Geskina v. Admore Air Conditioning Corp. et al

Filing 20

OPINION AND ORDER re: 19 FIRST MOTION to Approve FLSA Settlement filed by Admore Air Conditioning Corp. Accordingly, for all the foregoing reasons, I cannot approve the settlement at this time. Within 30 days of the date of this Ord er, the parties are either to file their settlement agreement, unredacted and without the confidentiality provision, on the public docket, or to file a letter indicating their intention to abandon the settlement and proceed with litigation. (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 3/28/2017) Copies Sent By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDCSDNY
DOCUMENT
ELECTRONICALLY FitED
DOC#:

DATEFILED: ~ t~l?f({;.
16 Civ. 3096 (HBP)

Plaintiff,
OPINION
AND ORDER

-againstADMORE AIR CONDITIONING
CORP. , et al.,
Defendants.

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PITMAN, United States Magistrate Judge:

This matter is before me on the parties' joint applicati on to approve their settlement (Docket Item ( 11 D. I.

11

)

19) .

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 therefore, my knowledge of the underlying facts and the justification for the
settlement is limited to the complaint and counsels' representations in their motion seeking settlement approval.

Plaintiff

formerly worked for Admore Air Conditioning Corporation ( 11 Admore11

)

as a bookkeeper and in general administration and seeks, by

this action, to recover unpaid overtime premium pay and spreadof-hours pay.

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a.s.i,..,.1~~·un.1,·~~....,1

l!I

LARISA GESKINA,

f

The action is brought under the Fair Labor Stan-

dards Act (the "FLSA"), 28 U.S.C. §§ 201 et
York Labor Law.

§.Sill.,

and the New

She also asserts a claim based on defendants'

alleged failure to maintain certain payroll records.
Plaintiff alleges that she was employed as a bookkeeper
of Admore from April 7, 2014 until her termination in January
2016.

Plaintiff claims that between April 2014 and May 2015, she

worked at least 572 hours of overtime without compensation.

She

claims that during that period, her salary was $90,000.00; her
regular hourly rate was $49.45 and her overtime rate was $74.17.
Between June 2015 and her termination, plaintiff claims she
worked at least 308 hours of overtime without compensation.
Plaintiff claims that during this later period, her salary was
$95,000.00; her regular hourly rate was $52.19 and her overtime
rate was $78.29.

Exclusive of liquidated or statutory damages,

plaintiff claims that she is owed at least $67,000.00 in unpaid
overtime.

Defendants believe plaintiff is exempt from federal

and state overtime requirements and is not, therefore, entitled
to recover any damages for allegedly unpaid overtime premium pay.
The parties have agreed to settle the matter, though
they want the total settlement amount to remain confidential.
this end, they have filed the proposed settlement on the public

2

To

docket with the total settlement amount redacted 1 and have requested in an in camera submission that they not be required to
disclose the settlement amount publicly.

Alternatively, they

wish to file an unredacted settlement under seal.

The settlement

agreement also contains a confidentiality clause prohibiting
disclosure of the total settlement amount except to specified
people or authorities if required by law or court order.

Def en-

dants want this information to be confidential because of the
"substantial monetary amounts expended in settlement" and because
of fear of copycat lawsuits, inquiries from customers and potential customers and allegations from competitors regarding defendants' business and employment practices (Unopposed Motion for
Approval of FLSA Settlement, dated Oct. 28, 2016 (D.I. 19)
("Motion for Approval") , at 12) .
"Under the common law right to access, a presumption of
public access attaches to any 'judicial document'
Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 337
2 0 12 )

( Furman, D . J . ) .

"
(S.D.N.Y.

Because FLSA settlements need to be

approved by a court, they are "judicial documents," to which a

1

The portion of the total settlement allocated to overtime
wages and other damages is not redacted; the portion allocated as
consideration for plaintiff's release of claims is redacted.
Additionally, the portion allocated to attorneys' fees and costs
is redacted.
3

presumption of public access applies.

Lopez v.

41-06 Bell Blvd.

Bakery LLC, No. 15-CV-6953 (SJ) (PK), 2016 WL 6156199 at *2
(E.D.N.Y. Oct. 3, 2016)
2016 WL 6208481
Cabiria, LLC,

(Report

&

Recommendation), adopted .Qy,

(E.D.N.Y. Oct. 21, 2016); Lopez v. Nights of

96 F. Supp. 3d 170, 178

(S.D.N.Y. 2015)

D.J.); Files v. Federated Payment Sys. USA,
(JS) (GRB), 2013 WL 1874602 at *1

(Kaplan,

Inc., No. 11-CV-3437

(E.D.N.Y. Apr. 2, 2013); Wolins-

ky v. Scholastic, Inc., supra, 900 F. Supp. 2d at 337-38; Curasi
v. Hub Enters., Inc., No. ll-CV-2620
*l (E.D.N.Y. Mar. 5, 2012).

(JS) (GRB), 2012 WL 728491 at

"To overcome the presumption, the

parties must make a substantial showing of need for the terms of
their settlement not to be filed on the public docket."

Curasi

v. Hub Enters., Inc., supra, 2012 WL 728491 at *l (internal
quotation marks omitted); accord Lopez v. 41-06 Bell Blvd. Bakery
LLC, supra, 2016 WL 6156199 at *2

("A judicially approved FLSA

settlement agreement should not be filed under seal, except in
the very limited circumstance where parties can make a substantial showing that their need to seal the agreement outweighs the
strong presumption of public access that attaches to such judicial documents."

(internal quotation marks omitted)).

The parties have not overcome the presumption of public
access to their FLSA settlement.

Indeed, the same arguments

defendants advance here in support of keeping the total settle4

ment amount confidential have been rejected because "[a] business's general interest in keeping its legal proceedings private
does not overcome the presumption of openness."

Curasi v. Hub

Enters., Inc., supra, 2012 WL 728491 at *2 (alteration in original; internal quotation marks omitted); see Camacho v. Ess-ABagel, Inc., 14 Civ. 2592 (LAK), 2015 WL 129723 at *3 (S.D.N.Y.
Jan. 9, 2015)

(Kaplan, D.J.)

("[F]ear of copycat lawsuits or

embarrassing inquiries does not suffice to defeat" Congress's
intent "both to advance employees' awareness of their FLSA rights
and to ensure pervasive implementation of the FLSA in the workplace .

It is difficult to imagine a scenario in which the

parties' interest in non-disclosure trumps these congressional
purposes."

(brackets in original; internal quotation marks

omitted)); Wolinsky v. Scholastic, Inc., supra, 900 F. Supp. 2d
at 339 ("Against [Congress's] interests, the fear that disclosure
will prompt additional litigation or embarrassment is too speculative and insufficient to justify sealing."
marks omitted)).

(internal quotation

Thus, "[t]he overwhelming majority of courts

reject the proposition that FLSA settlement agreements can be
confidential."

Armenta v. Dirty Bird Grp., LLC, 13 Civ. 4603

(WHP), 2014 WL 3344287 at *2 (S.D.N.Y. June 27, 2014)

(Pauley,

D.J.); accord Figueroa v. Rovini Concrete Corp., 15 Civ. 8058
(RLE), 2017 WL 462310 at *l (S.D.N.Y. Jan. 18, 2017)
5

(Ellis,

M.J.); Lopez v. Nights of Cabiria, LLC, supra, 96 F. Supp. 3d at
177; see also,

~.g.,

Lopez v. 41-06 Bell Blvd. Bakery LLC, supra,

2016 WL 6156199 at *2-*3; Thallapaka v. Sheridan Hotel Assocs.
LLC, 15 Civ. 1321 (WHP), 2015 WL 5148867 at *1 (S.D.N.Y. Aug. 17,
2015)

(Pauley, D.J.); Files v. Federated Payment Sys. USA, Inc.,

supra, 2013 WL 1874602 at *3; Wolinsky v. Scholastic, Inc.,
supra,

900 F. Supp. 2d at 340; Curasi v. Hub Enters., Inc.,

supra, 2012 WL 728491 at *2-*3 ("[T]he public has a substantial
interest in the amount of settlement, and the presumption against
disclosure of such information is not easily overcome
Bouzzi v. F & J Pine Rest., No. 10 CV 457
at *2-*3 (E.D.N.Y. Sept. 23, 2011)

• II )

(DLI), 2011 WL 7004196

(Report & Recommendation)

("When the amounts recovered by the plaintiffs, and the amount
paid in attorney's fees, are redacted, the public is in no
position to evaluate the Court's conclusion as to fairness nor
can the public assess whether the rights sought to be protected
by the FLSA are furthered by the settlement .

. When courts

are faced with the choice between public access to FLSA settlement agreements and fostering settlement generally, courts have
routinely chosen to prioritize public access."), adopted sub
nom., Bouzzi v. F & J Pine Rest., LLC, 841 F. Supp. 2d 635
(E.D.N.Y. 2012).

Therefore, the parties' settlement agreement

must be filed on the public docket in unredacted form and the
6

;

settlement agreement's confidentiality clause, although narrow,
is impermissible. 2

See Hyun v. Ippudo USA Holdings, supra, 2016

WL 1222347 at *3 (provision requiring collective members to keep
aggregate settlement amount confidential was impermissible
because amount appeared on public docket); Camacho v. Ess-ABagel, Inc., supra, 2015 WL 129723 at *1-*2 (provision requiring
parties to respond to inquiries about lawsuit with "[t]he Parties' dispute has been amicably resolved" amounted to a "gag
order" and was impermissible) .
Accordingly, for all the foregoing reasons, I cannot
approve the settlement at this time.

Within 30 days of the date

of this Order, the parties are either to file their settlement

2

The agreement provides that "[i]n the event a portion of
this Agreement is held to be legally invalid by a competent court
of law, the invalid portion shall be stricken and all other
obligations shall remain valid and mutually binding on the
parties and not be affected thereby" (Motion for Approval, Ex. 1
~ VI(D)).
As a result, the confidentiality provision, by itself,
does not require me to withhold approval of the settlement
agreement as a whole.
See Hyun v. Ippudo USA Holdings, 14 Civ.
8706 (AJN), 2016 WL 1222347 at *3 (S.D.N.Y. Mar. 24, 2016)
(Nathan, D. J.) .
7

agreement, unredacted and without the confidentiality provision,
on the public docket, or to file a letter indicating their
intention to abandon the settlement and proceed with litigation.
Dated:

New York, New York
March 28, 2017
SO ORDERED

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

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