Kim v. Colorful Nails in New Hyde Park Inc. et al

Filing 24

ORDER: the Court finds the Settlement Agreement to be fair and reasonable, and the settlement is therefore APPROVED. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/12/2019. (Cento, Patrick)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MIRAN KIM,
Plaintiff,
- against CV 18-3373 (AKT)
COLORFUL NAILS IN NEW HYDE PARK,
INC. d/b/a COLORFUL NAILS, and YOUNG
SUK CHOI, SAEMEE HONG, and SIN AE
HONG, individually,
Defendants.
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ORDER APPROVING SETTLEMENT AND
DISMISSAL WITH PREJUDICE OF CL AIMS
A. KATHLEEN TOMLINSON, Magistrate Judge:
The Court, having reviewed the Complaint filed in this case by Plaintiff MIRAN KIM,
as well as the Answer to the Complaint filed by the Defendants, having assessed the claims and
defenses raised by the parties, having taken into account the Parties’ exchange of documents
prior to the settlement, having reviewed the damages calculations, having carefully considered
the applicable case law, having carefully reviewed the proposed Settlement Agreement and
General Release, and for good cause shown, hereby ORDERS, ADJUDGES and DECREES
that:
1.

The Settlement Agreement, to the extent it addresses claims under the Fair Labor

Standards Act and the New York Labor Law: (a) is the result of arm’s length negotiations and
is fair to all Parties; (b) reasonably resolves a bona fide disagreement between the Parties with
regard to the merits of the Plaintiff’s claims; and (c) demonstrates a good faith intention by the

Parties (i) to fully and finally resolve the Plaintiff’s claims for liability and damages under the
Fair Labor Standards Act and the New York State Labor Law and (ii) not to re-litigate in
whole or in part at any point in the future the claims raised in this litigation or which could
have been raised in this litigation concerning the Plaintiff’s wages while employed by the
Defendants.
2.

The Settlement Agreement meets the standards set forth in Wolinsky v. Scholastic

Inc., 900 F.Supp.2d 332 (S.D.N.Y.2012) in that: (a) the Plaintiff’s range of possible recovery is
affected by the dispute over Defendants’ defenses, including Defendants’ argument that it did not
meet the annual $500,000 minimum annual gross revenues threshold to come within the definition of
an employer under the FLSA and that Plaintiff had been paid all monies owed under the FLSA and
NYLL; (b) Defendant Colorful Nails contends it was not an employer of the Plaintiff and, in any
event, asserts that it correctly applied the tip credit to Plaintiff’s wages; (c) the prospect exists
of defense witnesses providing testimony which conflicts with Plaintiff’s testimony; (d) the
settlement will enable the parties to avoid anticipated burdens and expenses in establishing their
respective claims and defenses at trial; (e) the record reflects qualitative risks for both sides
should the case proceed to trial, including the financial condition of the Defendants; (e) the
settlement is clearly the product of arm's length negotiations between experienced counsel; and
(f) the totality of the circumstances and the progression of this case demonstrate the lack of
fraud or collusion. See Wolinsky, 900 F.Supp.2d at 335 (internal quotations omitted).
3.

The Settlement Agreement complies with the Second Circuit’s guidance in

Cheeks v. Freeport Pancake House, 796 F.3d 199 (2d Cir. 2015) because: (a) there are no
restrictive confidentiality provisions which would otherwise conflict with the remedial
purposes of the FLSA; (b) the release is narrowly tailored to the FLSA and NYLL claims
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asserted in this litigation; and (c) the attorney’s fees which equate to one-third of the total
settlement amount are fair and consistent with the provisions of the retainer agreement
between Plaintiff and his counsel.
4.

The Plaintiff’s Release of the Defendants as partial consideration for the

settlement is sufficiently limited to deem the release fair and proper.
5.

Having reviewed the Settlement Agreement provision regarding attorney’s fees,

the Court finds that the apportionment of one-third of the settlement amount to the attorneys’
fees, as provided in the Settlement Agreement, is a fair and reasonable reflection of the services
rendered to the Plaintiff by her counsel, the Law Offices of Jacob Aronauer, by Jacob Aronauer, Esq.
and further meets the cross-check analysis applying the lodestar method.
6.

In light of all the foregoing factors, the Court finds the Settlement Agreement to

be fair and reasonable. The settlement is therefore APPROVED by the Court.
7.

This lawsuit and the claims of the Plaintiff asserted in it are DISMISSED, WITH

PREJUDICE, in their entirety.
8.

Each party shall bear his/its own costs, except as provided to the contrary in the

Settlement Agreement.
The Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
March 12, 2019
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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