Jung v. Kim et al
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
KI DONG JUNG, on behalf of himself
and others similarly situated; and
OSCAR G. MORI and RUDY VALDEZ,1
-againstMAL SOON KIM, YEO HAN KIM,
INTERNATIONAL LEATHER CARE COMPANY
Robert Wisniewski, Esq.
Robert Wisniewski & Associates P.C.
225 Broadway, Suite 1020
New York, NY 10007
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
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
(collectively, “Defendants”) seeking judicial approval of: (1)
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.)
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.)
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.
agreement for the Court’s approval.
(Docket Entries 74 and 76.)
(Order, Docket Entry 77.)
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.)
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.)
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
directive, (Sec. Mot. at 1), the parties have failed to file their
revised settlement agreement on the public docket.
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
Zhang v. Lin Kumo Japanese Restaurant, Inc., No. 13-CV-
6667, 2015 WL 5122530, at *4 (S.D.N.Y. Aug. 31, 2015).
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
(See Agmt. at 2, ¶ 2; Prior Counsel Agmt. at 2, ¶ 1.)
allegations regarding the work completed by Mr. Wisniewski and
negotiations with Rand and Kim, as well as Mr. Wisniewski’s billing
(See Sec. Mot.; Sec. Mot. at Ex. 3.)
While the Court is
mindful of the parties’ representation that the issue of attorneys’
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
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).
For the foregoing reasons, the Court DENIES the parties’
joint motion for settlement approval (Docket Entry 81).
parties are directed to either: (1) file a revised agreement on
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
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).
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
6 , 2017
Central Islip, New York
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