Rivas v. MLJ Painting Corp.

Filing 12

ORDER: Accordingly, it is hereby ORDERED that, on or before September 30, 2024, the parties must submit the settlement agreement to the Court along with a joint letter explaining the basis for the proposed settlement and why, if parties conte mplate dismissal under Rule 41, it should be approved as fair and reasonable, with reference to the factors discussed in Wolinsky. See Wolinsky, 900 F. Supp. 2d at 335-36. The letter should also address, if applicable, any incentive payments to th e plaintiff and any attorney's fee award to plaintiff's counsel (with documentation to support the latter, if appropriate), as further set forth herein. If the settlement agreement contains any of these provisions, the parties' join t letter should also indicate whether they want the Court, in the alternative, to consider for approval the settlement agreement with the provision(s) stricken (in which case, the Court would, absent good cause, docket both the parties joint lette r and the settlement agreement itself -notwithstanding any confidentiality provision). Cf. Fisher v. SD Protection Inc., 948 F.3d 593, 606 (2d Cir. 2020) (holding that a district court may approve or reject a settlement of FLSA claims but may not modify the agreement itself). All pending deadlines in this case, are adjourned sine die. The initial pretrial conference scheduled for September 5, 2024 is hereby CANCELED. SO ORDERED. (Signed by Judge Arun Subramanian on 8/30/2024) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MAURO RIVAS,
Plaintiff,
-against-

24-CV-4205 (AS)

MLJ PAINTING CORP.,

ORDER
Defendant.

ARUN SUBRAMANIAN, United States District Judge:
By letter filed on August 29, 2024, see ECF No. 11, the Court was advised that the parties
have reached a settlement in principle. As the parties acknowledge, Court approval is required for
settlement of Fair Labor Standards Act (FLSA) claims where dismissal pursuant to Rule 41 of the
Federal Rules of Civil Procedure is contemplated. See Cheeks v. Freeport Pancake House, Inc.,
796 F.3d 199 (2d Cir. 2015).1
Accordingly, it is hereby ORDERED that, on or before September 30, 2024, the parties
must submit the settlement agreement to the Court along with a joint letter explaining the basis for
the proposed settlement and why, if parties contemplate dismissal under Rule 41, it should be
approved as fair and reasonable, with reference to the factors discussed in Wolinsky. See Wolinsky,
900 F. Supp. 2d at 335-36. The letter should also address, if applicable, any incentive payments
to the plaintiff and any attorney’s fee award to plaintiff’s counsel (with documentation to support
the latter, if appropriate).
Now that the parties have reached a settlement, they have the option to consent to
proceed for all purposes before the assigned Magistrate Judge (the appropriate form for which
is available at http://nysd.uscourts.gov/node/754), in which case the assigned Magistrate Judge
would decide whether to approve the settlement. If all parties consent to proceed before the
assigned Magistrate Judge, they should file a fully executed version of the consent form on the
docket on or before the date set forth above.
In addition, the parties are advised that the Court will not approve any settlement agreement
containing any of the following provisions:
•

a confidentiality provision, unless the parties can show that there are reasons, specific to
the case, sufficient to overcome the common law right of access to judicial documents. See
id. at 337-41 (explaining the common law right of public access as it relates to settlement
agreements in FLSA cases); see also Sanz v. Johny Utah 51 LLC, 2015 WL 1808935, at
*2 (S.D.N.Y. Apr. 20, 2015);

•

a release or waiver provision that releases or waives claims that have not accrued or claims
1

Judicial approval is not required for a settlement of FLSA claims by way of a Rule 68(a) offer of
judgment. See Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 414 (2d Cir. 2019).

unrelated to wage-and-hour matters, unless the parties can show that there are reasons,
specific to this case, justifying such a broad release. See, e.g., Lopez v. Nights of Cabiria,
LLC, 96 F. Supp. 3d 170, 181 (S.D.N.Y. 2015); or
•

a clause that bars a plaintiff from making negative statements about a defendant unless it
includes a carve-out for truthful statements about a plaintiff’s experience in litigating his
case, or unless the parties can show that there are reasons, specific to this case, justifying a
non-disparagement clause without such a carve-out. See, e.g., Zapata v. Bedoya, 2016 WL
4991594, at *2 (E.D.N.Y. Sept. 13, 2016).

If the settlement agreement contains any of these provisions, the parties’ joint letter should
also indicate whether they want the Court, in the alternative, to consider for approval the settlement
agreement with the provision(s) stricken (in which case, the Court would, absent good cause,
docket both the parties’ joint letter and the settlement agreement itself — notwithstanding any
confidentiality provision). Cf. Fisher v. SD Protection Inc., 948 F.3d 593, 606 (2d Cir. 2020)
(holding that a district court may approve or reject a settlement of FLSA claims but may not modify
the agreement itself).
All pending deadlines in this case, are adjourned sine die. The initial pretrial conference
scheduled for September 5, 2024 is hereby CANCELED.
SO ORDERED.
Dated: August 30, 2024
New York, New York

_______________________________
ARUN SUBRAMANIAN
United States District Judge

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