Rosario v. El Nuevo Amanecer Rest. Corp. et al

Filing 41

ORDER: This action has been referred to Judge Moses for general pre-trial management. (Dkt. No. 17.) Following Court-annexed mediation, the mediator has reported that the parties have reached an agreement on all issues in this case (Dkt. No. 40), which includes claims brought under the Fair Labor Standards Act (FLSA). If the parties wish to consent to the jurisdiction of the undersigned magistrate judge for review of their proposed settlement agreement for approval pursuant to Cheeks v. F reeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), they shall do so no later than March 3, 2021. Thereafter, no later than March 12, 2021 (and regardless of whether they have consented to magistrate judge jurisdiction), the parties shall su bmit: (a) a joint letter demonstrating that the settlement agreement is fair and reasonable and should be approved in light of the factors enumerated in Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335-36 (S.D.N.Y. 2012); (b) a copy of their f ully executed settlement agreement, which will be placed on the public docket, see Wolinsky, 900 F. Supp. 2d at 335; and (c) if plaintiffs' counsel seek an award of attorneys' fees and costs, counsel's time and expense records, toget her with any contingency fee agreement in this action. The parties are cautioned that "it would be the very rare case, if any, where confidentiality terms in a settlement agreement would be appropriate in resolving a wage-and-hour lawsuit giv en the policy concerns underlying the FLSA." Souza v. 65 St. Marks Bistro, 2015 WL 7271747, at *4 (S.D.N.Y. Nov. 6, 2015). This caution extends to so-called non-disparagement clauses, if such clauses prevent a plaintiff from making truthful sta tements concerning his employment, the lawsuit underlying the proposed settlement, or the settlement itself. See Weng v. T&W Rest., Inc., 2016 WL 3566849, at *4 (S.D.N.Y. June 22, 2016) (Moses, M.J.) (non-disparagement clause "must include a car ve-out for truthful statements about [a plaintiff's] experience in litigating [his] case") (internal quotation marks omitted; modifications in original).The parties are further cautioned that courts in this District ordinarily refuse to app rove FLSA settlements that include one-way or overbroad general releases. See, e.g., Lopez, 2016 WL 1319088, at *2; Pinguil v. We Are All Frank, Inc., 2018 WL 2538218 (S.D.N.Y. May 21, 2018) (Moses, M.J.). The parties are further cautioned that thi s Court's fairness review "extends to the reasonableness of attorneys' fees and costs." Fisher v. SD Protection, Inc., 948 F.3d 593, 606 (2d Cir. 2020). Any proposed award of fees and costs must be memorialized in the written se ttlement agreement, signed by the parties, and supported by copies of counsel's contingency fee agreement (if any) and time and expense records, properly authenticated. Id. at 600. In addition, the Court expects a detailed explanation of the basis for the award. "[T]he most critical factor in determining the reasonableness of a fee award is the degree of success obtained." Id. at 606 (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)) (internal quotation marks omitted). (Signed by Magistrate Judge Barbara C. Moses on 2/17/2021) (rj)

Case 1:19-cv-06789-AJN-BCM Document 41 Filed 02/17/21 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2/17/2021

NELSON ROSARIO,
Plaintiff,

19-CV-6789 (AJN) (BCM)

-againstEL NUEVO AMANECER REST. CORP., et
al.,

ORDER

Defendants.
BARBARA MOSES, United States Magistrate Judge.
This action has been referred to Judge Moses for general pre-trial management. (Dkt. No.
17.) Following Court-annexed mediation, the mediator has reported that the parties have reached
an agreement on all issues in this case (Dkt. No. 40), which includes claims brought under the Fair
Labor Standards Act (FLSA).
If the parties wish to consent to the jurisdiction of the undersigned magistrate judge for
review of their proposed settlement agreement for approval pursuant to Cheeks v. Freeport
Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), they shall do so no later than March 3, 2021.
Thereafter, no later than March 12, 2021 (and regardless of whether they have consented
to magistrate judge jurisdiction), the parties shall submit: (a) a joint letter demonstrating that the
settlement agreement is fair and reasonable and should be approved in light of the factors
enumerated in Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335-36 (S.D.N.Y. 2012); (b) a
copy of their fully executed settlement agreement, which will be placed on the public docket, see
Wolinsky, 900 F. Supp. 2d at 335; and (c) if plaintiffs' counsel seek an award of attorneys' fees and
costs, counsel's time and expense records, together with any contingency fee agreement in this
action.
The parties are cautioned that "it would be the very rare case, if any, where confidentiality
terms in a settlement agreement would be appropriate in resolving a wage-and-hour lawsuit given
the policy concerns underlying the FLSA." Souza v. 65 St. Marks Bistro, 2015 WL 7271747, at *4
(S.D.N.Y. Nov. 6, 2015). This caution extends to so-called non-disparagement clauses, if such
clauses prevent a plaintiff from making truthful statements concerning his employment, the lawsuit
underlying the proposed settlement, or the settlement itself. See Weng v. T&W Rest., Inc., 2016
WL 3566849, at *4 (S.D.N.Y. June 22, 2016) (Moses, M.J.) (non-disparagement clause “must
include a carve-out for truthful statements about [a plaintiff’s] experience in litigating [his] case”)
(internal quotation marks omitted; modifications in original).
The parties are further cautioned that courts in this District ordinarily refuse to approve
FLSA settlements that include one-way or overbroad general releases. See, e.g., Lopez, 2016 WL
1319088, at *2; Pinguil v. We Are All Frank, Inc., 2018 WL 2538218 (S.D.N.Y. May 21, 2018)
(Moses, M.J.).

Case 1:19-cv-06789-AJN-BCM Document 41 Filed 02/17/21 Page 2 of 2

The parties are further cautioned that this Court's fairness review "extends to the
reasonableness of attorneys' fees and costs." Fisher v. SD Protection, Inc., 948 F.3d 593, 606 (2d
Cir. 2020). Any proposed award of fees and costs must be memorialized in the written settlement
agreement, signed by the parties, and supported by copies of counsel's contingency fee agreement
(if any) and time and expense records, properly authenticated. Id. at 600. In addition, the Court
expects a detailed explanation of the basis for the award. "[T]he most critical factor in determining
the reasonableness of a fee award is the degree of success obtained." Id. at 606 (quoting Farrar v.
Hobby, 506 U.S. 103, 114 (1992)) (internal quotation marks omitted).
Dated: New York, New York
February 17, 2021

SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

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