Pacifico Reveliu et al v. 910 Seventh Ave Rest LLC et al
ORDER: For the reasons stated above, I find that the overbroad non-disparagement clause in the proposed settlement agreement renders the agreement not fair and reasonable. Accordingly, the parties' request that I approve the proposed settlement agreement is DENIED without prejudice. The parties may proceed by either: Filing a revised proposed settlement agreement within twenty-one (21) days of the date of this Order that cures the deficiencies discussed above and any other terms that are n ot appropriate under the FLSA; or Filing a joint letter within twenty-one (21) days of the date of this Order that indicates the parties' intention to abandon settlement, at which point I will set a date for a status conference. SO ORDERED. (Signed by Judge Vernon S. Broderick on 1/07/2022) (ama)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FERNANDA PACIFICO REVELIU,
910 SEVENTH AVE REST LLC, et al.,
VERNON S. BRODERICK, United States District Judge:
The parties have advised me that they have reached a settlement agreement in this Fair
Labor Standards Act (“FLSA”) case. (Doc. 30.) Parties may not privately settle FLSA claims with
prejudice absent the approval of the district court or the Department of Labor. See Cheeks v.
Freeport Pancake House, Inc., 796 F.3d 199, 200 (2d Cir. 2015). In the absence of Department of
Labor approval, the parties must satisfy this Court that their settlement is “fair and reasonable.”
Velasquez v. SAFI-G, Inc., 137 F. Supp. 3d 582, 584 (S.D.N.Y. 2015). Because I find that the
settlement agreement contains an overbroad non-disparagement clause that renders the agreement
not fair and reasonable, the parties’ request that I approve their settlement agreement is DENIED.
To determine whether a settlement is fair and reasonable under the FLSA, I “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 respective claims and defenses; (3) the
seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the
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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) (internal
quotation marks omitted).
“In addition, if attorneys’ fees and costs are provided for in the settlement, district courts
will also evaluate the reasonableness of the fees and costs.” Fisher v. SD Prot. Inc., 948 F.3d 593,
600 (2d Cir. 2020). In requesting attorneys’ fees and costs, “[t]he fee applicant must submit
adequate documentation supporting the [request].” Id. The Second Circuit has described a
presumptively reasonable fee as one “that is sufficient to induce a capable attorney to undertake the
representation of a meritorious civil rights case.” Restivo v. Hessemann, 846 F.3d 547, 589 (2d Cir.
2017) (internal quotation marks omitted). A fee may not be reduced “merely because the fee would
be disproportionate to the financial interest at stake in the litigation.” Fisher, 948 F.3d at 602
(quoting Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005)). An award of costs
“normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which
are normally charged fee-paying clients.” Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818
F.2d 278, 283 (2d Cir. 1987) (internal quotation marks omitted).
“When a district court concludes that a proposed settlement in a FLSA case is unreasonable
in whole or in part, it cannot simply rewrite the agreement, but it must instead reject the agreement
or provide the parties an opportunity to revise it.” Fisher, 948 F.3d at 597.
Pursuant to my Order of July 16, 2021, (Doc. 26), the parties submitted a letter detailing
why they believed the settlement reached in this action, and the contemplated attorneys’ fees, were
fair and reasonable, (Doc. 29). On December 13, 2021, the parties submitted a second letter,
explaining that the parties had come to a revised agreement due to Defendants’ changing “financial
situation.” (Doc. 30.) I took the new agreement under advisement. (Doc. 31.) I have
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independently reviewed the revised settlement agreement and the supporting evidence in order to
determine whether the terms of the settlement agreement are fair, reasonable, and adequate. I
believe that they are not, and therefore do not approve the parties’ settlement agreement.
I first consider the settlement amount. The agreement provides for the distribution to
Plaintiff of $65,000, inclusive of attorneys’ fees and expenses. (Doc. 30, at 2.) Plaintiff did not
explicitly total her estimated damages, but instead attached a spreadsheet listing projected amounts
in various categories. (See Doc. 30-3.) It appears Plaintiff believes she would be entitled to
$310,744 for unpaid wages and overtime, assorted violations, liquidated damages, front pay, and
compensation for emotional distress, among other things. (See id.) While the settlement amount is
therefore only a fraction of the total amount Plaintiff claims is owed to her, the parties argue that
this settlement is fair in light of the litigation and collection risks specific to this case. In particular,
the parties note in their December 13, 2021 letter that Defendants have a “limited ability to pay a
settlement in light of the financial situation of restaurants following the Coronavirus pandemic.”
(Doc. 30, at 2.) The settlement agreement would ensure that Plaintiff recovers a sizeable amount
from Defendants, in a lump sum. (Id.)
I also note that a large portion of Plaintiff’s estimated damages, $125,000, is for “emotional”
damages related to Plaintiff’s retaliation claim. (Doc. 30-3, at 2.) It is especially difficult to
estimate the likelihood of recovering such damages with any certainty. However, Plaintiff only
claims that she is entitled to $15,836 for unpaid wages and overtime. (Id. at 1.) Therefore, even
when setting aside attorneys’ fees and expenses, discussed infra, the proposed award would more
than compensate Plaintiff for her estimated unpaid wages and overtime.
The litigation risks and potential costs of continued litigation militate in favor of settlement
of this case. The parties engaged in arm’s length negotiation at mediation through the Southern
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District of New York’s Mediation program. (See Doc. 8.) Finally, there is no basis for me to
believe that there was any fraud or collusion involved in the settlement. Therefore, based on the
representations of the parties and my own analysis of the totality of the circumstances present here,
I find that the settlement amount appears to be a fair and reasonable given the circumstances of this
I turn next to the settlement agreement’s mutual non-disparagement clause. Courts in this
District routinely reject FLSA settlement agreements that contain non-disparagement provisions
with no carve-out for truthful statements about the litigation. E.g., Lopez v. Nights of Cabiria, LLC,
96 F. Supp. 3d 170, 180 n.65 (S.D.N.Y. 2015) (refusing to approve settlement that contained nondisparagement provision without a carve-out for truthful statements); Baikin v. Leadership Sheet
Metal, Inc., No. 16 Civ. 8194 (ER), 2017 WL 1025991, at *1 (S.D.N.Y. Mar. 13, 2017) (same);
Lazaro-Garcia v. Sengupta Food Servs., No. 15-CV-4259 (RA), 2015 WL 9162701, at *3
(S.D.N.Y. Dec. 15, 2015) (same); Zapata v. Bedoya, No. 14-CV-4114 (SIL), 2016 WL 4991594, at
*2 (E.D.N.Y. Sept. 13, 2016) (same). Courts are particularly wary of “provisions that serve to
prevent the spread of information about FLSA actions to other workers who could then use that
information to vindicate their own statutory rights.” Zapata, 2016 WL 4991594, at *2 (internal
quotation marks omitted).
The settlement agreement requires Plaintiff to agree not to “engage in any conduct in any
forum that is intended to disparage Release[d] Parties” and not to “defame or induce others to
disparage and/or defame Released Parties in any forum, including . . . in any online forum.” (Doc.
30-1, at ¶ 6.) The provision is mutual; the Released Parties also agree not to “engage in any conduct
in any forum that is intended to disparage [Plaintiff] or induce others to defame or disparage her in
any forum, including . . . online.” (Id.) The settlement agreement also requires that Released
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Parties provide only Plaintiff’s “dates of employment, title held and final compensation” in
response to any reference check. (Id.) However, the provision contains no carve-out allowing
Plaintiff to make truthful statements about her involvement in this litigation. Although the
provision is mutual, “it nonetheless impermissibly restricts Plaintiff[’s] ability to communicate with
others in an effort to vindicate their statutory rights.” Zapata, 2016 WL 4991594, at *2 n.2. As a
result, this provision is impermissibly chilling. I will not approve a settlement agreement
containing a non-disparagement clause with no carve-out for truthful statements.
I next consider the attorneys’ fees contemplated in the settlement agreement. The attorneys’
fees sought are $21,730.38, representing “one third of the settlement fund after costs of $418.49.”
(Doc. 30, at 3.) As an initial matter, courts regularly approve attorneys’ fees of one-third of the
settlement amount in FLSA cases. See Pinzon v. Jony Food Corp., No. 18-CV-105 (RA), 2018 WL
2371737, at *3 (S.D.N.Y. May 24, 2018) (“When using a ‘percentage of the fund’ approach, ‘courts
regularly approve attorney’s fees of one-third of the settlement amount in FLSA cases.’” (quoting
Meza v. 317 Amsterdam Corp., No. 14-CV-9007 (VSB), 2015 WL 9161791, at *2 (S.D.N.Y. Dec.
14, 2015)). While this case is still at an early stage, it is clear that Plaintiff’s counsel has expended
time on at least the following: drafting and filing the complaint; exchanging initial discovery;
preparing for and attending the mediation; and negotiating and executing the settlement. (See Doc.
30-5.) Moreover, because courts in this District typically approve hourly rates of approximately
$175 to $450 for attorneys working on FLSA litigation, a one-third award represents appropriate
compensation for the nearly 100 hours put into this case. See, e.g., Trustees of N.Y.C. Dist. Council
of Carpenters Pension Fund v. Richie Jordan Constr. Inc., No. 15-CV-3811, 2015 WL 7288654, at
*5 (S.D.N.Y. Nov. 17, 2015) (awarding fees to Plaintiff’s counsel of $175/hour of junior associate
time); Anthony v. Franklin First Fin., Ltd., 844 F. Supp. 2d 504, 507-08 (S.D.N.Y. 2012) (awarding
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fees to Plaintiffs’ counsel’s firm at rates of $175/hour for associate work and $350/hour for partner
work); Ochoa v. Prince Deli Grocery Corp., No. 18 CIV. 9417 (ER), 2021 WL 5235222, at *2
(S.D.N.Y. Nov. 8, 2021) (calling $450/hour the “prevailing maximum rate in the Southern
District”). Indeed, given that a senior associate with a rate of $350/hour billed 70.5 hours to this
case, and a paralegal with a rate of $100/hour billed 26.1 hours, the lodestar is $27,285, (see Doc.
30, at 3–4; Doc. 30-5), which means the requested $21,730.38 award is only a fraction of the
lodestar. Based on this analysis, I find the attorneys’ fees contemplated in the settlement agreement
to be fair and reasonable.
For the reasons stated above, I find that the overbroad non-disparagement clause in the
proposed settlement agreement renders the agreement not fair and reasonable. Accordingly, the
parties’ request that I approve the proposed settlement agreement is DENIED without prejudice.
The parties may proceed by either:
1. Filing a revised proposed settlement agreement within twenty-one (21) days of the date of
this Order that cures the deficiencies discussed above and any other terms that are not
appropriate under the FLSA; or
2. Filing a joint letter within twenty-one (21) days of the date of this Order that indicates the
parties’ intention to abandon settlement, at which point I will set a date for a status
January 7, 2022
New York, New York
Vernon S. Broderick
United States District Judge
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