Gable v. SA Midtown LLC et al

Filing 65

OPINION AND ORDER. I conclude that the settlement reached by the parties is fair and reasonable. The claims and defenses of both sides rest primarily on testimonial evidence, making it particularly difficult to predict the outcome of the case. At t he settlement conference, counsel for both sides demonstrated a mastery of the evidence and pertinent legal principles; counsel for both sides also represented their respective clients zealously. Given the conflicting evidence, the quality of the evi dence and the allocation of the burden of proof on plaintiffs, the settlement represents a reasonable compromise with respect to contested issues, and, therefore, I approve it. Reyes v. Altamarea Group, LLC, 10 Civ. 6451 (RLE), 2011 WL 4599822 at *6 (S.D.N.Y. Aug. 16, 2011)(Ellis, M.J.) (As further set forth in this Order) (Signed by Magistrate Judge Henry B. Pitman on 6/22/2015) Copies Sent By Chambers. (lmb)

USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOCUMENT
ELECI'RONICALLY F1LED
DOC#:

------~~------DATE FILED: '/21 1!£

WIOLETA GABEL, et al. ,
13 Civ. 5928 (HBP)
Plaintiffs,
OPINION
AND ORDER

-againstSA MIDTOWN LLC, et al.,
Defendants.

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PITMAN, United States Magistrate Judge:

This matter is before me on the parties joint' application to approve the settlement reached in this matter.

All

parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C.

§

636(c).

This is an action for allegedly unpaid wages and
overtime brought under the Fair Labor Standards Act ("FLSA"), 29
U.S.C.

§§

201 et seq. and the New York Labor Law.

Plaintiffs are

three individuals formerly employed as barmaids and/or waitresses
at a restaurant operated by defendants; the action has not been
litigated as a collective or class action.

In pertinent part,

plaintiffs allege that they were improperly paid the reduced "tip
credit"

minimum wage, but that defendants were not entitled to

pay them at this reduced rate because they were forced to share

their tips were with non-tipped employees, namely captains.
Defendants claim that plaintiffs were paid all the amounts they
were due and that tips were not improperly shared.
Both the claims and defenses are based almost entirely
on oral testimony.

Ths issue in a case such as this is the

degree of authority that the captains exercised over the tipped
employees; a captain who exercises "meaningful or significant
authority" 1 is not entitled to participate in a tip pool.
Barenboin v. Starbucks Corp., 23 N.Y.3d 460, 473, 995 N.E.2d 153,
160, 972 N.Y.S.2d 191, 198 (2013).
I conducted a lengthy settlement conferences with
counsel and the parties on November 13 and December 8, 2014.
After several hours of discussion, the parties agreed to the
terms of a confidential settlement, a principal component of
which was suggested by me independently of the parties' positions. 2

In other words, a principal component of the settlement

1

"Meaningful authority might include the ability to
discipline subordinates, assist in performance evaluations or
participate in the process of hiring or terminating employees, as
well as having input in the creation of employee work schedules,
thereby directly influencing the number and timing of hours
worked by staff as well as their compensation.
[T]he power to
hire and fire is not the exclusive test." Barenboin v. Starbucks
Corp., supra, 23 N.Y.3d at 473, 995 N.E.2d at 160, 972 N.Y.S.2d
at 198.
2

Because confidentiality is a material term of the
settlement, I shall not disclose its terms in this opinion and
order.
2

was suggested by me and was outside of both sides'

"final"

settlement positions that had been reached after many hours of
negotiations.
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., 12 Civ. 7836 (RLE), 2013 WL 1803736 at *7
(S.D.N.Y. Apr. 29, 2013)

(Ellis, M.J.).

I conclude that the settlement reached by the parties
is fair and reasonable.

The claims and defenses of both sides

rest primarily on testimonial evidence, making it particularly
difficult to predict the outcome of the case.

At the settlement

conference, counsel for both sides demonstrated a mastery of the
evidence and pertinent legal principles; counsel for both sides
also represented their respective clients zealously.

Given the

conflicting evidence, the quality of the evidence and the allocation of the burden of proof on plaintiffs, the settlement repre3

sents a reasonable compromise with respect to contested issues,
and, therefore, I approve it.

Reyes v. Altamarea Group, LLC, 10

Civ. 6451 (RLE), 2011 WL 4599822 at *6 (S.D.N.Y. Aug. 16, 2011)
(Ellis, M.J.)
Dated:

New York, New York
June 22, 2015
SO ORDERED

H~;:z/~
United States Magistrate Judge
Copies transmitted to:
Robert Wisniewski, Esq.
Suite 1020
225 Broadway
New York, New York 10007
Noel P. Tripp, Esq.
Jackson Lewis P.C.
Suite 250
58 South Service Road
Melville, New York 11747

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