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Virginia M. Elliot v. Leatherstocking Corporation

December 4, 2012

VIRGINIA M. ELLIOT, DEBORAH KNOBLAUCH, JON FRANCIS, LAURA RODGERS AND JOHN RIVAS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
LEATHERSTOCKING CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiffs are employed by defendant Leatherstocking Corporation as room attendants and food and beverage service personnel. (Dkt. No. 80). In August 2010, plaintiffs commenced this action alleging that putative class members were not paid overtime wages and minimum wage as required by 29 U.S.C. § 201-219, the Fair Labor Standards Act ("FLSA") and New York's Labor Law. Plaintiffs subsequently filed and served two amended complaints.

After conducting discovery, the parties participated in two Court supervised settlement conferences and reached a settlement in the amount of $550,000.00 in satisfaction of all claims including attorneys' fees, costs, enhancement payments, smaller additional payments to FLSA plaintiffs and costs relating to claims administration. From the gross settlement amount, plaintiffs propose that $24,396.21 be allocated to the settlement administrator, $5,000.00 to the five named plaintiffs, $127,475.00 to class plaintiffs' counsel, $10,000.00 to be divided among the 32 Class Members who previously filed FLSA claims, and $100,000.00 to be divided among all Class Members who do not exclude themselves and who do not submit a valid claim form*fn1 . Plaintiffs and each class member would receive a pro rata share of the remaining settlement proceeds of $263,128.79 as set forth in the Settlement Agreement. No portion of the settlement reverts to defendant.

On September 13, 2012, the Court entered an Order preliminarily approving the settlement subject to the objections of class members and upon final review of the court. The Court also conditionally certified the settlement class and appointed class counsel. The court approved the Notice of Proposed Action Settlement to all class members and appointed Rust Consulting Inc. as the claims administrator. (Dkt. No. 89).

On October 9, 2012 , a claims administrator sent Notice to 660 class members informing them of their right to submit a claim form or opt out of the settlement by December 8, 2012. The Notice also informed the class that defendant agreed to pay $550,000.00 to settle the lawsuit and also advised that class counsel intends to seek no more than 20.45% of the settlement amount, or $112,47.005, for attorneys fees for the attorneys prosecuting the lawsuit on behalf of the class; no more than $15,000.00 to pay for the expenses and costs incurred by the attorneys prosecuting the Lawsuit on behalf of the class; no more than $25,000 in total, for enhancement payments of $5,000 each to the five named plaintiffs for their assistance in prosecuting this case; and an amount anticipated to be no more than $25,000 for the costs of administering the settlement.*fn2

To date, Rust has received 204 claim forms for the settlement and two written opt out requests. See Court Ex. 1. No class member has objected and the last day for serving and filing such objections was November 13, 2012. Class members have until December 8, 2012 to file claims. To date, 90% of class members have been notified.

On November 13, 2012, plaintiffs filed their motion for final approval of a class action settlement. (Dkt. No. 93). On the same day, plaintiffs' counsel filed a motion for an award of attorneys' fees and reimbursement of expenses. (Dkt. No. 94). Defendant does not oppose the motions.

On November 28, 2012, the Court held a Fairness Hearing. No class member appeared at the hearing to object to the settlement or request exclusion from the class. Class Counsel indicated that he anticipates that a total of 40% of the class members will file claims.

The Court, having read all submissions including the Settlement Agreement, Notice, Affidavits, Memoranda of Law and having considered the oral argument presented at the Fairness Hearing and the complete record in this matter, and for good cause shown, resolves the issues as follows.

DISCUSSION

I. Class Certification

The Court certifies the following class under Federal Rule of Civil Procedure 23(e), for settlement purposes:

All individuals who are listed on the allocation schedule, Exhibit "1" to the Stipulation*fn3 , in respect to any of the claims asserted in the plaintiffs' third amended complaint and arising from such persons' employment by defendant from August 2, 2004 to June 27, 2012, and in the event any such persons are deceased or legally adjudicated incompetents, their legal representatives or heirs at law Plaintiffs meet all of the requirements for class certification under Fed.R.Civ.P. 23(a) and (b)(3). "[N]umerosity is presumed at a level of 40 members . . ." Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995). Plaintiffs satisfy Fed.R.Civ.P. 23(a)(1) because there are approximately 660 class members and, thus, joinder is impracticable. See Johnson v. Brennan, 2011 WL 4357376, at *4 (S.D.N.Y. 2011) (the plaintiffs easily satisfied the numerosity requirement because there were approximately 394 class members).

The proposed class also satisfies Fed.R.Civ.P. 23(a)(2), the commonality requirement. All class members raise common issues concerning defendant's failure to pay overtime, minimum wages, and properly distribute service charges.

Plaintiffs satisfy Federal Rule of Civil Procedure 23(a)(3), typicality, because all class members' claims are based on the same factual and legal theories. Moreover, all class members suffered the same injury. See McMahon v. Olivier Cheng Catering and Events, LLC., 2010 WL 2399328, at *2 (S.D.N.Y. 2010) (the class members sustained the same injury ...


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