Jian et al v. Saigon Bar & Grill LLC et al
Filing
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OPINION AND ORDER: For the foregoing reasons, the Court approves the parties' proposed settlement agreement as fair and reasonable. IT IS HEREBY ORDERED THAT this action is dismissed with prejudice and without costs provided, however, that the Court retains jurisdiction pursuant to the terms of the settlement agreement. Any pending motions are to be terminated as moot and all conferences are cancelled. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 10/10/2018) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SHAO XIONG JIAN,
Plaintiff,
-againstSAIGON BAR & GRILL, et al.,
Defendants.
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16-CV-5556 (OTW)
OPINION AND ORDER
ONA T. WANG, United States Magistrate Judge:
Plaintiff brings this action in accordance with the Fair Labor Standards Act (“FLSA”) and
New York Labor Law (“NYLL”), for allegedly unpaid overtime premium pay and for Defendants’
alleged failure to provide certain notices required by the NYLL. Following a successful
mediation before the Court-annexed Mediation Program, the parties submitted their
settlement agreement to this Court for approval under Cheeks v. Freeport Pancake House, Inc.,
796 F.3d 199 (2d Cir. 2015). (See ECF 84). All parties have consented to my exercising plenary
jurisdiction in accordance with 28 U.S.C. § 636(c). (ECF 80). For the reasons set forth below, the
Court approves the agreement as fair and reasonable.
I.
Background
Plaintiff alleges that he worked as a cook in Defendants’ restaurant from November
2010 until December 22, 2013, and again from November 24, 2014 until June 25, 2016. Plaintiff
alleges that from November 24, 2014 through June 25, 2016, he worked, on average, fifty-one
and one-half hours per week, but that Defendants paid him a fixed daily rate of $130,
regardless of the number of hours worked.
Defendants deny Plaintiff’s allegations. They assert that they would call witnesses and
present objective, documentary evidence at trial that would show that Plaintiff did not work as
many hours as he claims.
Plaintiff alleges that he is owed $26,870.71 for his FLSA claims, his unpaid wages, and
overtime premiums. The parties have agreed to resolve the matter for $15,000, inclusive of
attorneys’ fees and costs, as set forth in the settlement agreement. Plaintiff would receive
$9,460 and Plaintiff’s counsel would receive $5,540 in fees, representing one-third of the
settlement amount and $810 in costs, in accordance with Plaintiff’s professional servicescontingency fee agreement with his counsel.
The parties reached their proposed settlement during a mediation session held on
January 29, 2018, which was attended by their parties and their counsel. The parties then
submitted a joint letter seeking approval of their settlement agreement, explaining in detail the
parties’ positions, with a description of the method used to calculate the settlement amounts
and an explanation of the hours Plaintiff worked and the wage at which he worked them. (ECF
84).
II.
Discussion
Fed. R. Civ. P. 41(a)(1)(A) permits the voluntary dismissal of an action brought in federal
court, but subjects that grant of permission to the limitations imposed by “any applicable
federal statute.” The United States Court of Appeals for the Second Circuit has held that, “in
light of the unique policy considerations underlying the FLSA,” this statute falls within that
exception, and that “stipulated dismissals settling FLSA claims with prejudice require the
approval of the district court or the [Department of Labor] to take effect.” Cheeks, 796 F.3d at
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206. This Court will approve such a settlement if it finds it to be fair and reasonable, employing
the five non-exhaustive factors enumerated in Wolinsky v. Scholastic Inc.:
(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.
900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (internal quotations omitted). In this case, each of
those factors favor approval of the settlement.
a. Range of Recovery
First, the settlement awards Plaintiff with approximately 35% of Plaintiff’s asserted
unpaid wages calculation. Given the risks of litigation, as discussed in more detail below, the
settlement amount is reasonable.
b. Burden and Expense of Trial
Second, the settlement enables the parties to avoid the burden and expense of
presenting their credibility-dependent case to a factfinder and being subject to crossexamination at trial. The parties dispute the number of hours worked by Plaintiff and dispute
whether or not the proper legal notices were given to Plaintiff. Because the parties dispute the
validity of the records of Plaintiff’s hours, the parties would have to rely on their own
recollections and the recollections of others to prove how many hours Plaintiff worked. See
Yunda v. SAFI-G, Inc., 15-CV-8861, 2017 WL 1608898, at *3 (S.D.N.Y. Apr. 28, 2017).
c. Litigation Risk
Third, the settlement will enable the Plaintiff to avoid the risks of litigation. Plaintiff
faces the risk that a factfinder may credit Defendants’ witnesses’ testimony that Plaintiff did
not work as many hours as he claims. Thus, whether and how much he would recover at trial is
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uncertain. See McMahon v Olivier Cheng Catering and Events, LLC, 08-CV-8713, 2010 WL
2399328, at *5 (S.D.N.Y. Mar. 3, 2010).
d. Arm’s-Length Negotiation
Fourth, this settlement was reached after participation in the Court-annexed Mediation
Program, during a mediation before the Court-appointed mediator, and therefore, the
settlement is the product of arm’s-length bargaining between experienced counsel.
e. Risk of Fraud or Collusion
Fifth, there is nothing in this record to suggest that the settlement was the product of
fraud or collusion. The fact that it was reached after a mediation before a Court-appointed
mediator reinforces the settlement’s legitimacy. See Gonzales v 27 W.H. Bake, LLC, 15-CV-4161,
2018 WL 1918623, at *3 (S.D.N.Y. Apr. 20, 2018); Khait v. Whirlpool Corp., 06-CV-6381, 2009 WL
6490085, at *1 (E.D.N.Y. Oct. 1, 2009).
Additional features of the settlement favor approval. The release is limited to claims
based on Plaintiff’s employment up to the date the agreement was signed, and is not
overbroad. See Caprile v. Harabel Inc., 14-CV-6386, 2015 WL 5581568, at *2 (S.D.N.Y. Sept. 16,
2015). The attorneys’ fee award of one-third of the settlement sum is reasonable and in
keeping with typical FLSA settlements in this district. See Rodriguez-Hernandez v. K Bread & Co.,
15-CV-6848, 2017 WL 2266874, at *5 (S.D.N.Y. May 23, 2017) (“In this Circuit, courts typically
approve attorneys' fees that range between 30 and 33 1/3 %.”)
Finally, this agreement also lacks certain objectionable provisions that have doomed
other proposed FLSA settlements. For instance, it contains no confidentiality provision, which
would contravene the purposes of the FLSA—indeed, the document has already been publicly
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filed, and it does not include a restrictive non-disparagement provision. See Martinez v.
Gulluoglu LLC, 15-CV-2727, 2016 WL 206474, at *1 (S.D.N.Y. Jan. 15, 2016); Lazaro-Garcia v.
Sengupta Food Servs., 15-CV-4259, 2015 WL 9162701, at *3 (S.D.N.Y. Dec. 15, 2015).
III.
Conclusion
For the foregoing reasons, the Court approves the parties’ proposed settlement
agreement as fair and reasonable.
IT IS HEREBY ORDERED THAT this action is dismissed with prejudice and without costs
provided, however, that the Court retains jurisdiction pursuant to the terms of the settlement
agreement. Any pending motions are to be terminated as moot and all conferences are
cancelled.
SO ORDERED.
s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge
Dated: October 10, 2018
New York, New York
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