Grant v. Elmax Builders Supply, LLC
ORDER: Accordingly, no later than May 11, 2021, the parties shall either: (a) file a revised settlement agreement with a mutual non-disparagement clause that provides for the required carve out or (b) file a joint letter withdrawing their motion for settlement approval and stating their intent to proceed with litigation. So Ordered. (Signed by Magistrate Judge Stewart D. Aaron on 4/27/2021) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Elmax Builders Supply, LLC,
STEWART D. AARON, United States Magistrate Judge:
Before the Court is the parties' joint letter, dated April 23, 2021 (ECF No. 28), seeking
approval of their proposed Settlement Agreement & Release (the “Agreement”) (ECF No. 28-1).
For the reasons set forth below, the Court cannot approve the Agreement as written.
Paragraph 7 of the Agreement provides that Plaintiff “expressly agrees to refrain from
disparaging, defaming, or criticizing the Released Parties, including, without limitation, making
any statement, oral or written, which portrays Elmax, its affiliates, owners, officers, agents,
representatives and management employees or any of the Released Parties in an unfavorable
light or subjects any of them to scorn, obloquy or ridicule.” (Agmt. ¶ 7.) While the Agreement
does contain a similar non-disparagement clause by Defendants (see Agmt. ¶ 8), it does not
include a carve-out for truthful statements about Plaintiff's experience litigating his case. See
Mendoza v. Kidz Korner of New Rochelle Inc., No. 20-CV-05761 (JLC), 2021 WL 738840, at *1
(S.D.N.Y. Feb. 24, 2021) (non-disparagement provision must be mutual and include carve-out for
truthfulness). Without such a carve-out, the “provision contravenes the remedial purposes of the
[Fair Labor Standards Act] and is not fair and reasonable.” Howard v. Don Coleman Advert. Inc.,
No. 16-CV-5060 (JLC), 2017 WL 773695, at *2 (S.D.N.Y. Feb. 28, 2017) (internal citations and
Accordingly, no later than May 11, 2021, the parties shall either: (a) file a revised
settlement agreement with a mutual non-disparagement clause that provides for the required
carve out or (b) file a joint letter withdrawing their motion for settlement approval and stating
their intent to proceed with litigation.
New York, New York
April 27, 2021
STEWART D. AARON
United States Magistrate Judge
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