Checo et al v. Boston Post Road Food Corp. et al
ORDER. The settlement between the parties is approved. The full agreement as modified by the parties' stipulation about the release is attached to this order. The Clerk of Court is directed to close the case. (Signed by Judge Alison J. Nathan on 1/27/2016) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
, , . . . '40't!s
DATE FILED~JAN 2 l /.,;,
Boston Post Road Food Corp. et al.,
ALISON J. NATHAN, District Judge:
On June 24, 2014, Andres Checo ("Plaintiff') filed this action alleging violations of the
Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). Dkt. No. 1.
Plaintiff claimed that his employer, a Bronx supermarket, failed to pay legally required minimum
wages, overtime, and spread-of-hours pay. Id. On November 19, 2015, the parties submitted a
proposed settlement for the Court's approval. Dkt. No. 37. Under the terms of this settlement,
Plaintiff would receive $33,333.33 and his attorneys would receive $16,666.67. Id. at 2.
On December 15, 2015, the Court declined to approve the parties' settlement. Dkt. No.
46. In doing so, the Court indicated that the parties had "failed to provide the Court with
sufficient information to evaluate the fairness of their proposed settlement." Id. at 2. The Court
expressed concern over the scope of the release and requested additional information, including
(1) the Defendant's position on the hours Plaintiff claims to have worked; and (2) documentation
of how Plaintiffs attorneys spent their time. Id. at 3-4. On January 19, 2015, the parties
submitted a letter providing the requested information. Dkt. No. 49.
First, the parties provided clarification regarding the scope of their dispute with respect to
Plaintiffs hours worked. Plaintiff alleges that he worked 72 hours a week at a fixed salary of
$500. Id. at 1. Under these facts, Plaintiffs unpaid wages and overtime would be about
$49,000. Id. at 2. Defendants, on the other hand, allege that Plaintiff worked 50 hours a week at
a fixed salary of $500. Id. Under these facts, Plaintiffs unpaid wages would be at most $14,300
(and possibly less given vacation and holidays). Id. In light of the bona fide dispute over hours
and the questionable availability of "cumulative" liquidated damages, 1 the Court finds that a
settlement of $33,333.33 is "fair and reasonable." Wolinsky v. Scholastic Inc., 900 F. Supp. 2d
332, 335 (S.D.N.Y. 2012).
Second, the parties provided additional information about attorneys' fees. Plaintiffs
attorneys spent at total of 67 .85 hours on this case, which has been pending for over 18 months.
Dkt. No. 49 Ex. C. The settlement provides for $16.666.67 in attorneys' fees, at an average of
approximately $245 per hour. The Court finds this award to be reasonable.
Finally, the parties have agreed to narrow the general release provided in the initial
settlement agreement. The Court finds this narrower release to be reasonable.
For the foregoing reasons, the settlement between the parties is approved. The full
agreement as modified by the parties' stipulation about the release is attached to this order. The
Clerk of Court is directed to close the case.
New York, New York
In light of recent amendments to the NYLL, courts have held that a FLSA plaintiff cannot recover liquidated
damages under both FLSA and the NYLL. See, e.g., Inclan v. NY. Hosp. Grp., Inc., 95 F. Supp. 3d 490, 505-06
(S.D.N.Y. 2015); Santana v. Brown, No. 14-CV-4279 (LOS), 2015 WL 4865311, at *5 (S.D.N.Y. Aug. 12, 2015).
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