Castillo Ortiz et al v. My Bellys Playlist LLC et al
OPINION AND ORDER re: 36 SETTLEMENT AGREEMENT. This matter is before me on the parties' joint application to approve their settlement (Docket Item ("D.I.") 36). Accordingly, within 30 days of the date of this Order, the parties are to provide the information sought and a revised settlement agreement that eliminates the foregoing issues, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 10/16/2017) Copies Transmitted By Chambers. (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRANQUILINO ORTIZ, et al.,
16 Civ. 2924
-againstMY BELLY'S PLAYLIST LLC, et. al.,
PITMAN, United States Magistrate Judge:
This matter is before me on the parties'
ti on to approve their settlement (Docket Item ( 11 D. I.
3 6) .
parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c)
This is an action brought
under the Fair Labor Stan-
FLSA 11 ) , 29 U.S.C. §§ 201 et
provisions of the New York Labor Law (the
NYLL 11 )
individuals, who were employed as delivery workers at one of
defendants' two sandwich shops/catering services.
The action was
commenced on April 20, 2016 as a collective action with respect
to the FLSA claim.
The parties reached a settlement agreement
prior to the matter being conditionally certified as a collective
action, and they now seek approval of their proposed settlement
(Letter of Gerald A. Ellis, Esq. to the undersigned, dated
December 16, 2016 (D. I. 36) ("Ellis Letter")).
approve the settlement at this time.
First, the parties have not
provided sufficient information to enable me to determine whether
the proposed settlement is fair and reasonable.
parties have indicated that plaintiffs will receive a total net
settlement of $13,400, they fail to explain how that amount will
be allocated among plaintiffs or the basis for the allocation.
This is particularly significant here because each plaintiff
claims damages in a different amount and the settlement proceeds
must be allocated in a rational manner.
Additionally, Sections 3 and 7 (a),
(b) of the proposed
settlement agreement purport to release "all claims referred to
or identified in the various correspondence, pleadings, etc. to
and between the parties' respective law firms" and "all claims
referred to or identified in the various correspondence, to and
between the parties leading up to this Agreement," respectively.
This language fails to define the claims being released in any
Third, the settlement agreement has two impermissible
(1) an understanding by the plaintiff not to partic-
ipate or assist in any other wage and hour litigation against
defendant and (2) an agreement by plaintiffs never to seek reemployment with defendant
(Ellis Letter, Ex. 1
Both of these provisions conflict with the FLSA's "primary
to prevent abuses by unscrupulous employers,
and remedy the disparate bargaining power between employers and
Cheeks v. Freeport Pancake House Inc., supra, 796
F.3d at 207; see Fu v. Mee May Corp., 15 Civ. 4549
2172910 at *2
(S.D.N.Y. Mar. 31, 2017)
(HBP), 2017 WL
(Pitman, M.J.) (striking
down a similar provision prohibiting plaintiffs from assisting in
any action against defendants because it conflicted with the
"remedial purpose" of the FLSA); Baikin v. Leader Sheet Metal,
Inc., 16 Civ. 8194
(ER), 2017 WL 1025991 at *1 (S.D.N.Y. Mar. 13,
(striking down a similar provision barring
plaintiffs from ever working, or applying to work, for defendants
because it was in direct conflict with FLSA's remedial purpose).
Accordingly, within 30 days of the date of this Order,
the parties are to provide the information sought and a revised
settlement agreement that eliminates the foregoing issues. 1
New York, New York
October 16, 2017
United States Magistrate Judge
Copies transmitted to:
If the proposed settlement agreement were otherwise
compliant with the law, I could simply strike the offensive
The agreement provides that "if any provision, or
portion thereof, of this Agreement is, or becomes, invalid under
any applicable statute or rule of law, it is to be deemed
stricken and the rest of this Agreement shall remain in full
force and effect" (Ellis Letter, Ex. 1 'II 15) .
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