McCall v. Bronson Risk Consultants, Ltd.

Filing 35

MEMORANDUM AND ORDER - For the foregoing reasons, the Court DENIES Plaintiff's request for approval of the Proposed Agreement. The parties are directed to proceed in one of three ways listed herein. The parties must take one of the above mentioned actions within thirty (30) days of the date of this Order. So Ordered by Judge Joanna Seybert on 4/15/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
PATRICK MCCALL,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-2520(JS)(SIL)

BROSNAN RISK CONSULTANTS, LTD. and
PATRICK J. BROSNAN, individually,1
Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Kenneth L. Robinson, Esq.
Robert T. Neuner, Esq.2
Robinson & Associates, P.C.
35 Roosevelt Avenue
Syosset, New York 11791
For Defendants:

Michael N. Morea, Esq.
Cole Schotz
1325 Avenue of the Americas, 19th Floor
New York, NY 10019

SEYBERT, District Judge:
Plaintiff Patrick McCall (“Plaintiff”) has requested
judicial approval of the parties’ Settlement Agreement in this
Fair

Labor

Standards

Act

(“FLSA”)

action

(the

“Proposed

The Court’s review of the docket reveals that the defendants’
correct names are Brosnan Risk Consultants, Ltr. And Patrick J.
Brosnan. The Clerk of the Court is directed to correct the
docket accordingly.
1

Mr. Neuner’s attorney declaration states that he is a “former
associate of Robinson & Associates, P.C.” and “former counsel to
Plaintiff.” (Neuner’s Decl., Docket Entry 30.) However,
Plaintiff’s only attorneys of record in this action are Robinson
& Associates, P.C. If Mr. Neuner is representing Plaintiff
separately from Robinson & Associates, he must file a Notice of
Appearance with updated contact information.
2

Agreement”).

For the following reasons, the Court declines to

approve the Proposed Agreement.
BACKGROUND
Briefly, on April 21, 2014, Plaintiff commenced this
action

against

defendants

Brosnan

Risk

Consultants,

Ltd.

and

Patrick J. Brosnan (collectively, “Defendants”), asserting claims
under the FLSA. (See generally Compl., Docket Entry 1.) Plaintiff
subsequently

filed

an

Amended

additional claim pursuant to
Docket Entry 13.)

Complaint

that

included

New York Labor Law.

an

(Am. Compl.,

Defendants asserted counterclaims for unjust

enrichment and fraud.

(Am. Ans., Docket Entry 25.)

On August 31, 2015, Plaintiff filed a Stipulation of
Dismissal

with

prejudice

with

counterclaims in this action.

respect

to

all

(Docket Entry 27.)

claims

and

On October 22,

2015, the Court issued an Order to Show Cause directing the parties
to file a copy of their settlement agreement on the public docket
and demonstrate why the proposed settlement is fair and reasonable
(the “Order to Show Cause”).
28.)

(Order to Show Cause, Docket Entry

In response, Plaintiff filed two submissions: (1) a sealed

attorney declaration that attaches the Proposed Agreement as an
exhibit (Docket Entry 29); and (2) an unsealed attorney declaration
that does not include a copy of the Proposed Agreement.
Entry 30.)

2

(Docket

DISCUSSION
The Second Circuit has held that stipulated dismissals
settling FLSA claims pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(iii)

must

Department of Labor.

be

approved

by

in

FLSA

District

Court

or

Cheeks v. Freeport Pancake House, Inc.,

796 F.3d 199, 206 (2d Cir. 2015).
agreements

the

cases

are

As a result, “settlement

judicial

presumption of public access applies.”

documents

to

which

a

Martinez v. Ragtime Foods

of N.Y., Inc., No. 11-CV-1483, 2011 WL 5508972, at *1 (E.D.N.Y.
Nov. 10, 2011).
09-CV-4935,

Accord Mosquera v. Masada Auto Sales, Ltd., No.

2011

WL

(collecting cases).

282327,

at

*1

(E.D.N.Y.

Jan. 25,

2011)

To overcome this presumption, “the parties

must make a substantial showing of need for the terms of their
settlement to contain a confidentiality provision.”

Mosquera,

2011 WL 282327, at *2.
The Court’s Order to Show Cause expressly directed the
parties to file a copy of their settlement agreement on the public
docket in light of the presumption of public access that applies
to

FLSA

settlement

agreements.

(See

Order

to

Show

Cause.)

Instead, Plaintiff has filed the Proposed Agreement under seal
without making any showing as to why this agreement should not be
publicly filed.
30.)

(See generally Pl.’s Decl., Docket Entries 29 and

Accordingly, the Court declines to approve the Proposed

Agreement because it was not filed on the public docket.
3

The Court has reviewed the parties’ Proposed Agreement
filed under seal.

Notwithstanding the parties’ failure to file

this agreement on the public docket, the Court declines to approve
it

in

its

present

confidentiality

form.

The

provision;

Proposed

however,

as

Agreement
previously

contains
noted,

a

the

parties have failed to make a compelling showing sufficient to
overcome

the

presumption

settlement agreements.

of

public

access

afforded

to

FLSA

(See Prop. Agmt., Docket Entry 29-1, ¶ 5.)

See, e.g., Kang Ming Sun v. Guang Jun Li, No. 13-CV-8507, 2015 WL
6125710, at *1 (S.D.N.Y. Sept. 15, 2015) (Declining to approve the
FLSA settlement agreement and holding that “the confidentiality
provision prohibiting the parties from sharing any information
about the settlement other than for tax or legal purposes. . . is
contrary to well-established public policy.”); Mosquera, 2011 WL
282327, at *2 (Declining to approve the FLSA settlement agreement
where the parties failed to “make a substantial showing of a need
for the terms of their settlement to contain a confidentiality
provision [ ] to overcome the factors weighing in favor of public
access.”).
Additionally,

District

Courts

in

this

Circuit

have

declined to approve FLSA agreements containing releases that “are
far too sweeping to be fair and reasonable.”

Alvarez v. Michael

Anthony George Const. Corp., No. 11-CV-1012, 2015 WL 3646663, at
*2

(E.D.N.Y.

Jun.

10,

2015)

(Holding
4

that

the

settlement

agreement’s release was too “sweeping” where it “purport[ed] to
waive any possible claim against the defendants.”).
ranging

releases

are

particularly

problematic

Indeed, wide-

in

FLSA

cases

because “[i]n effect, the employer requests a pervasive release in
order to transfer to the employee the risk of extinguishing an
unknown claim . . . [but] an employer is not entitled to use an
FLSA claim . . . to leverage a release from liability unconnected
to the FLSA.”

Camacho v. Ess-A-Bagel, Inc., No. 14-CV-2592, 2014

WL 6985633, at *4 (S.D.N.Y. Dec. 11, 2014) (internal quotation
marks and citation omitted; second ellipsis in original).

Here,

the Court finds that the Proposed Agreement contains an overbroad
release of claims that is not limited to matters addressed in this
action.

(Prop. Agmt. ¶ 2(a).)

Accordingly, this “sweeping”

release of claims is wholly unreasonable.
3646663, at *2.

See Alvarez, 2015 WL

Accord Kang Ming Sun, 2015 WL 6125710, at *1.
CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s
request for approval of the Proposed Agreement.
directed to proceed in one of three ways:

The parties are

(1) the parties may

file a revised Agreement that does not include a confidentiality
provision and a “sweeping” general release on the public docket;
(2) the parties may submit a joint letter for in camera inspection
that explains why the Court should approve the Proposed Agreement,
either in its present form or with a modified confidentiality
5

provision

or

release;

or

(3)

the

parties

may

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.

SO ORDERED.

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

April
15 , 2016
Central Islip, New York

6