Monica v. Deals On Broadway Corp. et al

Filing 34

OPINION AND ORDER: Accordingly, for all the foregoing reasons, I approve the settlement in this matter. In light of the settlement, the action is dismissed with prejudice and without costs. The Clerk is respectfully requested to mark this matter closed. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 1/18/2019) Copies Transmitted By Chambers. (ne)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
ANTONINA "MONICA" MONICA,
Plaintiff,
18 Civ. 1342

(HBP)

-againstOPINION
AND ORDER

DEALS ON BROADWAY CORP., doing
business as "Deals on Broadway,"
et al.,
Defendants.

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PITMAN, United States Magistrate Judge:
This matter is before me for review of the parties'
settlement agreement in this action brought under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C.
York Labor Law ("NYLL").

§§

201, et seq. and the New

All parties have consented to my

exercising plenary jurisdiction pursuant to 28 U.S.C.

§

636(c)

For the reasons set forth below, the settlement is approved.
The parties were able to reach their settlement without
the assistance of the Court.

Accordingly, my knowledge of the

case is limited to the allegations in the complaint and the
information provided in plaintiff's letter in support of the
settlement.
Plaintiff was employed at defendants' retail clothing
store frm April 16, 2014 through February 2, 2018.

The complaint

states that plaintiff worked as ''a cleaning person, stock up

person and customer service provider"
( "D. I.") 1)

( "Compl. ")

1

7).

average of 63 hours per week.

(Complaint (Docket Item

Plaintiff claims that she worked an
She further claims that until

April 2016, she was paid a flat daily wage of $70.00.

From April

2016 through January 2018, she was paid at an hourly rate of
$10.50 for all hours that she worked, and from January 2018
through the end of her employment, she was paid at an hourly rate
of $12.00 for all hours that she worked.

For the latter portion

of her tenure with defendants, she was paid by check and apparently received a wage statement.

She claims that the wage

statement substantially understated the hours that she actually
worked in order to create the appearance that she received

1

appropriate overtime pay (Compl.

26).

Based on the foregoing,

plaintiff has alleged claims under the FLSA and the NYLL contending that defendants failed to pay her the minimum wage, overtime
premium pay, and spread-of-hours pay, and that defendants are
liable for statutory penalties for failing to provide the required wage notice and wage statements.

Plaintiff claims that

her total unpaid straight time and overtime wages are $54,327.28,
exclusive of liquidated damages.

Other than the fact of plain-

tiff's employment, defendants have denied all of the material
allegations in the complaint.

2

The settlement provides that defendants will pay a
total amount of $52,000.00 -- $34,200.00 to be paid to plaintiff
and $17,800.00 to be paid to counsel for fees and costs.
Court approval of an FLSA settlement is appropriate
"when [the settlement] [is] reached as a result of
contested litigation to resolve bona fide disputes."
Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL 4357376
at *12 (S.D.N.Y. Sept. 16, 2011).
"If the proposed
settlement reflects a reasonable compromise over contested issues, the court should approve the settlement." Id. (citing Lynn's Food Stores, Inc. v. United
States, 679 F.2d 1350, 1353 n.8 (11th Cir. 1982)).
Agudelo v. E

&

D LLC, 12 Civ. 960 (HB), 2013 WL 1401887 at *l

(S.D.N.Y. Apr. 4, 2013)

(Baer, D.J.)

(alterations in original).

"Generally, there is a strong presumption in favor of finding a
settlement fair,

[because] the Court is generally not in as good

a position as the parties to determine the reasonableness of an
FLSA settlement."

Lliguichuzhca v. Cinema 60, LLC, 948 F. Supp.

2d 362, 365 (S.D.N.Y. 2013)
tion marks omitted).

(Gorenstein, M.J.)

(internal quota-

In Wolinsky v. Scholastic Inc., 900 F.

Supp. 2d 332, 335 (S.D.N.Y. 2012), the Honorable Jesse M. Furman,
United States District Judge, identified five factors that are
relevant to an assessment of fairness of an FLSA settlement:
In determining whether [a] proposed [FLSA]
settlement is fair and reasonable, a court should
consider the totality of circumstances, including but
not limited to the following factors:
(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 claims and defenses; (3) the seriousness of the
litigation risks faced by the parties; (4) whether the
3

settlement agreement is the product of arm's length
bargaining between experienced counsel; and (5) the
possibility of fraud or collusion.
(internal quotation marks omitted).

The settlement here satis-

fies these criteria.
First, the net settlement amount represents approximately 63% of plaintiff's claimed unpaid wages and overtime pay.
Defendants contend that they have time records that accurately
reflect the hours plaintiff worked and additional documentary
evidence establishing that plaintiff always received the legally
required straight time and overtime pay.

Although plaintiff

claims that she has documentary and testimonial evidence that
will support her claims, she has not identified this evidence.
As discussed in more detail below, given the risks these issues
present, the settlement amount is reasonable.
Second, the settlement will entirely avoid the expense
and aggravation of litigation.

As noted above, defendants

dispute the number of hours plaintiff worked and almost all the
material allegations of the complaint.

Thus, trial preparation

would likely require depositions of both sides to explore these
issues.

The settlement avoids the necessity of conducting these

depositions.
Third, the settlement will enable plaintiff to avoid
the risk of litigation.

To prevail at trial plaintiff, will bear

the burden of proving the number of hours that she worked and how

4

much she was paid.

Given plaintiff's apparent inability to

identify any corroborating evidence and her interest in the
outcome, there is a non-trivial risk that a fact finder may not
credit her testimony.

See Bodon v. Domino's Pizza, LLC, No. 09-

CV-2941 (SLT), 2015 WL 588656 at *6 (E.D.N.Y. Jan. 16, 2015)
(Report

&

Recommendation)

(" [T]he question [in assessing the

fairness of a class action settlement] is not whether the settlement represents the highest recovery possible

. but whether

it represents a reasonable one in light of the uncertainties the
class faces .
sub nom .

" (internal quotation marks omitted)), adopted

.QY, Bodon v. Domino's Pizza, Inc., 2015 WL 588680

(E.D.N.Y. Feb. 11, 2015); Massiah v. MetroPlus Health Plan, Inc.,
No. ll-cv-05669 (BMC), 2012 WL 5874655 at *5 (E.D.N.Y. Nov. 20,
2012)

( 11 [W] hen a settlement assures immediate payment of substan-

tial amounts to class members, even if it means sacrificing
speculative payment of a hypothetically larger amount years down
the road, settlement is reasonable .

11

(internal quotation

marks omitted)).
Fourth, there is no evidence that the settlement is
anything other than the product of arm's-length bargaining
between experienced counsel.

The fact that the gross settlement

amount is almost equal to the total amount of claimed unpaid
wages and overtime is circumstantial evidence that the settlement

5

was not the product of collusion between counsel or any other
misconduct.
Fifth, there is no evidence suggesting fraud.

As noted

in the preceding paragraph, the gross amount of the settlement
inferentially negates the possibility of fraud or collusion.
The settlement agreement also contains a release of
defendants limited to wage and hour claims.
release is unquestionably permissible.
Contracting Corp., 16 Civ. 3502
(S.D.N.Y. Oct. 18, 2017)

Such a limited

See Redwood v. Cassway

(HBP), 2017 WL 4764486 at *3

(Pitman, M.J.)

(release of defendants

"from any and all wage and hour and/or notice claims" that could
have been brought permissible "because it is limited to claims
relating to wage and hour issues"); Yunda v. SAFI-G, Inc., 15
Civ. 8861 (HBP), 2017 WL 1608898 at *3 (S.D.N.Y. Apr. 28, 2017)
(Pitman, M.J.)

(release that is "narrowly-tailored to plaintiffs'

wage-and-hour claims" permissible); see also Santos v. Yellowstone Props., Inc., 15 Civ. 3986 (PAE), 2016 WL 2757427 at *l, *3
(S.D.N.Y. May 10, 2016)

(Engelmayer, D.J.); Hyun v. Ippudo USA

Holdings, 14 Civ. 8706 (AJN), 2016 WL 1222347 at *3-*4 (S.D.N.Y.
Mar. 24, 2016)

(Nathan, D.J.).

Finally, the settlement provides that 33.3% of the net
settlement fund -- $17,100.00 -- will be paid to plaintiff's
counsel as a contingency fee.

Contingency fees of one-third in

FLSA cases are routinely approved in this Circuit.

6

Santos v. EL

Tepeyac Butcher Shop Inc., 15 Civ. 814 (RA), 2015 WL 9077172 at
*3

(S.D.N.Y. Dec. 15, 2015)

(Abrams, D.J.)

(" [C]ourts in this

District have declined to award more than one third of the net
settlement amount as attorney's fees except in extraordinary
circumstances."), citing Zhang v. Lin Kumo Japanese Rest. Inc.,
13 Civ. 6667 (PAE), 2015 WL 5122530 at *4
2015)

(S.D.N.Y. Aug. 31,

(Engelmayer, D.J.) and Thornhill v. CVS Pharm., Inc., 13

Civ. 507 (JMF), 2014 WL 1100135 at *3

(S.D.N.Y. Mar. 20, 2014)

(Furman, D.J.); Rangel v. 639 Grand St. Meat & Produce Corp., No.
13 CV 3234 (LB), 2013 WL 5308277 at *l (E.D.N.Y. Sept. 19, 2013)
(approving attorneys' fees of one-third of FLSA settlement
amount, plus costs, pursuant to plaintiff's retainer agreement,
and noting that such a fee arrangement "is routinely approved by
courts in this Circuit"); Febus v. Guardian First Funding Grp.,
LLC, 870 F. Supp. 2d 337, 340 (S.D.N.Y. 2012)

(Stein, D.J.)

(" [A]

fee that is one-third of the fund is typical" in FLSA cases);
accord Calle v. Elite Specialty Coatings Plus, Inc., No. 13-CV6126 (NGG) (VMS), 2014 WL 6621081 at *3

(E.D.N.Y. Nov. 21, 2014);

Palacio v. E*TRADE Fin. Corp., 10 Civ. 4030 (LAP) (DCF), 2012 WL
2384419 at *6-*7 (S.D.N.Y. June 22, 2012)

(Freeman, M.J.).

This

figure is also almost equal to plaintiff's counsel's lodestar
figure of $17,640.00 (Letter from Lorena P. Duarte, Esq. to the
undersigned, dated August 2, 2018,
Annexed as Undesignated Exhibit).

7

(D.I. 30), Time Records

Accordingly, for all the foregoing reasons, I approve
the settlement in this matter.

In light of the settlement, the

action is dismissed with prejudice and without costs.

The Clerk

is respectfully requested to mark this matter closed.
Dated:

New York, New York
January 18, 2019
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel

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