Camacho et al v. La Pentola Italian Pizzeria, Inc. et al

Filing 23

OPINION AND ORDER: I approve the settlement in this matter. In light of the settlement, the action is dismissed with prejudice and without costs. The Clerk of the Court is requested to mark this matter closed, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 7/20/2017) Copies Transmitted By Chambers. (ras)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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FREDY TOXQUI POJARITO
Plaintiff,
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OPINION
AND ORDER

LA PENTOLA ITALIAN PIZZERIA,
INC., d/b/a "La Pentola," 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 parties' settlement.

All parties have

consented to my exercising plenary jurisdiction pursuant to 28

u.s.c.

§

636(c).

This is an action brought by an individual who was
formerly employed as a cook and kitchen helper at defendants'
restaurant and seeks unpaid minimum wages, overtime premium pay,
spread-of-hours pay and liquidated and statutory damages.

The

action is brought under the Fair Labor Standards Act ("FLSA"), 29
U.S.C.

§§

201 et seg., and the New York Labor Law.

Plaintiff

alleges that he worked for defendants from late July 2008 through
July 2014, worked an average of 72 hours per seek and was paid a
flat salary of $350 per week until 2013 and $500 per week there-

after.

Plaintiff claims that his claims for unpaid minimum wages

and unpaid overtime premium pay total approximately $50,000
exclusive of liquidated damages.
Defendants admit that plaintiff worked for them but
contest the number of hours claimed by plaintiff and also claim
that from 2011 to 2012, plaintiff did no work for defendants but
worked at a different restaurant instead.

Defendants do not

admit that plaintiff is owed any damages.

Defendants also claim

that they lack the assets to pay a substantial settlement or
judgment.
Neither side has any documentary evidence to support
their positions, and it is not known whether there are any
disinterested witnesses with relevant knowledge.
I held a lengthy settlement conference with counsel and
their clients on February 6, 2015 at which the parties agreed to
settle the action for a total of $27,000.00.

After deduction of

counsels fee, plaintiff's net settlement will be approximately
$18,000.00
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 settle-

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ment." 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.).

"Generally, there is a

strong presumption in favor of finding a settlement fair,

[be-

cause] the Court is generally not in as good a position as the
parties to determine the reasonableness of an FLSA settlement."
Lliguichuzhca v. Cinema 60, LLC, 948 F. Supp. 2d 362, 365
(S.D.N.Y. 2013)

(Gorenstein, M.J.)

citations omitted) .

(inner quotation marks and

"Typically, courts regard the adversarial

nature of a litigated FLSA case to be an adequate indicator of
the fairness of the settlement."
F.R.D. 467, 476 (S.D.N.Y. 2013)

Beckman v. Keybank, N.A., 293
(Ellis, M.J.), citing Lynn's Food

Stores, Inc. v. United States, 679 F.2d 1350, 1353-54 (11th Cir.
1982).

The presumption of fairness in this case is bolstered by

the caliber of the parties' counsel.

All parties are represented

by counsel who are known to me to be extremely knowledgeable
regarding wage and hour matters and who are well suited to assess
the risks of litigation and the benefits of the proposed settlement.
In Wolinsky v. Scholastic, Inc., 900 F. Supp. 2d 332,
335 (S.D.N.Y. 2012), the Honorable Jesse M. Furman, United States

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District Judge, identified five factors that are relevant to an
assessment of the fairness of an FLSA settlement:
In determining whether [a] proposed [FLSA] settlement
is fair and reasonable, a court should consider the
totality of circumstances, including but not limited to
the following factors:
(1) the plaintiff's 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 arm's-length bargaining between experienced counsel; and (5) the possibility of fraud or collusion.
(Inner quotations and citations omitted) .

The settlement here

satisfies these criteria.
The actual damages sought by plaintiff, exclusive of
liquidated damages, are approximately $50,000.00.

Thus, the

settlement represents approximately 32% of the actual damages
alleged by plaintiff.
Second, the settlement will entirely avoid the burden,
expense and aggravation of litigation.

Plaintiff's case rests

entirely on plaintiff's oral testimony, and litigating the case
would require the taking of several depositions.

The settlement

avoids the expense and burden of these depositions.
Third, the settlement will enable plaintiff to avoid
the risk of litigation.

Defendants contest the hours claimed by

plaintiff, claim that he worked for another restaurant for at

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least one of the years in issue and also claim that they lack the
assets to satisfy a large judgment or settlement.

Although the

settlement does not provide plaintiff with the majority of the
damages plaintiff claims, it does provide him with a substantial
sum and eliminates the risk that a fact finder may credit defendants.
Finally, given the fact that the settlement was reached
at a conference before me during which a a substantial number of
offers and counter-offers were made, I am confident that it is
the product of arm's-length bargaining between experienced
counsel and that no fraud or collusion affected the parties'
negotiations.
It is my understanding that plaintiff's counsel will
receive one-third of the settlement figure as a contingency fee.
Contingency fees of one third in FLSA cases are routinely approved in this Circuit.

Santos v. EL Tepeyac Butcher Shop Inc.,

15 Civ. 814 (RA), 2015 WL 9077172 at *3 (S.D.N.Y. Dec. 15, 2015)
(Abrams, D.J.)

("courts in this District have declined to award

more than one third of the net settlement amount as attorney's
fees except in extraordinary circumstances"); Rangel v. 639 Grand
St. Meat & Produce Corp., No. 13-CV-3234 (LB), 2013 WL 5308277 at
*l (E.D.N.Y. Sept. 19, 2013)

(approving attorneys' fees of

one-third of FLSA settlement amount, plus costs, pursuant to
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plaintiff's retainer agreement, and noting that such a fee
arrangement "is routinely approved by the courts in this Circuit"); Febus v. Guardian First Funding Group, LLC, 870 F. Supp.
2d 337,

340-41

(S.D.N.Y. 2012)

(Stein,

D.J.)

("a fee that is

one-third of the fund is typical" in FLSA cases); accord Calle v.
Elite Specialty Coatings Plus, Inc., No. 13-CV-6126 (NGG) (VMS),
2014 WL 6621081, at *3 (E.D.N.Y. Nov. 21, 2014); Palacio v.
E*TRADE Fin. Corp., 10 Civ. 4030 (LAP), 2012 WL 2384419 at *6
(S.D.N.Y. June 22, 2012)

(Freeman, M.J.).

The fee award is,

therefore, approved.
Accordingly, I approve the settlement in this matter.
In light of the settlement, the action is dismissed with prejudice and without costs.

The Clerk of the Court is requested to

mark this matter closed.
Dated:

New York, New York
July 20, 2017
SO ORDERED

Hl~/~
United States Magistrate Judge
Copies transmitted to:
All Counsel

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