United States District Court, S.D. New York
GABINO SANCHEZ, on behalf of himself, FLSA Collective Plaintiffs,
JMP VENTURES, L.L.C. et al., Defendants. And the Class, Plaintiff,
OPINION AND ORDER
GABRIEL W. GORENSTEIN, Magistrate Judge.
Gabino Sanchez sued JMP Ventures, L.L.C. d/b/a Harry's Italian, Hip at Murray Street, L.L.C. d/b/a Harry's Italian, Hip at RC, L.L.C. d/b/a Harry's Italian, Paul Lamas, Peter Poulakakos, Daniel McDonald, Michael Jewell, Dominick Antonelli, Gary Eggers, Robert Luckey, Raymond O'Sullivan, Victor Wright, Robert Padala, and Harry Poulakakos (collectively, "defendants") for violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and the New York Labor Law ("NYLL"). The case was brought as an FLSA collective action under 29 U.S.C. § 216(b) and a putative class action as to the NYLL claims under Fed.R.Civ.P. 23. The parties have consented to conduct all proceedings before the undersigned pursuant to 28 U.S.C. § 636(c).
Plaintiffs now seek an order certifying the settlement class; approving the class action settlement; approving the FLSA settlement; and awarding a service award to named plaintiff Sanchez, attorney's fees and costs to class counsel, and fees to the settlement administrator. For the following reasons, the motions are granted, with certain modifications detailed below.
The complaint alleges that Sanchez and other members of the FLSA collective and NYLL putative class were employed by defendants. See Complaint, filed Oct. 15, 2013 (Docket #1) ("Compl."), ¶¶ 13-14. It alleges that defendants failed to pay plaintiffs the wages and overtime they were entitled to; that they were improperly required to engage in non-tipped activities; and that defendants did not provide proper wage and hour notice, wage statements, or notice that they were taking a tip credit. See id. ¶¶ 18, 23, 31, 33-39. The proposed class has been defined to include defendants' current and former employees who worked as tipped employees at the defendants' restaurants from October 15, 2007 through February 28, 2014. See Order Granting Plaintiff's Unopposed Motion for Preliminary Approval of Class Settlement, Provisional Certification of the Settlement Class, Appointment of Plaintiff's Counsel as Class Counsel and Approval of Plaintiff's Proposed Notice of Pendency of Class Action and Proposed Settlement, dated Aug. 22, 2014 (Docket #41) ("Preliminary Approval Order"), ¶ 5.
On February 28, 2014, after extensive negotiations, the parties agreed to a settlement in principle. See Lee Decl. ¶¶ 11-14. That agreement was set out in a formal agreement (the "Settlement Agreement") in March 2014, id. ¶ 15, and was signed on May 28, 2014, see Settlement Agreement and Release (annexed as Ex. A to Declaration of C.K. Lee in Support of Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement and Approval of Plaintiff's Proposed Notice of Settlement, filed May 30, 2014 (Docket #36)). The Settlement Agreement creates a fund of $160, 000, which will cover class members' awards, a service award to Sanchez, attorney's fees and costs, and administration costs. See id. ¶ 3.1. The Settlement Agreement provides that, after these amounts were deducted, the remainder of the fund would be divided between two subclasses: delivery workers, who would receive 60%, and non-delivery workers, who would receive 40%. See id. ¶¶ 3.5(A)(I)-(ii). Each member of these subclasses would receive allocations based on their weeks worked, as recorded in defendants' records. Id. ¶ 3.5(A)(iii).
On May 30, 2014, Sanchez moved for preliminary approval of the class settlement, provisional certification of the settlement class, appointment of plaintiff's counsel as class counsel, and approval of plaintiff's proposed notice of pendency of the class action and proposed settlement (Docket #35). As required by an Order of this Court dated July 2, 2014 (Docket #38), plaintiff's counsel filed papers to supplement this motion on July 18, 2014 (Docket #39). By Order dated August 22, 2014 (Docket #41), this Court granted the motion.
The Notice of Pendency of Class Action and Proposed Settlement ("Notice") summarized the Settlement Agreement and informed the potential class members of their rights under the settlement, including their right to opt out or object. See Notice of Pendency of Class Action and Proposed Settlement (annexed as Ex. 2 to Letter addressed to Magistrate Judge Gabriel W. Gorenstein from C.K. Lee, filed July 18, 2014 (Docket #39)), at 2. It also informed them that Sanchez sought a $10, 000 service award, that class counsel sought fees in the amount of one-third of the settlement fund to be deducted from that fund, and that the administrator's fee of $20, 000 would also be deducted from the settlement fund. See id. at 3, 5. Finally, the Notice provided that potential class members who wished to opt out of the settlement should send signed, written statements to that effect, postmarked by October 30, 2014. See id. at 4-5; Preliminary Approval Order ¶ 14. The Notice was sent to all 359 identified potential class members on September 15, 2014. Lee Decl. ¶¶ 17, 21. After 88 of the Notices were returned as undeliverable, a skip trace was performed, and 64 total replacement notices were re-mailed. Id. ¶ 21; Letter addressed to Magistrate Judge Gabriel W. Gorenstein from C.K. Lee, filed Dec. 4, 2014 (Docket #53).
On November 17, 2014, plaintiff filed the instant motions for final certification of the settlement class, final approval of the class action settlement, approval of the FLSA settlement, a service award to Sanchez, attorney's fees and costs, and administration fees (Docket ##45, 48, 50). Defendants do not oppose these motions.
This Court held a fairness hearing on December 8, 2014. No class member appeared at the hearing. Nor has any member opposed the proposed settlement.
On December 10, 2014, an opt-out notice was filed by class member Michael Meleounis (Docket #54). This was the first and only such notice to be filed. Though the Notice required that all opt-out statements be postmarked by October 30, 2014, the parties have informed the Court that they agree to accept this late opt-out notice as timely.
A. Final Certification of the Settlement Class
The requirements for certification of a class under Fed.R.Civ.P. 23 were set forth in detail in a prior decision of this Court, Romero v. La Revise Associates, 2014 WL 5840531, at *2-3 (S.D.N.Y. Nov. ...