Monroy-Gill v. Fresco News Incorporated et al

Filing 94

ORDER Granting Plaintiffs' Motion for Preliminary Approval of Settlement, Certification of the Settlement Class, Approval of Plaintiffs' Proposed Notice of Settlement and Class Action Procedure; and Motion for Approval of FLSA Settlement Pu rsuant to Cheeks granting 91 Motion to Certify Class; granting 91 Motion for Settlement; granting 91 Motion to Approve. The Court provisionally certifies the following class under Fed. R. Civ. P. 23(e), for settlement purposes ("Set tlement Class"): all individuals who worked at Fresco at any time from May 1, 2017 to July 1, 2017 and was not one of the Defendants or among the company executives. The Court hereby approves the settlement procedure as set forth in the Settle ment Agreement. The Court will hold a final fairness hearing on Monday, April 27, 2020, 2:00 p.m. at the United States District Court for the Southern District of New York, 40 Foley Square, New York, New York, Courtroom 219. The parties shall abide by all other terms of the Settlement Agreement. (Signed by Magistrate Judge Sarah Netburn on 2/20/2020) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

02/20/2020

KEANA MONROY-GILL, CHRISTOPHER SCOTT
MULLEN, ERIK WASHINGTON, GUSTAVO LEAL,
ISMAIL IBRAHIM, KATARINA SCHULZ, ELIZABETH
LIZZY FRANCIS, MARIO DUNDAS, OMAR ELFANEK,
STEPHEN STRAUB, S. JAMAL STONE, WILLIAM
MARTIN III, CENITHIA BILAL, KELSIE BLAZIER,
SOLOMON OLORUNTOSI and ROBERT BELPASSO,
on behalf of themselves and others similarly
situated,
Plaintiffs,
v.

Case No. 1:17-cv-06743

FRESCO NEWS INCORPORATED d/b/a Fresco,
JOHN MEYER, an individual,
JONATHAN HAMITER, an individual,
JEREMY OGOREK, an individual, and
MORGAN BOYER, an individual,
Defendants.

ORDER
Granting Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of the Settlement Class,
Approval of Plaintiffs’ Proposed Notice of Settlement and Class Action Procedure; and
Motion for Approval of FLSA Settlement Pursuant to Cheeks
The above-entitled matter came before the Court on Plaintiffs’ Motion for Preliminary
Approval of Settlement, Conditional Certification of the Settlement Class, Appointment of
AndersonDodson, P.C. (“AndersonDodson”) as Class Counsel, and Approval of Plaintiffs’
Proposed Notice of Settlement and Class Action Settlement Procedure (“Motion for Preliminary
Approval”).

PRELIMINARY APPROVAL OF SETTLEMENT
1. Based upon the Court’s review of the Plaintiffs’ Memorandum of Law in Support of
Plaintiffs’ Motion for Preliminary Approval of Settlement, and all other papers submitted
in connection with Plaintiffs’ Motion for Preliminary Approval, the Court grants
preliminary approval of the settlement memorialized in the Joint Settlement and Release
(“Settlement Agreement”), attached thereto.
2. The Court concludes that the proposed Settlement Agreement is within the range of
possible settlement approval, such that notice to the Class is appropriate. See In re Traffic
Exec. Ass’n, 627 F.2d 631, 634 (2d Cir. 1980); Danieli v. IBM, No. 08 Civ. 3688, 2009
U.S. Dist. LEXIS 106938, at *12-13 (S.D.N.Y. Nov. 16, 2009) (granting preliminary
approval where settlement “has no obvious defects” and proposed allocation plan is
“rationally related to the relative strengths and weaknesses of the respective claims
asserted”).
3. The Court finds that the Settlement Agreement is the result of extensive, arm’s length
negotiations by counsel well-versed in the prosecution of wage and hour class and
collective actions.
4. The Settlement is also fair and reasonable. It meets the standards for approval of settlement
involving Fair Labor Standards Act claims as set forth in Cheeks v. Freeport Pancake House,
Inc., 796 F.3d 199 (2d Cir. 2015),
CERTIFICATION OF THE PROPOSED RULE 23 SETTLEMENT CLASS
5. The Court provisionally certifies the following class under Fed. R. Civ. P. 23(e), for
settlement purposes (“Settlement Class”): all individuals who worked at Fresco at any time
from May 1, 2017 to July 1, 2017 and was not one of the Defendants or among the company
executives.
6. Plaintiffs meet all of the requirements for class certification under Fed. R. Civ. P. 23(a) and
(b)(3).
7. Plaintiffs satisfy Fed. R. Civ. P. 23(a)(1) because there are enough Class Members that
joinder is impracticable.
8. Plaintiffs satisfy Fed. R. Civ. P. 23(a)(2) because Plaintiffs and the class members share
common issues of fact and law, including whether Defendants paid Fresco employees for
all of their owed wages.
9. Plaintiffs satisfy Fed. R. Civ. P. 23(a)(3) because Plaintiffs’ claims arise from the same
factual and legal circumstances that form the bases of the class members’ claims. See Asia
Five Eight LLC, 2009 U.S. Dist. LEXIS 88163, at *4; AMF Bowling Ctrs., Inc., 2009 U.S.
Dist. LEXIS 85954, at *4-5; Buddha-Bar NYC, 2009 U.S. Dist. LEXIS 45277, at *6;
Mohney, 2009 U.S. Dist. LEXIS 27899, at *10-11.

10. Plaintiffs satisfy Fed. R. Civ. P. 23(a)(4) because Plaintiffs’ interests are not antagonistic
or at odds with class members, see Toure v. Cent. Parking Sys., No. 05 Civ. 5237, 2007
U.S. Dist. LEXIS 74056, at *18-19 (S.D.N.Y. Sept. 28, 2007).
11. Plaintiffs also satisfy Rule 23(b)(3). Common factual allegations and a common legal
theory predominate over any factual or legal variations among class members. See Asia
Five Eight LLC, 2009 U.S. Dist. LEXIS 88163, at *4-5; AMF Bowling Ctrs., Inc., 2009
U.S. Dist. LEXIS 85954, at *5; Buddha-Bar NYC, 2009 U.S. Dist. LEXIS 45277, at *7-8;
Mohney, 2009 U.S. Dist. LEXIS 27899, at *12. Class adjudication of this case is superior
to individual adjudication because it will conserve judicial resources and is more efficient
for class members, particularly those who lack the resources to bring their claims
individually. See Damassia, 250 F.R.D. at 161, 164.
APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL
12. The Court appoints AndersonDodson, P.C. as Class Counsel because they meet all of the
requirements of Fed. R. Civ. P. 23(g). See Damassia, 250 F.R.D. at 165.
13. AndersonDodson did substantial work identifying, investigating, and settling Plaintiffs’
and the class members’ claims.
14. AndersonDodson lawyers have substantial experience prosecuting and settling
employment cases, including wage and hour individual and class actions, and are wellversed in wage and hour law and in class action law.
15. The work that AndersonDodson has performed both in litigating and settling this case
demonstrates their commitment to the class and to representing the class’s interests.
CLASS NOTICE
16. The Court approves the Proposed Notice and Claim Form, and directs their distribution to
the Class.
17. The content of the Notice fully complies with due process and Fed. R. Civ. P. 23.
18. Pursuant to Fed. R. Civ. P. 23(c)(2)(B), a notice must provide the best notice practicable
under the circumstances, including individual notice to all members who can be identified
through reasonable effort. The notice must concisely and clearly state in plain, easily
understood language: the nature of the action; the definition of the class certified; the class
claims, issues, or defenses; that a class member may enter an appearance through counsel
if the member so desires; that the court will exclude from the class any member who
requests exclusion, stating when and how members may elect to be excluded; and the
binding effect of a class judgment on class members under Rule 23(c)(3).
19. The Notice satisfies each of these requirements and adequately puts class members on
notice of the proposed settlement. See, e.g., In re Michael Milken & Assocs. Sec. Litig.,

150 F.R.D. 57, 60 (S.D.N.Y. 1993) (class notice “need only describe the terms of the
settlement generally”).
20. The Notice describes the terms of the settlement, informs the class about the allocation of
attorneys’ fees, and provides specific information regarding the date, time, and place of the
final approval hearing.
CLASS ACTION SETTLEMENT PROCEDURE
21. The Court hereby approves the settlement procedure as set forth in the Settlement
Agreement.
22. The Court will hold a final fairness hearing on Monday, April 27, 2020, 2:00 p.m. at
the United States District Court for the Southern District of New York, 40 Foley Square,
New York, New York, Courtroom 219.
23. The parties shall abide by all other terms of the Settlement Agreement.
SO ORDERED.

February 20, 2020
New York, New York