Park v. FDM Group Inc. et al

Filing 370

ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT, APPROVAL OF THE FLSA SETTLEMENT AND APPROVAL OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES granting 363 Motion for Settlement; granting 366 Motion for Attorney Fees. For purposes of this Order and Final Judgment, the Court adopts and incorporates the definitions as set forth in the Settlement Agreement executed by the Parties and filed with this Court...Though the Court retains jurisdiction over this action for the purpose of enforcing the Settlement Agreement, the judgment is a Final Judgment in accordance with the Settlement Agreement. The parties shall abide by all terms of the Settlement Agreement and this Order, and as further set forth herein. (Signed by Magistrate Judge Sarah Netburn on 1/22/2021) (ras)

Case 1:16-cv-01520-LTS-SN Document 370 Filed 01/22/21 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GRACE PARK, individually and on behalf
of all others similarly situated, et al.,
Plaintiffs,
vs.

01/22/2021

Civil Action No. 16-CV-1520 (LTS)(SN)
Hon. Sarah Netburn

FDM GROUP, INC.
Defendant.
ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL
OF THE CLASS ACTION SETTLEMENT, APPROVAL OF THE FLSA SETTLEMENT
AND APPROVAL OF ATTORNEYS’ FEES AND
REIMBURSEMENT OF EXPENSES
This matter came before the Court on the application of the Plaintiffs for final approval
of the settlement between Plaintiffs and Defendant FDM Group, Inc., as set forth in the Settlement
Agreement (the “Settlement,” or “Settlement Agreement”) preliminarily approved by this Court
on September 8, 2020. The Court, having held a Final Fairness Hearing on January 19, 2021, and
having considered all papers filed and proceedings had herein, and otherwise being fully informed
of the premises, and good cause appearing therefore, on this 19th day of January, 2021,
IT IS HEREBY ORDERED THAT:
1.

For purposes of this Order and Final Judgment, the Court adopts and incorporates

the definitions as set forth in the Settlement Agreement executed by the Parties and filed with
this Court.
2.

This Court hereby approves the settlement set forth in the Settlement Agreement

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and finds that the settlement is, in all respects, fair, reasonable, adequate and in the best interests
of the Class Members in accordance with Fed. R. Civ. P. 23(e) and 29 U.S.C. § 216. This
Settlement Agreement is the product of arm’s-length settlement negotiations.
3.

The Court finds that the Notices fairly and adequately advised Class Members and

of the nature of the action, a description of the Class and Collective Action, the Class Members’
right to exclude themselves from the settlement, the right of Class Members to object to the
settlement, the right of Class Members and Collective Members to be represented by their own
counsel, and the right of Class and Collective Members to appear at the Final Fairness Hearing.
Class and Collective Members were provided the best notice practicable under the circumstances.
The Court further finds that the Notices and distribution of such Notices complied fully with Fed.
R. Civ. P. 23, the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., the United States
Constitution, and any other applicable laws, as appropriate.
4.

No Class Members objected to the Settlement and only three (3) Class Members

submitted a request for exclusion from the Settlement by submitting an Opt-Out Statement. As
such, almost 99% of the Class Members who received the Notice are participating in the
Settlement.
5.

The Court hereby grants Plaintiffs’ Counsels’ Motion for Attorneys’ Fees and

awards Class Counsel’s Firm a total of one million three hundred and seventy-eight thousand three
hundred and thirty-three dollars and thirty-three cents ($1,378,333.33) or one-third of the Gross
Settlement Fund. See Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir. 2007)
(holding that “[t]he entire Fund, and not some portion thereof, is created through the efforts of
counsel at the instigation of the entire class” and thus fees should be allocated based on “total funds
made available, whether claimed or not”); see also In re Nassau Cnty. Strip Search Cases, 12 F.

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Supp. 3d 485, 492–93 (E.D.N.Y. 2014) (noting “that the percentage is applied to the total amount
recovered on behalf of the class (i.e. the ‘common fund’), not to the lesser sum that in all
probability will be claimed by members of the class from that fund”); In re Nigeria Charter Flights
Litig., No. 04-CV-304, 2011 WL 7945548, at *5 (E.D.N.Y. Aug. 25, 2011) (holding that
controlling Second Circuit precedent set forth in Masters requires the percentage of the common
fund be based on the entire fund not the value of claims made), report and recommendation
adopted, No. 04-CV-304, 2012 WL 1886352 (E.D.N.Y. May 23, 2012); Alleyne v. Time Moving
& Storage Inc., 264 F.R.D. 41, 59 (E.D.N.Y. 2010).
6.

The Court further finds that the amount of fees requested is fair and reasonable

using the “percentage-of-recovery” method, which is consistent with the “trend in this Circuit.”
McDaniel v. Cty. Of Schenectady, 595 F.3d 411, 417 (2d Cir. 2010); see Diaz v. E. Locating Serv.,
No. 10 Civ. 4082, 2010 WL 5507912, at *7-8 (S.D.N.Y. Nov. 29, 2010) (following percentageof-the-fund method); deMunecas v. Bold Food, LLC, No. 09 Civ. 00440, 2010 WL 3322580, at *
8-9 (Aug. 23, 2010 S.D.N.Y.) (same); Clark v. EcoLab Inc., 2010 WL 1948198, at *8-9 (S.D.N.Y.
May 11, 2010) (same); Reyes v. Buddha-Bar NYC, No. 08 Civ. 2494, 2009 WL 5841177, at *4
(S.D.N.Y. May 28, 2009) (same); Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini, 258 F.
Supp. 2d 254, 261-62 (S.D.N.Y. 2003) (collecting cases adopting the percentage-of-the-fund
method); In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 483-85 (S.D.N.Y. 1998)
(same).
7.

The Court awards Service Payments to be paid out of the Gross Settlement Fund as

follows: twenty thousand dollars ($20,000) to Grace Park, ten thousand dollars ($10,000) to
Oronde Bell, and fifteen hundred dollars ($1,500) to Daniel Ferguson, Steve Coupet, Philip Zeiss,
Selenny Luna, Rui Lin, Milosz Kowal, Anthony Ross, Elton Dakaj, Joseph Gaglione, Mario

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Alexandre, Philip Kim, Tia Mosobbir, John Campagna, Choudhury Ahmed, Kishan Patel, Jeremy
Moulton, Ramin Shirvani, Matin Babaez, and Lawrence Leo.

These Service Awards are

reasonable and are awared in recognition of the services they each rendered on behalf of the Class
and allocated in accordance with the level of involvement of each of the above referenced
individuals.
8.

The Court approves an amount not to exceed one hundred and twenty thousand

dollars ($120,000) to be paid from the Gross Settlement Fund for costs and expenses incurred by
Class Counsel in litigating this matter.
9.

The Court approves an amount not to exceed twenty-five thousand one hundred

and eighty-eight dollars ($25,188) to be paid from the Gross Settlement Fund for the costs and
expenses incurred by the Claims Administrator, RG/2 Claims Administration.
10.

This action shall be and hereby is dismissed on the merits with prejudice. All

Participating Class Members, meaning all Rule 23 Class Members except the three (3) Class
Members who requested to be excluded, are hereby permanently barred from prosecuting against
the Released Parties (as defined in the Settlement Agreement at Section 1.32) any and all Released
State Law Claims including but not limited to those claims previously dismissed in the Litigation,
as set forth in Section 5.1(A) of the Settlement Agreement.
11.

In addition, the Named Plaintiff, Lead Plaintiffs, and all Opt-in Plaintiffs, including

all Participating Class Members who endorse their Initial Settlement Distribution Checks and/or
Subsequent Settlement Distribution Checks shall release both the Released State Law Claims and
the Released Federal Law Claims, and are permanently barred from prosecuting against the
Released Parties any and all Released State Law Claims and Released Federal Law Claims

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including but not limited to those claims previously dismissed in the Litigation, as set forth in
Section 5.1(B) of the Settlement Agreement.
12.

Additionally, the Class Representatives and Plaintiffs receiving a Service Award

shall additionally release the Released Parties from all claims relating to their employment or
termination of employment from Defendant, any contract (express or implied), any claim for
equitable relief or recovery of punitive, compensatory, or other damages or monies (including
claims as to taxes), attorneys’ fees, any tort, and all claims arising under federal, state or local
laws, rules or regulations as set forth in Section 5.1(C) of the Settlement Agreement.
13.

Though the Court retains jurisdiction over this action for the purpose of enforcing

the Settlement Agreement, the judgment is a Final Judgment in accordance with the Settlement
Agreement. The parties shall abide by all terms of the Settlement Agreement and this Order.
SO ORDERED.
Dated: January 22, 2021
New York, New York

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