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Chambery v. Tuxedo Junction, Inc.

United States District Court, W.D. New York

April 7, 2014

JEANNE CHAMBERY, BRYAN ALEXA, and CHRISTOPHER PEPERATO, on behalf of themselves and all other employees similarly situated, Plaintiffs,
v.
TUXEDO JUNCTION INC., Defendant

Page 416

For Jeanne Chambery, Plaintiff: Guy A. Talia, Patrick J. Solomon, LEAD ATTORNEYS, Michael J. Lingle, Jessica Lynne Witenko, Thomas & Solomon LLP, Rochester, NY.

For Denise Bidwell, John Brown, Thomas Debelak, Timothy Yagatich, Shannon Zmuda, Plaintiffs: Guy A. Talia, Jessica Lynne Witenko, Patrick J. Solomon, LEAD ATTORNEYS, Thomas & Solomon LLP, Rochester, NY.

For Lauren Bonilla, Carlos Peredo, Thomas Perry, Bryan Alexa, Christopher Peperato, Christopher Wood, Bridgette Zeibak, Timothy Reitz, Anthony Fusco, Skyler Smart, Victoria Blair, Shannon Koch (Yungwirth), Abigail Swisher (Elardo), Brandon Davis, Dennis Burke, Kristina Zauner, Plaintiffs: Jessica Lynne Witenko, LEAD ATTORNEY, Thomas & Solomon LLP, Rochester, NY.

For Tuxedo Junction Inc., Defendant: Patricia Gillen, LEAD ATTORNEY, Duke Holzman Photiadis & Gresens, LLP, Buffalo, NY.

Page 417

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

Presently before the Court is the parties' Joint Motion for Preliminary Approval of Settlement of the above-captioned matter.

I. Background and Procedural History

Plaintiffs Jeanne Chambery, Bryan Alexa, and Christopher Peperato (" Plaintiffs" )[1] bring this action for injunctive and declaratory relief and monetary damages on behalf of themselves and all other similarly situated employees and former employees of Defendant Tuxedo Junction Inc. (" Defendant" ) alleging violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (" FLSA" ) and related state law claims. (Dkt. 73-2 at ¶ 1).

Plaintiffs allege that Defendant failed to pay statutorily required overtime to employees in various management roles at all Tuxedo Junction operated locations throughout New York, Pennsylvania, and Ohio. (Dkt. 73-2 at ¶ 53). On November 30, 2012, Plaintiffs moved for an order certifying an FLSA collective class and providing for expedited notice to class members. (Dkt. 12). On April 17, 2013, the Court entered a stipulated order granting Plaintiffs' unopposed motion. (Dkt. 36).

The parties held two mediation sessions on June 13, 2013, and September 10, 2013, with mediator Paul L. Leclair, Esq. (Dkt. 66-1). The mediation sessions resulted in the parties entering into a settlement agreement in February 2014.

Page 418

The parties jointly moved for preliminary approval of the settlement agreement, for preliminary certification of three settlement classes (the " Collective Class," the " New York Rule 23 Class," and the " Pennsylvania and Ohio Rule 23 Class" ), for appointment of Plaintiffs' counsel as class counsel, and for approval of the parties' proposed notice to the class. (Dkt. 64). The Court held a preliminary fairness hearing on March 6, 2014. (Dkt. 70). At the preliminary fairness hearing, the Court and the parties discussed numerous aspects of the proposed settlement and the proposed notice to the settlement classes, including: (1) the lack of a named plaintiff from Pennsylvania or Ohio; and (2) whether the proposed notice could be modified so as to clarify and provide additional information.

The parties entered into a Revised Joint Stipulation of Class Settlement and Release in March 2014 (hereinafter " the Settlement Agreement" ). (Dkt. 73-1). The Settlement Agreement addresses the issues discussed at the preliminary fairness hearing conducted on March 6, 2014. In particular, the Settlement Agreement calls for the complaint to be amended to add named plaintiffs from Ohio and Pennsylvania and assert claims for violation of the respective wage and hour statutes of those states, for three Rule 23 subclasses to be certified, and for the proposed notice to be modified so as to add additional information and highlight particularly important information.

II. Motion to Amend the Complaint

Plaintiffs move to amend the complaint to add named Plaintiffs Christopher Peperato and Bryan Alexa, and to add claims for violation of the respective wage and hour laws of Pennsylvania and Ohio. (Dkt. 71). Defendant does not oppose this motion.

" Leave to amend is to be freely given when justice requires." Freidus v. Barclays Bank PLC, 734 F.3d 132, 140 (2d Cir. 2013). Here, the purpose of the proposed amendments is to adequately protect the interests of class members from Pennsylvania and Ohio. Moreover, Fed.R.Civ.P. 15(a)(2) expressly provides that a party may amend its pleading " with the opposing party's written consent. . . ." Defendant has entered into the Settlement Agreement which expressly provides that " [t]he parties agree that . . . counsel shall file, pursuant to Fed.R.Civ.P. 15(a)(2), an Amended Complaint." (Dkt. 73-1 at ¶ 2). Under these circumstances, amendment is appropriate.

On or before April 14, 2014, Plaintiffs shall file the amended complaint attached as Exhibit B to the Declaration of Patrick J. Solomon dated March 28, 2014. (Dkt. 73-2). Defendant shall file an answer to the amended complaint within 14 days of its filing.

III. Preliminary Approval of the Settlement Agreement

Based upon the Court's review of all the papers submitted in connection with the Motion for Preliminary Approval, the Court grants preliminary approval of the settlement memorialized in the Settlement Agreement. (Dkt. 73-1).

The Settlement Agreement creates a fund of $200,000.00 to settle this action and prescribes the method of allocating that settlement fund among the various putative class and collective action members. ( Id. at ¶ 25). The settlement fund covers class members' awards, enhancement payments, expenses and costs, interest, attorneys' fees, and the costs of administration of the settlement and claims process. ( Id. )

The Settlement Agreement selects Rust Consulting as the claims administrator.

Page 419

( Id. at ¶ 28). The Settlement Agreement provides that class members who timely return a claim form will be paid according to a calculation that takes into account the number of weeks the class member was employed by Defendant in an applicable manager role. ( Id. at ¶ 29(a)). The Settlement Agreement also provides for payment of up to $66,666.67 in attorneys' fees and a payment of up to $7,000 for actual litigation costs and reasonable expenses. These payments are to be made from the settlement fund. ( Id. at ¶ 26).

The approval of a proposed class action settlement is a matter of discretion for the trial court. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995). A proposed settlement should be approved if the court determines " that the settlement, taken as a whole, is fair, reasonable, and adequate." Id. The court must give " proper deference to the private consensual decision of the parties" in exercising its discretion. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998).

Preliminary approval is the first step in the class action settlement process. It allows notice to issue to the class and for class members to object or opt-out of the settlement. After the notice period, the Court will be able to ...


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