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Abdellah Bouzzi, et al., On Behalf of Themselves Individually and On Behalf of All Other Similarly Situated Employees v. F&J Pine Restaurant

January 11, 2012

ABDELLAH BOUZZI, ET AL., ON BEHALF OF THEMSELVES INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED EMPLOYEES,
PLAINTIFFS,
v.
F&J PINE RESTAURANT, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION AND SUPPLEMENTAL REPORT AND RECOMMENDATION

On February 3, 2010, plaintiffs Abdellah Bouzzi, Luis Guaman, Raul Echevarria, Yolanda Castro, and Mario Ramalez (collectively "Plaintiffs") brought this action, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law § 190 et seq., on behalf of themselves and all others similarly situated, against defendants F & J Pine Restaurant Group, Charles Rose, Anthony Bastone, and five unnamed defendants (collectively "Defendants"), seeking damages for unpaid wages. (See Docket Entry No. 77, Amended Complaint.) On July 5, 2011, the parties informed the court that they had reached a tentative settlement of the matter. On July 6, 2011, the court referred the determination of the reasonableness of the proposed settlement agreement to United States Magistrate Judge Cheryl L. Pollak. On July 18, 2011, Defendants moved to file the proposed settlement agreement under seal. (See Docket Entry No. 152.) Plaintiffs did not oppose Defendants' motion. (See Docket Entry No. 153.)

After an in camera review of the proposed settlement agreement, the magistrate judge issued a Report and Recommendation ("R & R"),*fn1 dated August 19, 2011, recommending the settlement agreement be approved as fair and reasonable. However, the magistrate judge concluded the parties failed to overcome the presumption of public access generally accorded to FLSA settlements and, therefore, recommended that the motion to file the settlement agreement under seal be denied. (R & R at 8.) Further, as part of the R & R, the magistrate judge gave the parties leave to submit additional authority in support of Defendants' alternative request to seal the settlement agreement partially. (Id.)

On August 26, 2011, Defendants formally moved to seal the settlement agreement partially and provided additional argument in support of the motion. (See Docket Entry No. 156.) On September 2, 2011, Defendants objected to the portion of the R & R that recommended the settlement agreement not be filed under seal. (See Docket Entry No. 160, Defendants' Objection to that Part of the 8/19/11 Report and Recommendation Denying Defendants' Unopposed Motion to Seal the Settlement Agreement ("Def. Obj.").) On September 23, 2011, the magistrate judge issued a Supplemental Report and Recommendation ("Supp. R & R"), recommending Defendants' motion to seal the settlement agreement partially also be denied. No objections were filed to the Supp. R & R. For the reasons set forth below, the R & R and the Supp. R & R are adopted in their entirety. Accordingly, the FLSA settlement agreement is approved as fair and reasonable and Defendants' motions to file the agreement under seal, either in whole or in part, are denied.

I.Standard of Review

Where a party objects to a R & R, a district judge must make a de novo determination with respect to those portions of the R & R to which the party objects. See FED. R. CIV. P. 72(b);

United States v. Male Juvenile, 121 F. 3d 34, 38 (2d Cir. 1997). Portions of the R & R to which the parties have not objected are reviewed for clear error. See Orellana v. World Courier, Inc., 2010 WL 3861013, at *2 (E.D.N.Y. Sept. 28, 2010).The district court may then "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." FED. R. CIV. P. 72(b); see also 28 U.S.C. § 636(b)(1).

II.Discussion

A.Presumption of Public Access

Defendants, while largely ignoring the body of case law recognizing that the common law right of public access attaches to judicially supervised FLSA settlements, object to the magistrate judge's conclusion that the FLSA settlement agreement should not be filed under seal, either in whole or in part. (Def. Obj. at 2 (citing R & R at 5).) Defendants' objection is meritless.

Defendants, in their objection, failed to address or distinguish the abundant case law issued by district courts of this circuit which: 1) set forth the policy considerations animating the presumption of public access that attaches to FLSA settlements; 2) indicate the substantial showing a party must meet in overcoming this presumption; and 3) have overwhelmingly denied similar requests to seal FLSA settlement agreements. See, e.g, Joo v. Kitchen Table, Inc., 763 F. Supp. 2d 643 (S.D.N.Y. 2011); Mosquera v. Masada Auto Sales, Ltd., 2011 WL 282327 (E.D.N.Y. Jan. 25, 2011); Cortes v. Skytop Restaurant, Inc., 2010 WL 4910242 (S.D.N.Y. Nov. 17, 2010); Hens v. Clientlogic Operating Corp., 2010 WL 4340919 (W.D.N.Y. Nov. 2, 2010);

Xue Lian Lin v. Comprehensive Health Mgmt., 2009 WL 2223063 (S.D.N.Y. July 23, 2009); Le v. SITA Info. Networking Computing USA, Inc., 2008 WL 724155 (E.D.N.Y. March 13, 2008). Defendants instead suggest this court should be persuaded to seal the instant settlement by a number of slip opinions from district courts in the districts of Florida. These slip opinions have no precedential value as they are unpublished and unavailable on Westlaw. Further, some of them are no more that short ECF entries and none of them provide any reason or justification for their decision to seal FLSA settlements. (See Def. Obj. at 4.) District courts in this circuit, as well as in others, have declined to follow cases that granted requests to seal FLSA settlements but failed to provide reasons or authority for so doing. See Joo, 763 F. Supp. 2d at 645-46; Hens, 2010 WL 4340919, at *3; see also Kianpour v. Restaurant Zone, Inc., 2011 WL 3880463, at *2 (D.Md. Aug. 30, 2011). This court joins these district courts and, especially in light of the more developed case law, declines to follow the cases cited by Defendants as authority for sealing the instant settlement agreement.

Defendants imply throughout their objection, without justification or appropriate citation to legal authority, that the instant FLSA settlement agreement submitted to the court for judicial approval is "private" in nature. (See Def. Obj. at 2, 9.) While most settlement agreements are private, and, therefore, are not judicial documents subject to a presumption of public access, "FLSA cases are different." Hens, 2010 WL 4340919, at *2. The FLSA imposes "strict limits on an employee's ability to waive claims for fear that employers [will] coerce employees into settlement and waiver." Mosquera, 2011 WL 282327, at *1 (quoting Le, 2008 WL 724155, at *1). Accordingly, under the FLSA, an employee may not waive or settle claims for unpaid wages unless the settlement is: (1) supervised by the Secretary of Labor or (2) judicially stipulated and approved. Joo, 763 F. Supp. 2d at 644; Martinez v. Ragtime Foods of New York, Inc., 2011 WL 5508972, at *1 (E.D.N.Y. Nov. 10, 2011); Mosquera, 2011 WL 282327, at *1; Le, 2008 WL 724155, at *1; see also 29 U.S.C. § 216(c); D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 113 n.8 (1946).

Where, as here, the FLSA settlement is submitted to the court for approval, the approval process is a judicial act. Consequently, the settlement agreement is a judicial document to which the presumption of public access attaches. Joo,763 F. Supp. 2d at 644; Cepeda v. 251 Realty LLC, 2011 WL 5402917, at *1 (E.D.N.Y. Nov. 8, 2011); Mosquera, 2011 WL 282327, at *2; Xue Lian Lin, 2009 WL 2223063, at *1; see also Hens, 2010 WL 4340919, at *2 ("Numerous circuit and district courts have concluded that a settlement agreement submitted to the court for consideration and approval is a judicial record and, thus, the presumption of public access attaches."); Baker v. Dolgencorp, Inc., ------ F. Supp. 2d --------, 2011 WL 166257, at *2 (E.D.Va. 2011) ("It is undisputed that an FLSA settlement agreement, submitted to a court for judicial approval, is a judicial record that triggers the common law right of public access."). ...


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