Cunningham et al v. Suds Pizza, Inc. et al

Filing 37

ORDER resolving 28 Motion to Certify Class; granting 34 Motion to Certify Class. A final settlement hearing shall be held on 3/17/17 at 1:00 p.m. Moving papers for final settlement and attorneys' fees, if any, due by 2/28/17. Signed by Hon. Jonathan W. Feldman on 12/2/16. (BJJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ADAM CUNNINGHAM, ALEX CHEFALO, and
REMO PAGLIA, et al.,
Plaintiffs,

ORDER
15-cv-6462

v.
SUDS PIZZA, INC., MARK’S PIZZERIA,
INC., and MARK S. CRANE,
Defendants.

The

Court

has

considered

the

joint

stipulation

of

settlement and release executed by the parties (the “Settlement
Agreement”);

plaintiffs’

unopposed

preliminarily

granting

conditional

approving

the

Settlement

Agreement

motion

and

for

class
notice

an

Order

certification,
materials,

and

setting a final settlement hearing (Docket # 34); and all other
papers filed in this action.

The matter having been submitted

and good cause appearing, the Court finds as follows:
1.

All defined terms contained herein shall have the same

meanings as set forth in the Settlement Agreement;
2.

The parties, through their counsel of record in this

litigation, have reached an agreement to settle all claims;
3.

The Settlement Agreement appears on its face to be

fair, reasonable, and adequate, and to have been the product of
serious,

informed,

between the parties.

and

extensive

arm’s-length

negotiations

In making this preliminary finding, the

Court considered the nature of the claims, the relative strength
of plaintiffs’ claims, the amounts and kinds of benefits to be
paid if the settlement is approved after notice to the parties’
proposed

classes

set

forth

in

the

Settlement

Agreement

(the

“Settlement Class”), the allocation of settlement proceeds among
its

members,

and

the

fact

that

a

settlement

represents

a

compromise of the parties’ respective positions rather than a
result of a finding of liability at trial.
Court

preliminarily

finds

that

the

Accordingly, the

Settlement

Agreement

was

purposes

of

entered into in good faith;
4.

The

preliminarily
effect

on

Court

concludes

approving

this

this

litigation

that,

for

settlement,
should

the
and

the

with

proposed

no

other

Settlement

Agreement not finally be approved or should its effective date
not

occur,

the

certification

Settlement

under

Rule

Class
23

of

meets
the

the

requirements

Federal

Rules

of

for

Civil

Procedure and a collective action under Section 216(b) of the
Fair Labor Standards Act (“FLSA”): (a) the Settlement Class is
ascertainable and so numerous that joinder of all members of the
class is impracticable; (b) there are questions of law or fact
common

to

the

Settlement

Class,

and

there

is

a

well-defined

community of interest among members of the Settlement Class with
respect to the subject matter of the litigation; (c) the claims
of plaintiffs are typical of the claims of the members of the
Settlement

Class;

(d)

named

plaintiffs

will

fairly

and

adequately protect the interests of the Settlement Class; (e) a
class

action

is

superior

to

other

available

methods

for

an

efficient adjudication of this controversy; (f) the counsel of
record for the plaintiffs are qualified to serve as counsel for
the Settlement Class; (g) common issues will likely predominate
over individual issues; and (h) Settlement Class members are
similarly situated;
5.

The moving parties also have presented to the Court

for review the stipulated Settlement Agreement.
Agreement

proposes

reasonableness

a

and

settlement
meets

the

that

is

The Settlement

within

requirements

the

for

range

of

preliminary

approval, and;
6.

The moving parties have presented to the Court for

review a plan to provide notice to the Settlement Class of the
terms of the settlement and the various options the Settlement
Class

has,

including,

Settlement

Class

object

the

to

information

members

proposed

from

among
to

other
opt-out

settlement,

counsel.

The

things,

the

option

of

the

class

and

to

obtain

notice

consistent with the Settlement Agreement.

will

be

for

action,

to

additional
distributed

The method for notice

proposed by the settling parties is the best practicable under
the circumstances, consistent with Fed. R. Civ. P. 23(c)(2)(B).
Good cause appearing therefore, it is hereby
ORDERED
approved;

that

the

Settlement

Agreement

is

preliminarily

ORDERED
Settlement

that

the

Agreement,

Settlement
is

hereby

Class,

as

defined

provisionally

in

certified

the
under

Fed. R. Civ. P. 23, and conditionally certified under the FLSA;
ORDERED

that

notice

of

the

proposed

settlement

and

the

rights of Settlement Class members to opt-out of the settlement
and/or

to

become

a

participating

claimant

shall

be

given

by

issuance of publication notice consistent with the terms of the
Settlement Agreement within thirty days of the entry of this
Order;
ORDERED that a Settlement Hearing shall be held before this
Court on March 17, 2017, at 1:00 p.m. in the United States
District Court for the Western District of New York, 100 State
Street, Rochester, New York 14614.

The Settlement Hearing is

scheduled at least 100 days from the date of this Order in
accordance
U.S.C.

§

with

the

1715(d),

Class

and

Action

defendants

Fairness
shall

Act

cause

(“CAFA”),
to

serve

28
the

required CAFA notices within ten days of the date of this Order.
In accordance with Fed. R. Civ. P. 23(e), the Settlement Hearing
is

scheduled

finally

for

whether

the
this

following
litigation

purposes:
satisfies

(1)

to

the

determine
applicable

prerequisites for class action treatment of a settlement class;
(2)

to

determine

whether

the

proposed

Settlement

Agreement,

including the proposed plan of allocation, is fair, reasonable,
and adequate and should be granted final approval by the Court;
(3) to finally determine whether class counsel’s application for

an

award

of

attorneys’

fees

and

costs,

if

any,

is

fair,

reasonable, and adequate and should be approved by the Court;
and (4) to rule upon such other matters as the Court may deem
appropriate.
(a)

To that end:

Written objections by Settlement Class members to the

proposed settlement will be considered if received by the
Claims Administrator within forty-five days of the issuance
of class notice;
(b)

At the Settlement Hearing, class members may be heard

orally

in

support

of

or,

if

they

have

timely

submitted

written objections, in opposition to the settlement;
(c)

Counsel

for

the

parties

should

be

prepared

at

the

hearing to respond to objections filed by class members and
to

provide

other

information

as

appropriate,

bearing

on

papers

in

whether or not the settlement should be approved;
ORDERED

that

class

counsel

shall

file

moving

support of final approval of the Settlement Agreement no later
than February 28, 2017;
ORDERED that the deadline to make a motion for attorneys’
fees and costs is February 28, 2017.

In support of any such

motion, counsel is directed to include, with detail, (1) how the
settlement was reached; (2) the amount of any requested fees;
(3) the method used to calculate such fees; (4) what specific
work was performed for those fees; (5) a copy of any written
retainer agreement; and (6) why the requested fees are fair and

reasonable

in

light

of

(a)

the

time

and

labor

expended

by

counsel, (b) the magnitude and complexity of the litigation, (c)
the risk of the litigation, (d) the quality of representation,
(e) the degree of success obtained on behalf of the plaintiffs
in the settlement, and (f) public policy.

Absent permission of

the Court, any attorneys’ fee application must be supported by
copies

of

contemporaneously

kept

time

and

billing

records

providing detail of the specific work performed and the time
spent for each entry.

For any non-legal work (filing, mailing,

copying, etc.) performed by an attorney, counsel must explain
why an attorney performed the task;
ORDERED that, in the event that the settlement is finally
approved

by

Settlement

this

Class

Court
members

and

the

will

be

effective

date

occurs,

all

deemed

have

forever

and

to

fully released and discharged all claims set forth in Paragraphs
21 and 22 of the Settlement Agreement (“the Release”).

The

Release will apply to each and every Settlement Class member, as
against

the

released

parties,

with

the

exception

of

those

Settlement Class members who submit valid and timely Opt-Out
Forms

in

accordance

with

the

Settlement

Agreement

and

class

notice instructions; and,
ORDERED that, in the event that the Court does not finally
approve the Settlement Agreement or the effective date does not
occur for any reason whatsoever, the Settlement Agreement shall
be deemed null and void and shall have no effect.

SO ORDERED.

/s/Jonathan W. Feldman___
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: December 2, 2016
Rochester, New York