Barbecho et al v. M.A. Angeliades, Inc. et al

Filing 114

OPINION AND ORDER. Accordingly, I approve the settlements in this matter between defendants and plaintiffs Edison Agudo, Luis R. Agudo, Daniel Almazo, Jaime Castro, Elias Juarez, Victor Martinez, Luis Molina, Justo Saul Mora, Manuel Ortega, Jose Pin eda, Luis Pineda, Manuel Pineda, Cornelio Sigua, Luis Valdez, Jose Villa, Alfonso Yuquilima, Miguel Bonilla, Julio Pelaez, Manuel Imanagua, Luis Morocho and Alberto Cando. (As further set forth in this Order), Daniel Almazo, Miguel Bonilla, Albert o Cando, Jaime Castro, Manuel Imanagua (on behalf of himself and others similarly situated), Elias Juarez, Victor H. Martinez, Luis Molina (on behalf of himself and others similarly situated), Justo Mora, Luis Morocho (on behalf of himself and oth ers similarly situated), Manuel Ortega, Julio Pelaez, Luis Pineda, Cornelio Sigua, Luis Valdez, Jose Villa, Alfonso Yuquilima, Edison Agudo and Luis Rene Agudo terminated. (Signed by Magistrate Judge Henry B. Pitman on 4/1/2016) Copies Sent By Chambers. (lmb) Modified on 4/4/2016 (lmb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
LUIS BARBECHO, on behalf of
himself and others similarly
situated, et al.,

:
:

Plaintiffs,
-against-

11 Civ. 1717 (HBP)

:

OPINION
AND ORDER

:

M.A. ANGELIADES, INC., et al.,

:

Defendants.

:

-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

This is a collective action brought under the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and the
New York Labor Law ("NYLL").

Plaintiffs have also asserted a

breach of contract claim as third-party beneficiaries.

The

matter is currently before me on the parties' application to
approve the settlements agreed to so far by 21 of the 33 plaintiffs.

The parties have consented to my exercising plenary

jurisdiction pursuant to 28 U.S.C. § 636(c).
The action arises out of work performed by plaintiffs
in connection with contract between the defendants and various
public agencies, including the New York City Transit Authority

("NYCTA"), the New York City Housing Authority, the New York City
Department of Corrections and the New York City School Construction Authority.

Plaintiffs allege that they worked for defen-

dants as carpenters and laborers on these projects.

The con-

tracts required defendants to pay the plaintiffs a prevailing
rate of wage and also required that the plaintiffs be paid at
least one and one-half times their regular rate for work in
excess of forty hours per week and for weekend work.

Plaintiffs

allege that they worked Monday through Friday for forty hours and
sometimes were required to work an additional sixteen to twentyfour hours on weekends.

For the weekend work, plaintiffs claim

they were paid less than their regular hourly rate.
In 2009, several of the defendants were indicted for
falsifying business records and defrauding employees by underpaying them on four NYCTA projects.

Several of the defendants

pleaded guilty to some of the charges against them, and a restitution fund was established to provide compensation to those
workers who were underpaid.

The restitution fund, however, was

limited to the projects that were the subject of the indictment.
Additionally, in order to receive payment from the restitution
fund, a worker was required to release all claims against the
defendants.

Accordingly, many of defendants' employees did not

seek payment from the fund.
2

With respect to almost all plaintiffs, defendants do
not dispute that some wages are owed.
dispute how much is owed.

The parties do vigorously

In support of their contention that

plaintiffs' claims for unpaid wages after 2008 are exaggerated,
defendants note that commencing in 2008, an independent monitor
was installed to oversee defendants' payroll practices and that
training sessions for defendants' employees were conducted in
2008 at which the employees were advised of their rights under
the FLSA and the NYLL.

Defendants also note that NYCTA conducted

an audit to determine what was owed to employees who worked on
NYCTA projects, and the results of that audit disclosed unpaid
wages in amounts far smaller than those claimed by plaintiffs.
As additional evidence that plaintiffs' claims are exaggerated,
defendants cite plaintiffs' interrogatory answers which defendants argue are inconsistent with plaintiffs' present claims

and

work site access records maintained in connection with several of
the projects at issue.

For security reasons, several of the work

sites at issue recorded when workers entered and when they left
the site.

Defendants claim that these records demonstrate that

some of the plaintiffs could not have worked all the hours that
they claim.
On November 10, 2015, the late Honorable Miriam Goldman
Cedarbaum, United States District Judge, granted in part and
3

denied in part defendants motion for partial summary judgment.
Specifically, Judge Cedarbaum granted defendants' motion to
dismiss the NYLL claims but denied the motion to dismiss the
breach of contract claims.1

Almazo v. M.A. Angeliades, Inc., 11

Civ. 1717 (MGC), 2015 WL 6965116 (S.D.N.Y. Nov. 10, 2015).
Subsequent to Judge Cedarbaum's decision, I began
conducting day-long settlement conferences.

To date, conferences

were held on January 15, 22 and March 29, 2016.

At each settle-

ment conference, counsel and the principals discussed and negotiated the claims of 21 plaintiffs individually; the claims of
approximately seven plaintiffs were discussed at each conference.
To date, the following plaintiffs have agreed to settle their
claims:
Plaintiff

Amount Claimed

Settlement Amount

Edison Agudo

$126,649.00

$26,000.00

Luis R. Agudo

$110,248.00

$26,000.00

Daniel Almazo

$124,287.84

$19,000.00

Jaime Castro

$85,860.00

$29,000.00

Elias Juarez

$158,024.34

$29,000.00

Victor Martinez

$104,662.80

$38,000.00

Luis Molina

$107,353.00

$28,000.00

1

Defendants' motion did not seek dismissal of the FLSA
claims.
4

Justo Saul Mora

$329,133.00

$38,000.00

Manuel Ortega

$247,903.00

$29,000.00

Jose Pineda

$63,600.78

$32,434.00

Luis Pineda

$27,618.24

$5,000.00

Manuel Pineda

$24,225.00

$4,000.00

Cornelio Sigua

$97,394.40

$25,000.00

$129,388.32

$23,000.00

Jose Villa

$79,354.08

$25,000.00

Alfonso Yuquilima

$63,215.00

$21,000.00

Miguel Bonilla

$184,582.98

$12,000.00

Julio Pelaez

$185,550.48

$7,000.00

Manuel Imanagua

$115,953.93

$28,000.00

Luis Morocho

$299,062.40

$10,000.00

Alberto Cando

$191,394.36

$13,500.00

Luis Valdez

With one or two exceptions, each of the plaintiffs
listed above was present for the settlement conference with
counsel and, where necessary, an interpreter.

I personally

questioned all of the settling plaintiffs and confirmed that each
was agreeing to accept the respective sum listed above in full
and final satisfaction of that plaintiff's claim.

Each plaintiff

was present for the discussion between counsel at which defendants' counsel explained the reason for the settlement figure

5

that was being offered and why the settlement offers substantially discounted the plaintiffs' demands.
Counsel for both sides have requested that I approve
these settlement at this point so that payments to the plaintiffs
who have settled can be made promptly.
Court approval of an FLSA settlement is appropriate
"when [the settlement] [is] reached as a result of
contested litigation to resolve bona fide disputes."
Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL 4357376,
at *12 (S.D.N.Y. Sept. 16, 2011). "If the proposed
settlement reflects a reasonable compromise over contested issues, the court should approve the settlement." Id. (citing Lynn's Food Stores, Inc. v. United
States, 679 F.2d 1350, 1353 n. 8 (11th Cir.1982)).
Agudelo v. E & D LLC, 12 Civ. 960 (HB), 2013 WL 1401887 at *1
(S.D.N.Y. Apr. 4, 2013) (Baer, D.J.).

"Typically, courts regard

the adversarial nature of a litigated FLSA case to be an adequate
indicator of the fairness of the settlement."

Beckman v.

Keybank, N.A., 293 F.R.D. 467, 476 (S.D.N.Y. 2013) (Ellis, M.J.),
citing Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350,
1353-54 (11th Cir. 1982).
I conclude that the settlements set forth above are
fair and reasonable.

Although the settlements are generally less

than one half of each total claim, that fact does not render them
deficient.

Many of the sums plaintiffs claim still include an

amount for liquidated damages under the NYLL.

In light of Judge

Cedarbaum's decision dismissing the NYLL claims, these damages
6

are no longer available.

Second, the inconsistencies between the

amounts claimed by plaintiffs and their interrogatory answers and
the site access records constitute compelling evidence that
plaintiffs' provable damages are not as great as they claim.
Finally, I have confidence that the settlements are reasonable
based on their being agreed to by plaintiffs' counsel.

Plain-

tiffs' counsel was exceptionally well prepared at all of the
settlement conferences conducted to date and was fully familiar
with the claims of each plaintiff and the pertinent legal and
factual issues.

Given the exceptional diligence and zeal with

which plaintiffs' counsel represented their clients, I am confident that the settlements are fair.2
Accordingly, I approve the settlements in this matter
between defendants and plaintiffs Edison Agudo, Luis R. Agudo,
Daniel Almazo, Jaime Castro, Elias Juarez, Victor Martinez, Luis
Molina, Justo Saul Mora, Manuel Ortega, Jose Pineda, Luis Pineda,
Manuel Pineda, Cornelio Sigua, Luis Valdez, Jose Villa, Alfonso

2

I do not address the fee arrangement between plaintiff and
their counsel because I do not believe I am required to do so
under Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d
Cir. 2015), cert. denied, 136 S. Ct. 824 (2016). As described in
Cheeks, the purpose of the FLSA is to regulate the relationship
between an employee and her employer and to protect the employee
from over-reaching by the employer. 796 F.3d at 206. I do not
understand the FLSA to regulate the relationship between the
employee as plaintiff and his counsel or to alter the freedom of
contract between a client and his attorney.
7

Yuquilima, Miguel Bonilla, Julio Pelaez, Manuel Imanagua, Luis
Morocho and Alberto Cando.
Dated:

New York, New York
April 1, 2016
SO ORDERED

HENRY PIT
United States Magistrate Judge
Copies transmitted to:
All Counsel

8