Jung v. Kim et al

Filing 82

ORDER terminating 78 Motion for Order to Show Cause; denying 81 Motion for Settlement; For the foregoing reasons, the Court DENIES the parties' joint motion for settlement approval (Docket Entry 81). The parties are directed to either: (1 ) file a revised agreement on the public docket that contains a revised release and non-disparagement provision, and does not contain a counsel fee award exceeding one-third of the total settlement amount; or (2) file a letter indicating their intent to abandon their settlement and continue to litigate this action. The parties must take one of the above-mentioned actions within thirty (30) days of the date of this Order. Additionally, for the reasons set forth above, Defendants' Second Motion for Order to Show Cause (Docket Entry 78) is TERMINATED AS MOOT. The Clerk of the Court is also directed to TERMINATE Oscar G. Mori and Rudy Valdez as plaintiffs in this action as explained above. So Ordered by Judge Joanna Seybert on 1/6/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
KI DONG JUNG, on behalf of himself
and others similarly situated; and
OSCAR G. MORI and RUDY VALDEZ,1
Plaintiff,
ORDER
13-CV-4020(JS)(AYS)

-againstMAL SOON KIM, YEO HAN KIM,
INTERNATIONAL LEATHER CARE COMPANY
CORP.,

Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Robert Wisniewski, Esq.
Robert Wisniewski & Associates P.C.
225 Broadway, Suite 1020
New York, NY 10007
For Defendants:

Samuel Leonard Drukman, Esq.
Anthony P. Consiglio, Esq.
Brad Adam Schlossberg, Esq.
Ira S. Newman, Esq.
Rhoda Yohai Andors, Esq.
Sonia Haejin Lee, Esq.
The Law Offices of Ira S. Newman
98 Cutter Mill Road, Suite 441-S
Great Neck, NY 11021

The Court’s Order dated November 26, 2014 directed plaintiffs
Oscar G. Mori and Rudy Valdez to advise whether they wished to
proceed as plaintiffs in this action within fourteen days of
service of the Order. (Nov. 2014 Order, Docket Entry 48.) The
Court indicated that Mori and Valdez’ failure to indicate their
desire to continue as plaintiffs in this action would result in
their termination from this matter. (Nov. 2014 Order.) Counsel
for Plaintiffs served Mori and Valdez with the November 2014
Order on November 26, 2014. (See Docket Entry 49.) Mori and
Valdez failed to respond to the November 2014 Order or otherwise
participate in this action. Accordingly, the Clerk of the Court
is directed to TERMINATE Mori and Valdez as plaintiffs in this
action.
1

Evan M. Goldberg, Esq.
15-80 208th Street
Bayside, NY 11360
SEYBERT, District Judge:
Presently pending before the Court in this Fair Labor
Standards Act action is the second joint motion filed by plaintiff
Ki Dong Jung (“Plaintiff”) and defendants Mal Soon Kim, Yeo Han
Kim,

and

International

Leather

Care

Company

Corporation

(collectively, “Defendants”) seeking judicial approval of: (1)
their

settlement

agreement,

and

(2)

a

separate

settlement

agreement between Defendants, Plaintiff’s former counsel, William
Rand, Esq., and Do Kyung Kim, Esq. (collectively, “Rand and Kim”),2
and Defendants’ counsel (the “Prior Counsel Agreement”).3
Mot., Docket Entry 81.)

(Sec.

For the following reasons, the parties’

joint motion is DENIED.

Plaintiff was previously represented by Rand and his law firm,
the Law Office of William Coudert Rand, and Kim and his law
firm, the Law Firm of DK and Associates. (Prior Counsel Agmt.,
Docket Entry 81-2, at 1.)
2

On June 13, 2016, Defendants filed a Second Motion for Order to
Show Cause requesting that the Court, inter alia, award
Plaintiff $40,000 and award Plaintiff’s current and former
counsel attorneys’ fees totaling $20,000. (Defs.’ Mot., Docket
Entry 78.) On July 8, 2016, the parties submitted a joint
letter requesting an extension of time to file a revised
settlement agreement. (Pl.’s Ltr., Docket Entry 79.) In light
of the parties’ representation of their intent to draft a
revised settlement agreement and their subsequent submission of
a joint motion for settlement approval, (Sec. Mot., Docket Entry
81), Defendants’ Second Motion for Order to Show Cause is
TERMINATED AS MOOT.
3

2

In

November

2015,

the

parties

agreement for the Court’s approval.
On

May

12,

2016,

the

settlement agreement.

Court

denied

filed

a

settlement

(Docket Entries 74 and 76.)
approval

of

(Order, Docket Entry 77.)

the

parties’

The Court held

that the parties’ settlement agreement suffered from the following
defects: (1) an overbroad release and covenant not to sue, (2) a
non-disparagement clause that did not include a “carve out” that
would enable Plaintiff to make truthful statements about his
experience litigating this matter, and (3) an award of attorneys’
fees that exceeded one-third of the total settlement amount.
(Order at 2-6.)
On August 15, 2016, the parties filed a second joint
motion for settlement approval under seal.

(See Sec. Mot.)

The

parties allege that their “current settlement contains revised
release, covenant not to sue and non-disparagement clauses but
leaves counsel fees at the previous levels.”

(Sec. Mot. at 1.)

In support of their motion, the parties detailed the history of
this litigation--including Rand and Kim’s prior involvement in
this matter and negotiations regarding Rand and Kim’s attorneys’
fees--and attached copies of their settlement agreement, the Prior
Counsel Agreement, and billing records for Plaintiff’s current
counsel, Robert Wisniewski, Esq.

(See generally Sec. Mot.; Sec.

Mot. at Exs. 1-4, Docket Entries 81-1 through 81-4.)
allege

that:

(1)

they

settled
3

Plaintiff’s

The parties

claims

prior

to

negotiating counsel fees, (2) Rand and Kim’s fees were settled for
less than ten percent of their demand, and (3) Mr. Wisniewski’s
fees were resolved at a fifty percent discount.

(Sec. Mot. at 3.)

First, while the parties allege that they have revised
their

settlement

disparagement

agreement’s

clause

in

release

accordance

provision

with

non-

Court’s

the

and

prior

directive, (Sec. Mot. at 1), the parties have failed to file their
revised settlement agreement on the public docket.
Second

Motion

attaches

the

same

settlement

The parties’

agreement

dated

August 28, 2015, that the Court previously declined to approve.
(See Agmt., Sec. Mot. at Ex. 1, Docket Entry 81-1.)
Second, as noted in the Court’s prior Order, courts in
this Circuit have declined to award counsel fees exceeding onethird of the total settlement amount “[e]xcept in extraordinary
cases.”

Zhang v. Lin Kumo Japanese Restaurant, Inc., No. 13-CV-

6667, 2015 WL 5122530, at *4 (S.D.N.Y. Aug. 31, 2015).

Accord

Martinez v. Gulluogu LLC, No. 15-CV-2727, 2016 WL 206474, at *2
(S.D.N.Y. Jan. 15, 2016) (collecting cases).

Here, the parties’

total counsel fee award of $30,900 ($5,400 to Plaintiff’s prior
counsel and $25,500 to Plaintiff’s present counsel) constitutes
approximately forty-four percent of the total settlement amount of
$70,900.

(See Agmt. at 2, ¶ 2; Prior Counsel Agmt. at 2, ¶ 1.)
The

Court

has

reviewed

the

parties’

supplemental

allegations regarding the work completed by Mr. Wisniewski and
4

negotiations with Rand and Kim, as well as Mr. Wisniewski’s billing
records.

(See Sec. Mot.; Sec. Mot. at Ex. 3.)

While the Court is

mindful of the parties’ representation that the issue of attorneys’
fees

was

resolved

after

a

settlement

was

reached

regarding

Plaintiff’s claims, the Court continues to find that this case
does not present the “extraordinary” circumstances that would
warrant approval of attorneys’ fees exceeding one-third of the
total

settlement

amount.

Parenthetically,

“[t]he

fact

that

Plaintiff’s counsel’s claimed lodestar amount . . . would represent
an even higher percentage of the settlement is insufficient to
justify either the application of the [lodestar] method or the
award of a higher fee.”

Lopez v. Ploy Dee, Inc., No. 15-CV-0647,

2016 WL 1626631, at *4 (S.D.N.Y. Apr. 21, 2016) (second alteration
in original; internal quotation marks and citation omitted).
CONCLUSION
For the foregoing reasons, the Court DENIES the parties’
joint motion for settlement approval (Docket Entry 81).

The

parties are directed to either: (1) file a revised agreement on
the

public

docket

that

contains

a

revised

release

and

non-

disparagement provision, and does not contain a counsel fee award
exceeding one-third of the total settlement amount; or (2) file a
letter indicating their intent to abandon their settlement and
continue to litigate this action.

5

The parties must take one of

the above-mentioned actions within thirty (30) days of the date of
this Order.
Additionally, for the reasons set forth above, (see
supra n.3), Defendants’ Second Motion for Order to Show Cause
(Docket Entry 78) is TERMINATED AS MOOT.

The Clerk of the Court

is also directed to TERMINATE Oscar G. Mori and Rudy Valdez as
plaintiffs in this action as explained above (see supra n.1).

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
6 , 2017
Central Islip, New York

6