Savino et al v. Visiting Nurse Service of New York et al

Filing 71

OPINION AND ORDER: Accordingly, for all the foregoing reasons, I approve the settlement in this matter. In light of the settlement, the action is dismissed with prejudice and without costs. The Court shall retain jurisdiction to enforce the settlemen t agreement. See Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir.2015). The Clerk of the Court is respectfully requested to mark this matter closed. (Signed by Magistrate Judge Henry B. Pitman on 6/6/2017) Copies transmitted to all Counsel By Chambers. (js)

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
SCOTT SAVINO and LUIS COLON,
on behalf of themselves and
others similarly situated, et al.,

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15 Civ. 9451

(HBP)

Plaintiffs,
OPINION
AND ORDER

-againstVISITING NURSE SERVICE OF NEW
YORK and VNS CHOICE,
Defendants.

-----------------------------------x
PITMAN, United States Magistrate Judge:

This matter is before me on a joint application to
approve the parties' settlement (Docket Item ("D. I.")

69).

All

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

§

636(c).

The parties reached their proposed settlement before I
could schedule a settlement conference, and my knowledge of the
underlying facts and the justification for the settlement is,
therefore, limited to the complaint and counsels' representations
in their application seeking settlement approval.

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 2 of 10

Plaintiffs formerly worked for defendants as Community
Outreach Coordinators

("COCs")

1

and seek, by this action, to

recover unpaid overtime premium pay.

Plaintiffs assert their

claims under the Fair Labor Standards Act
§§

201 et

~·,

(the "FLSA"), 29 U.S.C.

and New York Labor Law (the "NYLL") .

Plaintiffs

also assert claims based on defendants' alleged failure to
maintain certain records and to provide certain notices under the
Wage Theft Prevention Act.

The action was commenced as a collec-

tive action with respect to the FLSA claim, and the parties
stipulated to the matter proceeding as a collective action.
Defendants deny plaintiffs' allegations.

2

They contend

that plaintiffs worked less than 40 hours per week, as demonstrated by their weekly schedules, and that plaintiffs were
exempt from the federal and state overtime requirements.

1

COCs were employed "to report to local community based
organizations in order to distribute information regarding
Defendants and the health insurance programs offered during
health fairs, galas, and community events.
[They were] also
responsible for requesting permission from community based
organizations so that they may setup [sic] promotional tables,
decorations, banners, and distribute promotional brochures at
community events" (Third Amended Collective Action Complaint,
dated Apr. 14, 2016 (D.I. 40) ~ 3).
2

Although the action was commenced as a putative class
action with respect to the Labor Law claims, the parties reached
the proposed settlement prior to the matter being certified as a
class action.
2

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 3 of 10

The parties reached their proposed settlement after a
10-hour mediation session before Vivian Berger, Esq., who counsel
describes as "a well-known employment mediator"

(Letter from

Marijana Matura, Esq., and John Keil, Esq., to the undersigned,
dated Feb. 17, 2017

(D.I.

69)

("Matura Letter"), at 2).

The

parties agreed to resolve the dispute for a total settlement
amount of $150,000.00, to be distributed among plaintiffs on a
12.£.Q

rata basis.

The parties have also agreed that $3,300.00 of

the settlement figure will be allocated to reimburse plaintiffs'
counsel for their out-of-pocket costs, $48,895.11

(or one-third)

of the remaining $146,700.00 will be paid to plaintiffs' counsel
and the balance will be paid to plaintiffs.

The amount claimed

by each plaintiff 3 and the net amount that will be received by
each plaintiff after deduction for legals fees and costs are as
follows:

Plaintiff

Amount
Claimed

Net
Settlement
Amount

Scott Savino

$111,233.35

$33,597.03

Luis Colon

$19,837.50

$6,074.72

Natasha Barbara

$55,352.51

$16,950.25

3

The amount claimed by each of the plaintiffs includes the
allegedly unpaid overtime, liquidated damages and interest.
It
does not include statutory damages for alleged violations of New
York's Wage Theft Prevention Act (Matura Letter, Ex. 7).
3

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 4 of 10

$104,958.54

TOTAL

$2,876.86

$322,045.25

Iris Vega

$6,513.00

$9,394.63

Juan G. DeJesus

$31,793.03

$21,268.72

Naama Francois

$97,804.89

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
(S.D.N.Y. Apr. 4, 2013)

(HB), 2013 WL 1401887 at *1

(Baer, D.J.)

(alterations in original)

"Generally, there is a strong presumption in favor of finding a
settlement fair,

[because] 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,

2d 362, 365 (S.D.N.Y. 2013)
tion marks omitted).

(Gorenstein, M.J.)

948 F. Supp.

(internal quota-

"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, supra, 679 F.2d at 1353-54.

4

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 5 of 10

In Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332,
335 (S.D.N.Y. 2012), the Honorable Jesse M. Furman, United States
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.
(Internal quotation marks omitted).

The settlement here satis-

fies these criteria.
First, although the net settlement represents approximately 30% of plaintiffs' claimed damages, that fact does not
render it deficient.

A majority of plaintiffs' weekly schedules

showed less than forty hours worked each week.

Additionally,

defendants argue that plaintiffs were exempt from the overtime
requirements and are, therefore, entitled to no damages for
overtime work.

As discussed in more detail below, given the

risks these issues present, the settlement amount is reasonable.
Second, the settlement will entirely avoid the burden,
expense and aggravation of litigation.

5

If the case were to

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 6 of 10

proceed, the parties would need to review 230,000 documents that
exist in electronic form ("ESI"), exchange all responsive ESI and
conduct depositions

(Matura Letter, Ex. 1

~

21).

The settlement

avoids the necessity of conducting this discovery.
Third, the settlement will enable plaintiffs to avoid
the risks of litigation.

As noted above, plaintiffs' weekly

schedules typically showed less than forty hours worked each
week.

Additionally, defendants take the position that plaintiffs

were exempt employees and, therefore, not entitled to overtime.
The Secretary of Labor's regulations implementing the FLSA state
that administrative employees generally qualify as exempt employees.

Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 531-32

Cir. 2009).

(2d

However, the law is also clear that an employee's

title, by itself, is not determinative of whether he or she is
exempt from the overtime requirements; instead, the court must
examine the nature of the employee's duties.

Reiseck v. Univer-

sal Commc'ns of Miami, Inc., 591 F.3d 101, 105 (2d Cir. 2010);
Moran v. GTL Constr., LLC,
*2

(S.D.N.Y. July 24, 2007)

06 Civ. 168

(SCR), 2007 WL 2142343 at

(Robinson, D.J.).

Litigation would,

therefore, require testimony as to the nature of plaintiffs'
duties, which would raise issues of credibility.

Additionally,

the only case to address whether COCs are exempt employees, Viola
v. Comprehensive Health Mgmt., Inc., No. 8:09-cv-1980-T-23AEP,
6

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 7 of 10

2010 WL 5463080 at *5 (M.D. Fla. Dec. 29, 2010), aff'd, 441 F.
App'x 660 (11th Cir. 2011)
exempt.

(~

curiam), found that COCs were

Thus, whether plaintiffs would recover at trial is far

from certain.

See Bodon v. Domino's Pizza, LLC, No. 09-CV-2941

(SLT), 2015 WL 588656 at *6 (E.D.N.Y. Jan. 16, 2015)
Recommendation)

(Report

&

(" [T] he question [in assessing the fairness of a

class action settlement] is not whether the settlement represents
but whether it represents a

the highest recovery possible .

reasonable one in light of the many uncertainties the class
faces .

"

(internal quotation marks omitted)), adopted sub

nom. 12.y, Bodon v. Domino's Pizza, Inc., 2015 WL 588680 (E.D.N.Y.
Feb. 11, 2015); Massiah v. MetroPlus Health Plan, Inc., No. 11cv-05669 (BMC), 2012 WL 5874655 at *5 (E.D.N.Y. Nov. 20, 2012)
("[W]hen a settlement assures immediate payment of substantial
amounts to class members, even if it means sacrificing speculative payment of a hypothetically larger amount years down the
road, settlement is reasonable

" (internal quotation marks

omitted; assessing fairness of class action settlement)).
Fourth, counsel represents that the settlement is the
product of arm's-length bargaining between experienced counsel
(Matura Letter, at 4 & Ex. 1

~~

23, 26-44)

Fifth, there are no factors here that suggest the
existence of fraud or collusion.

The likelihood of fraud or
7

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 8 of 10

collusion is also lessened by the fact that the settlement was
reached before a mediator.
The settlement agreement also contains a release.

It

provides that plaintiffs release defendants from "any and all
[FLSA] and [NYLL]

(including Section 195 thereof) wage-and-hour

claims, from the beginning of the world through the date of
Plaintiffs' execution of this release"
5).

(Matura Letter, Ex. 2

Such a release, although unlimited in duration,

§

is permissi-

ble because it is limited to wage-and-hour claims arising under
the FLSA and NYLL.

See, g.g, Santos v. Yellowstone Props., Inc.,

15 Civ. 3986 (PAE), 2016 WL 2757427 at *l, *3
2016)

(Engelmayer, D. J.)

(S.D.N.Y. May 10,

(approving release that included both

known and unknown claims and was limited to wage and hour claims); Hyun v. Ippudo USA Holdings, 14 Civ. 8706 (AJN), 2016 WL
1222347 at *3-*4

(S.D.N.Y. Mar. 24, 2016)

(Nathan, D.J.)

(approv-

ing release that included both known and unknown claims and
claims through the date of the settlement that was limited to
wage and hour issues; rejecting other release that included both
known and unknown claims and claims through the date of the
settlement that was not limited to wage and hour issues); Alvarez
v. Michael Anthony George Constr. Corp., No. 11 CV 1012
(DRH) (AKT), 2015 WL 10353124 at *l (E.D.N.Y. Aug. 27, 2015)
(rejecting release of all claims "whether known or unknown,
8

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 9 of 10

arising up to and as of the date of the execution of this Agreement" because it included "the release of claims unrelated to
wage and hour issues"

(internal quotation marks omitted)).

The settlement agreement also provides that, after
deduction of out-of-pocket costs, one-third of the total settlement amount will be paid to plaintiffs' counsel as a contingency
fee.

Contingency fees of one-third in FLSA cases are routinely

approved in this circuit.
Inc., 15 Civ. 814
2015)

Santos v. EL Tepeyac Butcher Shop

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

(Abrams, D. J. )

(" [ C] our ts in this District have declined to

award more than one third of the net settlement amount as attorney's fees except in extraordinary circumstances."), citing Zhang
v. Lin Kumo Japanese Rest. Inc., 13 Civ. 6667
5122530 at *4

(S.D.N.Y. Aug. 31, 2015)

(Engelmayer, D.J.) and

Thornhill v. CVS Pharm., Inc., 13 Civ. 507
at *3 (S.D.N.Y. Mar. 20, 2014)

(PAE), 2015 WL

(JMF), 2014 WL 1100135

(Furman, D.J.); Rangel v.

Grand St. Meat & Produce Corp., No. 13 CV 3234
5308277 at *l (E.D.N.Y. Sept. 19, 2013)

639

(LB), 2013 WL

(approving attorneys'

fees of one-third of FLSA settlement amount, plus costs, pursuant
to plaintiff's retainer agreement, and noting that such a fee
arrangement "is routinely approved by courts in this Circuit");
Febus v. Guardian First Funding Grp., LLC, 870 F. Supp. 2d 337,
340 (S.D.N.Y. 2012)

(Stein, D.J.)
9

("[A]

fee that is one-third of

Case 1:15-cv-09451-HBP Document 71 Filed 06/07/17 Page 10 of 10

the fund is typical" in FLSA cases); accord Calle v. Elite
Specialty Coatings Plus, Inc. , No. 13-CV-612 6 (NGG) (VMS) , 2014 WL
6621081 at *3 (E.D.N.Y. Nov. 21, 2014); Palacio v. E*TRADE Fin.
Corp., 10 Civ. 4030
Y. June 22, 2012)

(LAP) (DCF), 2012 WL 2384419 at *6-*7

(S.D.N.-

(Freeman, M.J.).

Accordingly, for all the foregoing reasons, I approve
the settlement in this matter.

In light of the settlement, the

action is dismissed with prejudice and without costs.

The Court

shall retain jurisdiction to enforce the settlement agreement.
See Hendrickson v. United States, 791 F.3d 354, 358
2015).

(2d Cir.

The Clerk of the Court is respectfully requested to mark

this matter closed.
Dated:

New York, New York
June 6, 2017
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel of Record

10