Rodriguez et al v. Tabak et al

Filing 50

MEMORANDUM AND ORDER re: 48 Brief filed by Ernesto Hernandez, 47 Status Report filed by Ernesto Hernandez. For the foregoing reasons, this Court concludes that the settlement of this action is reasonable and appropriate. The Clerk is directed to enter judgment for the plaintiff and to close this case. (Signed by Judge P. Kevin Castel on 4/10/2013) (ja)

USDSSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ERNESTO HERNANDEZ,
Plaintiff,

12 Civ. 1402 (PKC)

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KALMAN TABAK, ABRAHAM
FINKELSTEIN, individually, NEW HOPE
FUND LLC, AGUILA INC., 1195 SHERMAN
AVE, LLC, 1056 BOYNTON AVE, LLC, and
437 MORRIS PARK LLC,
Defendants.

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P. KEVIN CASTEL, District Judge:
The parties have submitted a joint app lication to settle this action brought
pursuant to the Fair Labor Standards Act, 29 U.S.c. §§ 201, et seq. (the "FLSA").
Under the FLSA, a court must approve a plaintiff's waiver of FLSA claims "to
protect employees from inequality in bargaining powers." Elliott v. Allstate Investigations, Inc.,
2008 WL 827648, at *2 (S.D.N.Y. Mar. 19,2008) (Cote, 1.). "The FLSA imposes the obligation
to pay unpaid overtime compensation and 'an additional equal amount as liquidated damages' on
employers who violate its requirement that overtime wages be paid." Id. (quoting 29 U.S.C. §
216(b)). "The obligation to pay 'liquidated damages cannot be bargained away by bona fide
settlements of disputes over coverage.'" Id. (quoting D.A. Schulte, Inc. v. Gangi, 328 U.S. 108,
115 (1946»). "In determining whether the proposed settlement is fair and reasonable, a court
should consider the totality of circumstances, including but not limited to the following factors:
(1) the plaintiffs range of possible recovery; (2) the extent to which 'the settlement will enable
the parties to avoid anticipated burdens and expenses in establishing their respective claims and
defenses'; (3) the seriousness of the litigation risks faced by the parties; (4) whether 'the

settlement agreement is the product of armIs-length bargaining between experienced counsel';
and (5) the possibility of fraud or collusion." Wolinsky v. Scholastic Inc.,

F. Supp. 2d_,

2012 WL 2700381, at *2 (S.D.N.Y. July 5,2012) (Furman, l) (quoting Medley v. Am. Cancer
Soc'y, 2010 WL 3000028, at *1 (S.D.N.Y. July 23, 2010) (Jones, J.)). In addition, a plaintiff
seeking attorneys' fees must submit evidence providing a factual basis for the reward, or else the
fee application will be rej ected or reduced.

at *3 (collecting cases).

The action was commenced on February 24,2012. (Docket # 1.) Plaintiff alleges
that defendants violated the FLSA and New York Labor Law (the "NYLL") by failing to pay
him overtime and regular wages. He asserts that from March 2008 through March 2009 he
worked for defendants as a porter, and from April 2009 through September 2011 worked as a
handyman. (Am. CompI't '1'118,21.) On January 31,2013, while a motion to dismiss was
judice, the parties informed the Court that they had settled the action, and filed a copy of the
Settlement Agreement. (Docket # 43-44.) The parties agreed to settle the action for $11,000 in
exchange for a release of all claims. (Settlement Agrmt. 'I~ 1,6,22.) Pursuant to a retainer
agreement, plaintiffs counsel would be entitled to one-third of the settlement amount. (Docket #
48 at 8-9.)
Having reviewed the submissions filed in support of the settlement (Docket # 47­
48), the Court is satisfied that the settlement is appropriate, was negotiated at arm's length and is
not the product of coercion. Plaintiffs counsel has submitted evidence that the maximum
possible recovery that plaintiff could have received totaled $19,242.67, which would have been
possible only if plaintiff succeeded in proving violations of both the FLSA and the NYLL,
established wil1fulness, and received liquidated damages under both statutes. (Docket # 47, 48
Ex. A, B.) Counsel notes that if defendants succeeded, plaintiff would have received no
compensation. (Docket # 47,48 Ex. B.) Plaintiffs counsel asserts that his client was motivated

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to settle in order to "move on with his life" and to relocate. (Docket # 47.) Plaintiff has
submitted an affidavit in Spanish, which is also translated into English, confirming his
understanding of the range of possible recovery and the voluntary nature of the settlement.
(Docket # 48 Exs. C-D.)
Having reviewed plaintiffs application and the supporting memorandum of law,
the Court is satisfied that the settlement is reasonable given the possible range of recovery and
the risks of litigation, and is the product of arm's-length bargaining that occurred with no
fraudulent or collusive motivation.
In addition, the fee arrangement with plaintiffs counsel is reasonable. Plaintiffs
counsel represents that he has spent more than 60.61 hours working on this case. In receiving
one-third of the total recovery, plaintiffs hourly rate is approximately $60.50. Counsel notes
that this average hourly sum would be even lower if it included staff time.
For the foregoing reasons, this Court concludes that the settlement of this action is
reasonable and appropriate. The Clerk is directed to enter judgment for the plaintiff and to close
this case.
SO ORDERED.

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Dated: New York, New York
April 10, 2013

P. Kevin Castel
United States District Judge