 2d ---,

2012

WL

2700381,

at

*1

(S.D.N.Y.

July

5,

2012)

(“[A]n

employee may not waive or otherwise settle an FLSA claim for
unpaid wages for less than the full statutory damages unless the
settlement

is

supervised

by

the

Secretary

of

Labor

or

made

pursuant to a judicially supervised stipulated settlement.”).
In determining whether to approve a settlement of FLSA claims,
the court must scrutinize the agreement to determine whether it
is

fair

and

reasonable.

(collecting cases).

Wolinsky,

2012

WL

2700381,

at

*1

The Court has reviewed the Agreement, and

there are three issues that the Court must address.
First, in discussing and referencing this lawsuit, the
Agreement repeatedly refers to case number 12-CV-3203.
Agreement at Whereas Clause 3 & § 3.)

(See

However, this is case

number 12-CV-3202.
Second,
provision.

the

Agreement

includes

a

confidentiality

The Court previously advised the parties that they

must “make a substantial showing of need for the terms of their
settlement

to

contain

a

confidentiality

provision.”

(Order,

Docket Entry 18, at 3 (quoting Mosquera v. Masada Auto Sales,
Ltd., No. 09-CV-4925, 2011 WL 282327, at *1 (E.D.N.Y. Jan. 25,
2011)).

The parties argue that, because the Agreement has been
2

filed on the public docket, “the goal of the statute has been
accomplished.”

(Joint

Ltr.,

Docket

Entry

19,

at

1.)

They

continue:
As written this confidentiality agreement
does not permit Plaintiff Mendez to speak
about the settlement or encourage others to
come forward.
Therefore, the confidentiality clause here is more about disclosure
and solicitation, not about public scrutiny.
Meanwhile, the statute’s intent and effect
is preserved since it is unnecessary to
permit broadcasting a settlement to the
newspapers and the media, yet it will is
[sic] still be a publicly filed document.
(Id. at 1-2.)
noted

that

The Court disagrees.

every

employer

worries

At least one court has
that

“compromise

with

an

employee who has vindicated a valuable FLSA right will inform
and encourage other employees, who will vindicate their FLSA
rights (or who will wrongly, but expensively for the employer,
conclude that additional wages are due).”

Dees v. Hydradry,

Inc., 706 F. Supp. 2d 1227, 1244 (M.D. Fla. 2010).
“[a]lthough

perhaps

both

uncomfortable

and

However,

expensive

to

an

employer, vindication of FLSA rights throughout the workplace is
precisely

the

object

through the FLSA.”

Id.

Congress

chose

to

preserve

and

foster

Thus, “[b]y including a confidentiality

provision, the employer thwarts the informational objective of
the

[FLSA]

by

silencing

disputed FLSA right.”

the

employee

who

has

vindicated

a

Id. at 1242; see Bouzzi v. F & J Pine

Rest., L.L.C., 841 F. Supp. 2d 635, 640 (E.D.N.Y. 2012) (stating
3

that “confidentiality contravenes the legislative intent of the
FLSA”); Mosquera, 2011 WL 282327, at *1 (noting that “several
District

Courts

in

this

Circuit

have

banned

confidentiality

provisions in stipulated settlement agreements for FLSA actions”
(collecting cases)).

Thus, the Court finds that the inclusion

of a confidentiality provision in a settlement agreement filed
on the public docket does contravene the legislative purpose of
the FLSA, and the Court will not approve the Agreement so long
as it contains such a provision.
Third and finally, the Court is unable to determine
whether the settlement amount provided for in the Agreement is
fair and reasonable because the parties have failed to “provide
the [C]ourt with enough information to examine the bona fides of
the

dispute.”

Wolinsky,

2012

WL

2700381,

at

*1

(internal

quotation marks and citation omitted).
Thus, should the parties choose to submit a revised
Agreement for judicial approval, they must, at a minimum:
(1)

include the correct case number;

(2)

delete the confidentiality provision; and

(3)

provide the Court with additional information in

the form of affidavits or other documentary evidence explaining
why the proposed settlement figure is fair and reasonable, see
id. at *2 (noting that the court must consider “the plaintiff’s

4

range

of

possible

recovery”

and

“the

seriousness

of

the

litigation risks faced by the parties”).
CONCLUSION
For the foregoing reasons, the parties’ joint request
for approval of the Agreement is DENIED with leave to renew as
outlined

above.

If

the

parties

do

not

submit

a

renewed

application within thirty (30) days of the date of this Order,
this action will be referred to Judge Tomlinson for discovery.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

May
1 , 2013
Central Islip, NY

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