Ramirez et al v. Greenside Corporation et al
OPINION AND ORDER: This matter is before me on the parties' joint application to approve the parties' settlement (Docket Item 55). Accordingly, for all the foregoing reasons, I approve the settlement in this matter. In light of the settlem ent, the action is dismissed with prejudice and without costs. The Clerk of the Court is requested to mark this matter closed. (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 3/3/2017) Copies Sent By Chambers (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DATE FILED:. 3 6 7lz ...
MARIO RAMIREZ, et al.,
16 Civ. 726 (HBP)
-againstGREENSIDE CORPORATION, et al.,
PITMAN, United States Magistrate Judge:
This matter is before me on the parties' joint application to approve the parties' settlement (Docket Item 55).
parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C.
This is an action brought by twelve individuals who
were formerly employed by defendant Greenside Corporation; the
parties dispute whether defendant Kel-Tech Construction Inc.
("Kel-Tech") also employed plaintiffs.
Plaintiffs allege that
they were not paid for all the hours that they worked, were not
paid premium pay ("time-and-a-half") for overtime work, did not
receive spread of hours pay, were subjected to retaliation and
did not receive the prevailing wage on public projects.
tiffs assert their claims under the Fair Labor Standards Act, 29
201 et seq.
("FLSA"), and various provisions of the New
York Labor Law including the Wage Theft Prevention Act.
the action was commenced as a collective action with respect to
the FLSA claim and a putative class action with respect to the
Labor Law claims, the parties reached the proposed settlement
prior to the matter being conditionally certified as a collective
action or certified as a class action.
Thus, the only parties to
the settlement are the named plaintiffs and the named defendants.
In addition to denying that plaintiffs were employed by
defendant Kel-Tech, defendants deny that plaintiffs are owed any
In support of their defense, defendants have
offered time records which purport to reflect the hours worked
along with pay stubs, some of which reflect the payment of
overtime premium pay.
The parties have agreed to a total settlement of
$200,000.00, to be distributed among the plaintiffs on a pro rata
The parties have also agreed that plaintiff's counsel
will receive one-third of the settlement proceeds as a fee.
The amounts claimed by each of the plaintiffs, 1 the gross amount
of the settlement fund allocable to each plaintiff and the net
amount that will be received by each plaintiff after deduction of
The amounts claimed by each of the plaintiffs include the
allegedly unpaid wages and overtime, allegedly unpaid spread-ofhours pay, liquidated damages and statutory damages for alleged
violations of New York's Wage Theft Prevention Act.
one-third for legal fees and each plaintiff's allocable share of
costs are as follows:
I held a lengthy settlement conference on October 5,
2016 that was attended by most of the principals and their
After a lengthy discussion of the strengths and weak-
nesses of the parties' respective positions, the parties agreed
to resolve the matter on the terms set forth above.
allocation of the settlement proceeds among the plaintiffs was
not discussed at the settlement conference, plaintiff's counsel
With regards to the allocation of the settlement amount
as between [sic] each Plaintiff, Plaintiffs counsel has
met with each one of the clients on multiple occasions
to verify dates of employment, individual rate of pay,
pay rate changes during Plaintiffs' employment, minimum
wage rates for each year of Plaintiffs [sic] employment, liquidated damages amounts collectible pre and
post passage of the New York Wage Theft Prevention Act
and number of days per [week] which each Plaintiff
worked more than ten hours per day.
Plaintiffs have been made fully aware of the terms of
the settlement agreement and the award that each Plaintiff will receive and all have agreed to said amounts.
(Letter from Brett M. Schatz, Esq, to the undersigned, dated
November 30, 2016 (Docket Item ("D.I. ") 52) at 3-4).
I refused to approve an earlier of the draft of the
settlement agreement because it contained a general release that
ran only in favor of defendants, a confidentiality provision and
an overly broad non-disparagement clause (D.I. 53).
version of the settlement agreement currently before me resolves
those issues; plaintiffs are releasing only those claims that
were brought or could have been brought in this action and the
confidentiality and non-disparagement provisions have been
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)
"Generally, there is a
strong presumption in favor of finding a settlement fair,
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
(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.
The presumption of fairness in this case is bolstered by
the caliber of the parties' attorneys.
Based upon their pre-
conference submissions and their performance at the settlement
conference and in subsequent discussions concerning how the
settlement should be reported to the Internal Revenue Service, it
is clear to me that all parties are represented by counsel who
are extremely knowledgeable regarding all issues in the case 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
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.
Although the settlement represents less than one-third
of plaintiffs' total claimed damages, the defendants' documentary
evidence is substantial and persuasive.
Given the evidence
reviewed at the settlement conference, it is not inconceivable
that the trial of this matter could result in a defendants'
Second, the settlement will entirely avoid the burden,
expense and aggravation of litigation.
entirely on their oral testimony.
Plaintiffs' case rests
Trial preparation would
require several depositions to explore these issues.
ment avoids the necessity of conducting these depositions.
Third, the settlement will enable plaintiff to avoid
the risk of litigation.
The plaintiffs here were paid on the
books, at least some overtime was paid to some plaintiffs and
defendants' remaining documentary evidence is substantial.
noted above, whether all plaintiffs would recover at trial is far
See Bodon v. Domino's Pizza, LLC, No. 09-CV-2941,
2015 WL 588656 at *6 (E.D.N.Y. Jan. 16, 2015)
("the question .
. is not whether the settlement represents the highest recovery
. but whether it represents a reasonable one in
light of the many uncertainties the class faces."
fairness of class action settlement)); Massiah v. MetroPlus
Health Plan, Inc., No. 11-CV-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 .
quotations omitted; assessing fairness of class action settlement)) .
Fourth, because I presided over the settlement conference at which the settlement was reached, I know that the settlement is the product of arm's-length bargaining between experienced counsel.
Both counsel represented their clients zealously
at the settlement conference.
Fifth, there are no factors here that suggest the
existence of fraud.
before the Court.
The settlement was reached after a mediation
This fact further negates the possibility of
fraud or collusion.
The settlement agreement also provides that, after
deduction of out-of pocket costs, one-third of the settlement
fund will be paid to plaintiff's counsel as a contingency fee.
Contingency fees of one-third in FLSA cases are routinely approved in this Circuit.
15 Civ. 814
Santos v. EL Tepeyac Butcher Shop Inc.,
(RA), 2015 WL 9077172 at *3
(S.D.N.Y. Dec. 15, 2015)
("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
*1 (E.D.N.Y. Sept. 19, 2013)
(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 the courts in this Cir8
cuit 11 ) ; Febus v. Guardian First Funding Group, LLC, 870 F. Supp.
("a fee that is
one-third of the fund is typical 11 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)
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.
of the Court is requested to mark this matter closed.
New York, New York
March 3, 2017
United States Magistrate Judge
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