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Alisha Silver, Individually and On Behalf of All Other Persons Similarly Situated v. 31 Great Jones Restaurant

January 24, 2013

ALISHA SILVER, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF,
v.
31 GREAT JONES RESTAURANT, D/B/A FIVE POINTS RESTAURANT, MARC MEYER, VICTORIA FREEMAN, AND JOHN DOES # 1-10, JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S. District Judge

Opinion and Order

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF BRONSON LIPSKY LLP AND GOTTLIEB & ASSOCIATES AS CLASS COUNSEL, AND APPROVAL OF PLAINTIFFS' PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION PROCEDURE

Plaintiff Alisha Silver, a former employee of 31 Great Jones Restaurant, doing business as Five Points Restaurant, brought this putative class action on behalf of herself and other similarly situated individuals for unpaid minimum wages, unpaid overtime compensation, and improper deductions from their wages pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and New York Labor Law (NYLL), N.Y.L.L. §§ 190 et seq. Plaintiff claimed that Five Points Restaurant, which is allegedly owned, operated, or controlled by Marc Meyer and Victoria Freeman (collectively, "Defendants"), willfully maintained a policy or practice wherein Defendants failed to pay minimum wages, overtime compensation, and spread-of-hours pay; failed to provide reimbursement for the purchase and cleaning of required uniforms; deducted meal credits from employees' wages for meals they did not eat; and failed to remit tips and gratuities to employees. [Dkt. No. 1].*fn1

Defendants answered the Complaint on December 30, 2011 and denied any liability or wrongdoing. [Dkt. No. 8]. The Parties thereafter "engaged in substantial . . . discovery" and "several arm's length settlement negotiations," (Lipsky Cert. ¶¶ 7, 14 [Dkt. No. 35]), and then agreed to refer this matter to Magistrate Judge Debra Freeman for settlement purposes. [Dkt. No. 29]. At a mediation session on July 24, 2012, the Parties agreed on the terms of a settlement, and subsequently entered into a Settlement Agreement dated October 10, 2012.*fn2

Before the Court now is the Parties' joint motion [Dkt. No. 33] requesting that the Court:

(I) Preliminarily approve the class-wide settlement under Rule 23(e);

(II) Certify this matter as a class action for settlement purposes under Federal Rule of Civil Procedure 23(b)(3);

(III) Approve the proposed "Notice of Pendency of Class Action, Proposed Settlement Thereof, Settlement Hearing and Right to Participate in the Settlement" and direct its distribution;

(IV) Schedule a fairness hearing; and

(V) Appoint Bronson Lipsky LLP and Gottlieb & Associates as class counsel under Rule 23(g)(1)(A).

For the reasons that follow, the Court grants each of the Parties' requests.

(I) Preliminary Approval of the Class Settlement

Based upon the Court's review of the Parties' Memorandum of Law in Support of the Parties' Joint Motion for Preliminary Approval of Settlement, the Certification of Douglas B. Lipsky (Plaintiff's counsel), and other relevant documents, the Court hereby preliminarily approves the Settlement Agreement as being fair, just, reasonable, and in the best interest of Plaintiff and the Settlement Class.

Review of a proposed class action settlement generally involves a two-step process: preliminary approval and a "fairness hearing." The Court first "reviews the proposed terms of settlement and makes a preliminary determination on the fairness, reasonableness and adequacy of the settlement terms." In re Initial Pub. Offering Sec. Litig., 226 F.R.D. 186, 191 (S.D.N.Y. 2005) (Scheindlin, J.) (citing Manual for Complex Litigation, Fourth ยง 21.632 (2004)). A court should grant preliminary approval "'[w]here the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives ...


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