Passante et al v. Makkos et al

Filing 80

ORDER with respect to 79 Letter Motion to Compel. No later than Thursday, April 16, 2020, Defendants shall respond to Plaintiffs' letter. In their response, they shall advise the Court whether there is indeed only $250,000 in escrow. If so, they shall explain why they are not already in violation of the approved settlement agreement and when they intend to deposit the missing $100,000. (Signed by Judge Ronnie Abrams on 4/13/2020) (rj)

Case 1:17-cv-08043-RA-KNF Document 79 Filed 04/13/20 Page 1 of 1

MICHAEL G. O’NEILL
ATTORNEY AT LAW
April 13, 2020
No later than Thursday, April 16, 2020, Defendants shall respond to Plaintiffs' letter.

Hon. Ronnie Abrams
United States District Judge
40 Foley Square
New York, NY 10007

In their response, they shall advise the Court whether there is indeed only $250,000
in escrow. If so, they shall explain why they are not already in violation of the
approved settlement agreement and when they intend to deposit the missing
$100,000.
SO ORDERED.

Re:

Passante et al. v. Makkos et al.
17 Civ. 8043 (RA)

____________________________________
Ronnie Abrams, U.S.D.J.
April 14, 2020

Dear Judge Abrams:
I represent the plaintiffs. I am writing to seek the Court’s assistance in enforcing the
settlement entered herein between plaintiffs and defendants Makkos and Global Madison
(“defendants.”) A copy of the parties’ settlement agreement and the Court’s March 30, 2020
order approving settlement is attached. The Court retained jurisdiction to enforce the
settlement.
Under the terms of the settlement, defendants were to have deposited $100,000 into the
escrow account of counsel for defendants on October 15, 2019, and $50,000 on the 15 th of each
month thereafter. Within 3 days of the Court’s approval of the settlement, the money held in
escrow was to have been turned over to me.
As of March 30, 2020, there should have been $350,000 in escrow. After the settlement
was approved, I was informed that in fact there was only $250,000. As a result, defendants are
in default, and plaintiffs are entitled to enter judgment for the unpaid amount. I am preparing
the paperwork for entry of that judgment.
In the meantime, however, counsel for defendant has $250,000 of my clients’ money,
which he is obligated to send to me, but for some reason has not done so. On April 2, he
promised to send the money “in the next several days.” On April 4, he wrote that “you will
have it next week” and he asked for wire instructions, which I gave him. Since then, he has not
responded to my emails and the money has not been wired.
My clients are all waiters and out of work because all restaurants are closed. They are
in desperate straights. Counsel for defendants is holding their money in trust, and he has an
obligation as an escrow agent and officer of the Court to release that money. Since he refuses
to do so, I am asking that the Court order him to do so.
Respectfully yours,

30 VESEY STREET•NEW YORK•NEW YORK•10007•[phone]•[e-mail]

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 1 of 9
LINITBD STATES DISTRICT COURT
SOUTHIIRN ÐISTRICT OF NE\ry YORK
þ{ARIO PASSANTE, CARMINE COLASANTO,
GORAN STANIC, VIARIAN TASE, TARQUINO
REYES, NAMCYAL BHUTIA, ERHLEMBAT
DORJSUREN and GAE1NO LISCO,

1

7-cv-08û43

Plaintìffs,

SETTLEMENT AGRBEMENT
ANÐ

-against-

R.ELEASE

THOMAS N4AKKOS, NELLO BALAN

and

MADISON GLOBAL, LLC.,
)t¿luflÍs.

l'his Settlement Agrcement and Release of Claims ("Agreement") is entered into by and
among Piaintiiß Mario Passante, Cannine Colasanto. Goran Stanic, Marian Tase, Tarquino Reyes.
Namgyal Bhutia, Erhlembat Dorjsuren and Caetno Lisco ("Plaintiffs') on the one hanci, Maciison
Giobai, LLC ("Defendant Corporation?') and Thomas Makkos ("Individual

Defenclant"),

(coliectively, "Defèndants"), on tlie other hand.
\¡/HEREAS, Plaintiffs allege that they worked lor Defendants as employees:

ancl

V'/HERE^S, a dispute iras arisen regarding Plaintiffs' alleged employment and the terms
thereof, which dispute lras resulted in the fìling of an action in the United States District Court for
the Southern District of New York, Civil Action No: 17-cv-08043 (heleinafter "the Litigation"),
alleging, among other things, a violation of fecleral and state wage and hour ancl overtime iaws;
\Ã/HERËAS, Defendants deny any vioiation of fèderal and state r,vage and hour and
overtime lar,vs; and
V/HEREAS, the parties ciesire to resolve all disputes between them without the necessity
of furlher litigation;

NOW. TFIEREFORI, in consicleration of the mutual covenants anci promises herein
he reby ar:knou¡L:clgecl, it

cotttaineclancì crthergoocl and vah¡al¡le consicieralion, receipt rrf which is
is her"eby agreed as f'ollorvs:

?ayrnent: Defenclants shall pay or cause to be paid to Plaintifib and their counsel, subject to the
lerms and conclitions of this Agreeinent, the gross sum of Six Hundred Filty Thousand Dollars and
No Cents ($65{},000.00) (the "Settlement Amouiî") to be paid to Plaintifß' attonìeys in twelve (12)
installm{rnls as follows:

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 2 of 9

a.

lbr

clelènclants rcpresents that the first installmenl in the
in an escrow accoLlnt at Floffniann &
Associates. A chcck in the amount of $100,000.00 shall be macle fiom the Hoffmarur &
Associates escrow account to "Michael G. O'Neill, Esq. as Attomey fol'Plaintiffs" and
deliverecl to Plaintifß' counsel witirin three (3) clays of courl approvai of this Settlement
Agreement for immediatc deposit. Detennination of the Plaintiff's' share, counsel fbes,
and costs, is the responsibilþ solely of the Plaintiffs ancl their counsel as approved by
the Couú.

Installment One: Cotursel

amount

of

$100,000, has been deposited

b.

lnstallment Two: A clieck in the amounl of fìfly tirousand dollars ($50,000.00) made
payable to "lV{ichael G. O'Neill. Esq. as Attomey fbr Plaintiffs" and deiivered to
Piaintiflb'counsel on November 15,2019 lor immediate deposit. Detennination of the
Plaintifß' share, counsel tèes, and costs, is the responsibility solely of the Plaintifls and
their coursel as approved by the Court.

c.

Installment Three: A check in tl'ie amount of fifu thor¡sand dollars ($50,000.00) made
payable to "Michael G. O'Neill, Esq. as Attomey for Plaintiffs" and delivered to
Plaintiffs' counsel on December 15, 2019 lbr immediate deposit. Determination of thc
Plaintilfs' share, counsel fèes, and costs, is the responsibilify solely of the Plaintiffs and
their counsel as approved by the Llourt.

d.

lnstallment Four: A check in the amourt of fifu thousand dollars ($50,000.00) made
payable to "Michael G. O'Neill. Esq. as Attomey for Plaintiffs" and delivered to
Plaintiffs' counsel on January 15,2020Íbr inmediate deposit. Determination of the
Plaintiffb'share, counsel fèes, and costs, is the responsibility solely of the Plaintiflb and
their counsel as approved by the Court.

e.

Installment Five: A check in the amount of fifty thousancl dollars ($50,000.00) made
payable to "Michael G. O'Neill, Esq. as Attomey fbr Plaintiffs" and delivered to
Plaintiffs' counsel on Febmary 15,2A7A lor immediate deposit. Determination of the
Plaintifß' share, cormsel fees, and costs, is the responsibility soiely of the Plaintiffs anci
their counsel a^s applovecl by the Cout.

f.

I¡rstaiiment Six: A check in tlre amornt of fifty thousand dollars ($5û,000.0û) made
payable to "Michael G. û'Neiil. Esq. as Attonley lor Plaintifß" and delivered to
Plaintiffs' counsel on March 15,2A2A fÌrr immediate deposit. Detemrinaiion of the
Plairitiftb' shale, counsel fees, and ctrsts. is the responsibility solely of the Plaintiffb and
their counsel ;u approved by the Courl.

g.

lnstallment Seven: A check in the anrount of ti{Lv thousand dollars ($50.000.00) made
payable to "Michacl C. OlNcill. Esc1. as Attomcy for Plaintiffs" anci dclivelecl to
PiaintifTs' corin.sel on April 15, 202A fbr immediate deposit. l)etermination of the
Plaintiffs' share. counselfèes, and costs. is the responsibility si:lely of the Plaintifß ancl
their courisel as approved b1r the Court.

h,

Installinent Hight: A check in the amount ol tì$' thousand clollars ($50,000.00) made
payablc to "Michael G. O'Neill, Esq. as Attorney lor Plaintiffs" ¿rnd delivered to
Plaintifk' colinsel on May 15. 2A2A lcrr irnmediate deposit. Delemination ol the

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 3 of 9
Plaintifß' share, counsel fees, and costs, is the responsibility solely of the PlaintiÍ1-s aucl
their coulisel as approved by tlie Court.

Installnient Nine: A check in the amourt of fìfty thousand dollals ($50,000.00) macÌe
payable to "Michael G. O'Neili. Esq. as Attomeir for Plaintiffs" and deliverecl to
Plaintiffs' counsel on June 15, 2A20 for immediate deposit. Detemrination of the
Plaintiffs' share. cornsel 1èes. and costs, is the rcsponsibility solely of the Plaintiffs ancl
thcir counsel as approved by the Couft.

j

k.

Installment Ten: A cireck in the amount of fifty thousand dollax ($50.00û.00) made
payable to "Michael G. O'Neill, Esq. as Attomey for Plainfiffs" and delivered to
Plaintifß' counsel on July 15, 202A fbr immediate deposit. Determination of the
PlaíntilI-s' share, counsel fèes, anci costs, is the responsibiliry solely of the Plaintitls and
their counsci as approved by the Court.

I¡stallment Eleven: A check in the amount of fifty thous¿urd

to "Michael G. O'Neiil,

doll¿u's {$-50,000.00) made

for Plaintiffs" and delivered to
Piaintiiïs' counsel on August 15,2t20 for immediate deposit- Determination of the

payable

Esq. as Attorney

Plaiiltillb' share, counsei fees, and costs, is the responsibiiity solely of the Plaintiffs

ancl

lhcir counsel as approved by the Court,

l.

Installment f'welve: A check in the amount of filly thousand dollars ($50,000.00) made
payablc to "Michael G. O'Neill, Esq. as Aftorney for Plaintiffs" and delivered to
Plaintiffi' counsel on September 15,2A20 for immediate deposit. Detemination of the
Plaintifß' share, cotmsei fees, and costs, is the rcsponsibility solely of the Plaintiffs and
their counsel as approved by the Court.

rn. All

payments set forth above shall be delivered by hand or ovemight express service (lJS
Postal Service, UPS or Federal Express) to the Law Ofüce of Michael G. O'Neill to the
attention of Michael G. O'Neill, Esq.. 30 Vesey Street, Third Floor. New York, NY
10007.

ln ihe event that any installmeni pravided Íbr hercin shall fail c'lue before Court approval ofthis agreement,
said installment shall be deposited h the escrow account of Floffrnan & Associatcs ancl lumed over to
counsel for plaintiffs within tfxee days of the Court's approval of this settlement.

2.

(a) The Coult shall dismiss the Litigation, with prejudice; however the Coirrt shall retain
jurisdiction pursuant to the terms of this Agreement so that the Coufi has jurisdiction to enter
judgment in the event of Defèndants' tàilure to adhere to the paynent schedule by a breach and
faiiure to curc as clescl'ibecl below.
event that any installment ol the Settlement Anrount is not paid by the payment clates set
forth in Paragraph l above. or ir: the event the initiai rleposit is not made to lhc escrow accourit of

{b) ln the

Floffirann.& Associates as required by paragraph 1(a) above, or in the event any check fails to clear
(i.e. bounces) on its respective payment date, Plaintiffb' counsel shall serve a written notice ("Deiàult
Notice") upon cor¡nscl f'or lìrc Delèndants by email and hand delivery or cedifìed rrail. and the
Defendants shall have ten ( l0) days fì'om the date of the emaii delivery of the Default Notice lo cure
the defàult by making sr.rch paymenl togethel rvith an aciditional ¿u¡ount of $100.00 to rcimburse for
tbe time and costs t¡fleae h botrnced check. Upon Dcfcndants' fâilr-rre to cure a defäult within ten ( l0)

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 4 of 9
days of delivery by ernail ol the Delbult Notice, counsel fol PlaintiffÌ; shall immecliately fìle the
Alfìdavit of Confbssion of .ludgment, the fonn of which is appended hereto as Exhibits A, and all
remaining mories wili ilnmediately become due and payable.

3.

Not
Plaintiffs hercby inevocably ancl unconditionally release fiom
ancl forcver discharye and covenant not to sue Defèndants, and for each of them, thcir hcirc,
successors, assigns, affiliates. pareni organizations, subsidiaries, clirectors, owners, shareholdem,
members, agents, attomeys, legal rcpresentatives and manage$ any and all charges, complaints,
claims, callses of action, suits, debts, liens, contracts, r'ights, demands, controvenies, lûsses, costs and
or experlses, inclucling legal Èes and any other liabilities of any kind or nature whatsoever, kuown or
nnknown, suspected or unsuspected, whether {ìxed or contingent (hereinafïer refen-ed to as "claim"
or "claitns") which each Piaintiffat any time has, had, claims or claimed to have against Defcndants
arìsing r:nder låe Fair Labor Standards Act ("FSLA") or the Ner,v York Labor Law provisions relating
to the paytnent of wages that have occuned as of the Effective Date of this Agreement. Similarly,
Defcndants rclease and discharge Plaintiffs from any and all claims, and liabilities of any kincl that
they have, had or claimed to have against Plaintifß relating to the ciaims, transactions and
occtuiences ¡aised in this Litigation that have occured as of the Eflective Date of this Agreement.

4.

No Admission of Wrüni¿tioinu: This Agreement and compliance with this Agreement shall not be
construed as an admission by Detbndants of any liability whatsoever, or of any violation of any
statute- rcgr:lation, duty, contract, right or older.

5,

This Agreement may not be ciranged unless the changes are in
Mgdt{içatian qf tbe
writing and signed by a proper reprcsentative of Plaintiftb and Defendants.

6.

Acknowlcrlgrlcnts: Plaintifß and Defendants acknor,vledge that they are noi relying upol1 any
statement, rcprcsentation or promise in executing this Agreement except for statements,
representations or promises expressly set lcrth in this Agreement. They further acknowledge ancl
agree tirat the only consideration for signing this Agreement is as set f-oÍir in this Agreement.

7.

Rçlease and Covenant

Atlr

Noticgs: Notices required underthis Agreement (otherthan notice of default

a-s

set forth in paragraph

2(b) above) shall be in r,vriting anrl shail be deemed given on the first business day following firstclass mailing and electronic trcnsmission thereof. Notice hereuirder shali be delivered to:

To Plaintiffs:
Michael G. O'Neill, Esq.
I-AW ÛIìFICE OI.'MTCH,{I,L C. O'NO¡LL

30 Vesey Street, f'hird Floor

New York, NY 10007
Tel: [phone]
Email : [e-mail]
To Delendants
A¡rdrew S. HofTìnann, Esq.
Flopp'n¡aNu & Assocr.rle,s
450 7th Ave., Sre. 1400
New York, NY 10123

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 5 of 9
Tel:(2i2) 679-A400
Fax: {212) 679- I 080
Emai I : Andrer,v.Hoffinann(@hoff mannlegal.com

L

"l'his Agreement shall be governed by, and interpreted in
accordance with, the laws
of the State of New York, excluding the conflict-oÊlar,vs principles thereof. The parties consent and
stipulate to lhe personal jurisdiction of the Unifed States Distdct Coult tbr the Southem District of
New Yorlc and the Supreme Court of the State ofNe*'York in any subsequent proceeding to enforce

Governinq

law;

this Agreemcnt.

9.

Flifirrcell:iiit],: If any provision of this Agrcernent is lield to be iilegal, void, or unenforceable, such
provision shall be of no fbrce ot'efÊct. However. the iliegality or unenl-orceability of suclr provision
shall have no efflect upon, and shall not impair the legality or enfbrceability ot. any other provision of
this Agreement, provided. however, that upon any finding by a court of competent jurisdiction that a
release or ,uvaiver of claims or rights ol a covenanl set forth herein is illegal, void or unenforceable,
Plaintiffs agree to promptly execute a release, waiver andlor covenant that is iegal and enforceable.

10. Retention of Jurisdictiqq: The pafies agree that the Court shall retain judscliction of this Agreement
fbr purposes of enfbrcing the Agreement.
11. Reþase_lþ1ificêtiAn; Defendants advised Plainti{ß to discuss the terms of this Agreement and
release of claims with their legal counsel and Plaintiffs acknowledge that they have consuited with
Michael G. O'Neill, Esq. of the Law Office of Michacl G, O'Neill. Plaintiffs acknowledge that it is
their choice to waive any potc'ntial ciaims in retrun for-the benefits set forth herein and thaf each of
them made this decision after careful thought and a reasonable period of time to consider this
Agreemenl, and after an opporninity to consult with their attomeys. Plaintifß confirm that this
Settlement Agrcement and Release has been transiated to them in Spanish ¿nd that they understand
the tems of this Agreement and that they are signing this Agreement voluntariiy.
12. Coutrlcr¡xi¡1s: To signi$ their agreemenl to the terms of this Agreement and Release, the parties have
executecl this Agreement on the clate set forth opposite their signatures, which appear belor,v. This

Agteement may be executed in nvo or more countetpaÍs and each of such counterparts, fbr all
purposes, shall be deemed to be an original but all of such couirte¡parts together shall constitute brrt
one and the same instrument, binding Lrpon ail parties hereto, notwithstanding that all of such parties
may not have executed the same counterpart. This agreement may aiso be executed by facsimile
transmission.
13.

Michael C. O'Neill tepresents that he is autl'iodzed
agreement on behalf of Gaetano Lisco ancl Tarquino Reyes.

å&UUï ltflfaç!

as attomey in fact to sign this

I

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 6 of 9
PI,AINTIFFS:

ou",

By:

MARI

SANTE

/Á,

By:

I

Itt

&v-\

Date:

NTO

CO

1L-þ.fu:1

{

c

By:
GORAN STANIC

By:

/2-3o'Le f7

Date

wC

3

Date

MARIAN TASE
By:

lzþ") tf

Date

TARQUINO REYES

Date:

By:

BHUTiA

G

¿i

By:

Date

T DORJS

Dare:

løf s"f ,7

Date:

By:

l¿

GAETANO I,ISCO

ÐEFE}{DANTS
M

s

f

By

LLC

Date:

By
't't-ro

..

MAKKOS

lz/ll /lf

/3

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 7 of 9
PLAINTIFFS:

Date:

By

MARIO PASSANTE

By

Date:

CARMINE COLASANTO

Date;

By:
GORAN STANIC

Date:

By
MARTAN TASE

Date:

By:

TARQUINO REYES

By:

Cü L"Jn'"

Date:

tl/øfaon

NAMGYAL BHUTIA

srlkr#

By:

S,*rÙry

Date:

t

3Ð tQ.

DORJSUREN

Date

By:

GAETANO LISCO

DEEENDANTS
I,. LLC

By

Date:

By

Date;
MAKKOS

/¿

lt/ll /ll
,

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 8 of 9

EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NBW YORK
MARIO PASSANI-H, CARMINE COLASANTO,
GORAN STANIC, MARIAN TASF,, TARQUINO
REYES, NAMGYAL BI-IUTIA, ERHLEMBAT
DORJSUREN and GAETNO LISCO,

l7-cv-08043

PlaintilTs,

AF'FIDAVIT OF CONFBSSION
OF JUDGMBNT

-against-

THOMAS MAKKOS, NELLO BALAN

and

MADISON GLOBAL, LLC.,
ndqnts.

STATEOFNEV/YORK
couNTY oF NEW YORK

)

) ss.
)

THOMAS MAKKOS, being duly sworn, deposes and says:

1.

I, THOMAS MAKKOS, am the Owner of MADISON GT.OBA[., Ll.C with the

principal place of business located at

A{
yv-

À

þ

r"

ç-4,. *\),

L

2.

I

3.

I have authority to sign on behalf of MADISON GLOBAL, LT.C and I am

resicle at

authorized to make this affidavit on the undersigned entity's behalf.

4.

Provicled there shall have been an event of delault in the payment of the sums cluc

under the settlement agreement and general releasc

tL

//t

tlatcdpl,ødr

(thc "setliement

-.2019

Agreenrent and General Release") signed by Plaintill.s and Def.endants in the above captioned
proceeding and such default has continued uncured ancl unpaid for a period in excess ofthree (3)
clays alter notice and opportunity to cure as providecl lherein, then..upon subnrission

of Plaintiffs'

counsel's attorney affinnation attesting to such default nnder, I hereby confèss judgment

ancl

{c6or

Case 1:17-cv-08043-RA-KNF Document 79-1 Filed 04/13/20 Page 9 of 9
authorize entry ofjudgment against MADISON GLOBAL, LLC ancl me in favor of Plaintiffs for
the sum of $650,000.00, lcss

aly

pirynrcnts previouslv rcceivetl pursuant to the terms of the

Settlement Agreement and General Release, together with interest from the date of the default to
the date of errtry ofjudgment, computed as provided in CPLR 5004; statutory costs pursuant to
28 U.S.C. $$ 1920, 1921, 1923, and 1924; and lcasonable atton'reys' fees incurred in entering
and enforcing the judgment; and interest on the judgment pursuant to CPLR 5004.

5.

This Confession of Judgment is for a debt justly due to Plaintifls pursuant to the

Settlement Agreement, and Dcfendants' default in payment under the Settlement Agrcement.

6.

I hereby represent my understanding that upori Defendants' breach of the

Settlement Agreement and failure to cure, this Confession of Judgment shall be docketed and
entered as

a

judgment against each of 'l'homas Makkos and Madison Global, LLC, joirrtly and

severally, against all property, of any kind, in which any of them, collectively or individually,
have any ownership interest.

individually and
of lvladison Global, LLC
Swom to before me this

/J-duy or }e¡¿nlrr

of 20le
TRAM D. LOPFESTO
NOTARY PUBLIC.STATE OF NËW YORK

No,02LO6291404

Public

Oualilied ln New York CountY
My Commiggion Expires A2'26'2A22

as

Case 1:17-cv-08043-RA-KNF Document 79-2 Filed 03/30/20 Page 11of 77
Case 1:17-cv-08043-RA-KNF Document 78 Filed 04/13/20 Page of

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARIO PASSANTE; CARMINE
COLASANTO; GORAN STANIC; MARIAN
TASE; TARQUINO REYES; NAMGYAL
BHUTIA; ERHLEMBAT DORJSUREN; and
GAETANO LISCO,
Plaintiffs,
v.

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 3/30/2020

No. 17-CV-8043 (RA)
ORDER

THOMAS MAKKOS; MADISON GLOBAL,
LLC; and NELLO BALAN,
Defendants.
RONNIE ABRAMS, United States District Judge:
Plaintiffs Mario Passante, Carmine Colasanto, Goran Stanic, Marian Tase, Tarquino
Reyes, Namgyal Bhutia, Erhlembat Dorjsuren, and Gaetano Lisco bring this action against their
former employers, Defendants Thomas Makkos, Madison Global, LLC, and Nello Balan for
alleged violations of the Fair Labor Standards Act (“FLSA”) and the New York State Labor Law
(“NYLL”). 1 Before the Court is the parties’ application for approval of their negotiated
settlement agreement (the “Settlement Agreement”). 2 See Dkt. 77, Ex. A (Settlement
Agreement).

Defendant Balan “is not party to the settlement,” and Plaintiffs “intend to abandon their claims against
[him].” Dkt. 75-1 (Decl. of O’Neill) ¶ 2. Also, Plaintiffs’ amended complaint “asserted other theories of recovery
against [D]efendants,” but they acknowledge in their submissions that “discovery did not produce sufficient
evidence to support those other theories.” Id. at 2 n.1.
1

2
When the parties initially filed this motion on October 18, 2019, they only included a Memorandum of
Understanding, not an executed settlement agreement. See Dkt. 75-1, Ex. C (Memorandum of Understanding).
Because “[a] prerequisite before submission for approval by the court is a fully executed settlement agreement,”
Hernandez v. Fresh Diet Inc., No. 12-CV-4339 (ALC), 2017 WL 4838328, at *4 (S.D.N.Y. Oct. 25, 2017), the
Court requested that the parties submit a copy of the executed agreement, which was done on January 28, 2020. See
Dkt. 77, Ex. A.

Case 1:17-cv-08043-RA-KNF Document 79-2 Filed 03/30/20 Page 22of 77
Case 1:17-cv-08043-RA-KNF Document 78 Filed 04/13/20 Page of

As an initial matter, the Court notes that Mr. Tase, who passed away in November 2019,
did not sign the Settlement Agreement. See Dkt. 77 (Supplemental Decl. of O’Neill) ¶ 4.
Plaintiffs’ counsel states that he “ha[s] been in touch with [Mr. Tase’s] survivors,” who are in
Romania, and “[they] have started the process to have an administrator appointed.” Id. ¶ 5. The
parties thus request that the Court approve the settlement, “notwithstanding the fact that Mr.
Tase’s signature is not on the final settlement,” and propose holding Mr. Tase’s “portion of the
settlement . . . in escrow . . . until such time as his administrator has obtained the requisite
approvals from the Surrogate’s Court.” Id. ¶¶ 6-7.
Because Mr. Tase did not sign the Settlement Agreement, the Court cannot consider him
bound to it. See Samaroo v. Deluxe Delivery Sys. Inc., No. 11-CV-3391 (HBP), 2016 WL
1070346, *3 (S.D.N.Y. Mar. 17, 2016) (“As an initial matter, because [three of the plaintiffs]
have not signed the Settlement Agreement, they cannot be bound by it.”). It seems, however,
that Plaintiffs’ counsel intends to pursue substitution of Mr. Tase with a proper party. See Dkt.
77 ¶¶ 6-7 (requesting that Mr. Tase’s portion be held in escrow until an administrator is
appointed); see also Jipeng Du v. Wan Sang Chow, No. 18-CV-1692, 2019 WL 3767536, at *6
(E.D.N.Y. Aug. 9, 2019) (explaining that “the FLSA and NYLL are remedial” and “thus[] claims
brought under those statutes survive the death of a litigant”). If so, Plaintiffs’ counsel must file a
motion for substitution pursuant to Federal Rule of Civil Procedure 25(a), which requires first
filing and serving “a statement noting the death” of Mr. Tase. Fed. R. Civ. P. 25(a)(1).
Here, the Court interprets Plaintiffs’ counsel’s declaration, filed on January 28, 2020, as
a “statement noting [Mr. Tase’s] death.” Fed. R. Civ. P. 25(a)(1); see Dkt. 77. The Court also
concludes that, as required under Rule 25(a), this statement was properly served on the parties in
this action. See Fed. R. Civ. P. 25(a)(3) (requiring that “[a] statement noting death” be served
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“on the parties as provided in Rule 5”); see also Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467,
469 (2d Cir. 1998) (explaining that Rule 25(a) “does not require that the statement identify the
successor or legal representative; it merely requires that the statement of death be served on the
involved parties”); Steward v. City of New York, No. 04-CV-1508, 2007 WL 2693667, at *3-4
(E.D.N.Y. Sept. 10, 2007) (holding that the defendants properly served the suggestion of death
“on all parties electronically through the court’s ECF system”). Accordingly, Plaintiffs’ counsel
has ninety (90) days – that is, until April 27, 2020 – to file the motion for substitution. See Fed.
R. Civ. P. 25(a)(1) (requiring that a motion for substitution be “made within 90 days after service
of a statement noting the death”). Should Plaintiffs’ counsel need an extension to file this
motion, he should advise the Court no later than April 20, 2020. See Grapsas v. N. Shore Farms
Two, Ltd., No. 16-CV-775, 2018 WL 1136088, at *2-3 (E.D.N.Y. Feb. 28, 2018) (“Despite the
use of ‘must’ in Rule 25(a)(1), courts have discretion to extend this 90-day period for good cause
pursuant to Fed. R. Civ. P. 6(b).”).
The Court, however, may still review and approve the Settlement Agreement as to the
remaining Plaintiffs. See Samaroo, 2016 WL 1070346, at *3. District courts must scrutinize
FLSA settlements to determine if they are fair and reasonable. See Cheeks v. Freeport Pancake
House, Inc., 796 F.3d 199, 201, 206 (2d Cir. 2015). In doing so, the courts must evaluate the
totality of the circumstances including “(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.”
Wolinsky v. Scholastic, Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (citation omitted).
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Having reviewed the Settlement Agreement and the parties’ submissions, the Court concludes
that the Settlement Agreement is fair and reasonable.
Under the proposed Settlement Agreement, Defendants agree to pay Plaintiffs a total of
“$650,000, inclusive of fees, costs and liquidated damages, paid in twelve installments.” Dkt.
75-1 ¶ 13; see also Dkt. 77, Ex. A ¶ 1. Plaintiffs’ counsel “has agreed to . . . $119,979.54” in
attorney’s fees and $10,144.71 for reimbursement of out-of-pocket expenses incurred in
prosecuting Plaintiffs’ claims. Dkt. 75-1 ¶¶ 19-20. Accordingly, after attorney’s fees and costs
are deducted, Plaintiffs will collectively recover $519,875.75, which is to be “apportioned among
[them] according to the amount of their claims,” with “a small additional sum” going to Mr.
Passante because of his lead role in the litigation. Dkt. 75-1 ¶¶ 21-22.
Both the amounts allocated to Plaintiffs and for attorney’s fees are fair and reasonable.
Plaintiffs estimated that, if they had prevailed on all claims at trial, they would be entitled to
approximately $600,000 in actual damages, in addition to liquidated damages and attorney’s
fees. See Dkt. 75-1 ¶ 12. Their recovery pursuant to the Settlement Agreement is, therefore,
about 85% of Plaintiffs’ “actual damages claimed.” Memo. at 3. Although this recovery falls
short of the maximum amount that Plaintiffs believe they may have obtained at trial, it is still a
significant percentage of Plaintiffs’ overall estimated damages. Moreover, Plaintiffs’ counsel
explains that this “settlement eliminates the delays and uncertainties of litigation[.]” Memo. at 3.
Plaintiffs’ claims principally relate to Defendants’ alleged payment of tips from the “tip pool” to
other employees, who Plaintiffs contend were not service workers entitled to a share in the “tip
pool.” Dkt. 75-1 ¶¶ 4, 15-17. Defendants dispute “[P]laintiffs’ characterization of those
employees.” Id. ¶ 16. Yet, as Plaintiffs’ counsel acknowledges, “[t]here was no direct evidence
on the issue,” and thus there was significant uncertainty as to whether Plaintiffs could prove their
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case at trial. Id. ¶¶ 15-17. “[I]n light of the legal and evidentiary challenges that would face the
[P]laintiffs in the absence of a settlement,” the proposed recovery amount of $519,875.75 for
Plaintiffs is fair and reasonable. Lopez v. Poko-St. Ann L.P., 176 F. Supp. 3d 340, 342 (S.D.N.Y.
2016).
However, because Mr. Tase did not sign the Settlement Agreement and the Court cannot
approve the Settlement Agreement as to his claims, the Court holds that $159,026.90 – the
portion of the recovery allocable to Mr. Tase, see Dkt. 75-1 ¶ 21 – is subject to the eventual
approval of a substitution of a proper party. See Samaroo, 2016 WL 1070346, *3 (deducting the
amount of recovery allocable to the plaintiffs who had not signed the settlement agreement). As
proposed by the parties, see Dkt. 77 ¶ 7, the Court orders Defendants’ counsel to keep the
amount allocable to Mr. Tase in escrow pending the filing and approval of Plaintiffs’ motion for
substitution. Upon the Court’s approval of that motion, Defendants’ counsel must immediately
release this amount to Plaintiffs’ counsel. In the event that this motion is either not filed or
granted, the amount held in escrow on behalf of Mr. Tase’s claims must be released back to
Defendants.
The amount allocated in the Settlement Agreement for attorney’s fees is also fair and
reasonable. See Dkt. 75-1 ¶¶ 19-20; see also Gurung v. White Way Threading LLC, 226 F. Supp.
226, 229-30 (S.D.N.Y. 2016) (“In an FLSA case, the Court must independently ascertain the
reasonableness of the fee request.”). The proposed amount of $119,979.54 is approximately
18.5% of Plaintiffs’ recovery. See Memo. at 3. When using a “percentage of the fund”
approach, “courts regularly approve attorney’s fees of one-third of the settlement amount in
FLSA cases.” Meza v. 317 Amsterdam Corp., No. 14-CV-9007 (VSB), 2015 WL 9161791, at *2
(S.D.N.Y. Dec. 14, 2015). As the attorney’s fees here are less than one-third of the settlement
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amount, the Court concludes that they are reasonable as a fair percentage of the net award. 3 See
Beckert v. Ronirubinov, 15-CV-1951 (PAE), 2015 WL 8773460, at *3 (S.D.N.Y. Dec. 14, 2015)
(approving a settlement agreement awarding attorney’s fees equal to one-third of the total
recovery).
As a final note, the Settlement Agreement includes a limited release provision. “In FLSA
cases, courts in this District routinely reject release provisions that ‘waive practically any
possible claim against the defendants, including unknown claims and claims that have no
relationship whatsoever to wage-and-hour issues.’” Gurung v. White Way Threading LLC, 226
F. Supp. 3d 226, 228 (S.D.N.Y. 2016) (quoting Lopez v. Nights of Cabiria, LLC, 96 F. Supp. 3d
170, 181 (S.D.N.Y. 2015)). For this reason, “[a] number of judges in this District refuse to
approve any FLSA settlement unless the release provisions are ‘limited to the claims at issue in
this action.’” Cionca v. Interactive Realty, LLC, No. 15-CV-05123 (BCM), 2016 WL 3440554,
at *3 (S.D.N.Y. June 10, 2016) (quoting Lazaro-Garcia v. Sengupta Food Servs., No. 15-CV4259 (RA), 2015 WL 9162701, at *2 (S.D.N.Y. Dec. 15, 2015)). Here, the provision only
requires Plaintiffs to release Defendants from claims “arising under [FLSA] or the [NYLL]
provisions relating to the payment of wages that have occurred as of the Effective Date of this
Agreement.” Dkt. 77, Ex. A ¶ 3. This release provision thus poses no obstacle to the Court’s
approval of the Settlement Agreement.

3
The Court notes that, even if the amount allocable to Mr. Tase’s claims was not considered as part of the
total recovery, the proposed attorney’s fees would still amount to less than one-third of the total recovery amount
and thus be fair and reasonable under this district’s case law.

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CONCLUSION
For the reasons stated above, the Court approves the Settlement Agreement, with the
exception that the portion of recovery allocable to Mr. Tase’s claims must be held in escrow
pending the filing and approval of Plaintiffs’ motion for substitution. The Court will retain
jurisdiction to review a motion for substitution as to Mr. Tase’s claims and to enforce the
Settlement Agreement. As to the other Plaintiffs, the Court dismisses this action with prejudice
in accordance with the Settlement Agreement.
SO ORDERED.
Dated:

March 30, 2020
New York, New York
Ronnie Abrams
United States District Judge

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