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Ramirez v. Greenside Corp.

United States District Court, S.D. New York

March 3, 2017

MARIO RAMIREZ, et. al ., Plaintiffs,
GREENSIDE CORPORATION, et al., Defendants.


          HENRY PITMAN United States Magistrate Judge.

         This matter is before me on the parties' joint application to approve the parties' settlement (Docket Item 55). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).

         This is an action brought by twelve individuals who were formerly employed by defendant Greenside Corporation; the parties dispute whether defendant Kel-Tech Construction Inc. ("Kel-Tech") also employed plaintiffs. Plaintiffs allege that they were not paid for all the hours that they worked, were not paid premium pay ("time-and-a-half") for overtime work, did not receive spread of hours pay, were subjected to retaliation and did not receive the prevailing wage on public projects. Plaintiffs assert their claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and various provisions of the New York Labor Law including the Wage Theft Prevention Act. Although the action was commenced as a collective action with respect to the FLSA claim and a putative class action with respect to the Labor Law claims, the parties reached the proposed settlement prior to the matter being conditionally certified as a collective action or certified as a class action. Thus, the only parties to the settlement are the named plaintiffs and the named defendants.

         In addition to denying that plaintiffs were employed by defendant Kel-Tech, defendants deny that plaintiffs are owed any unpaid wages. In support of their defense, defendants have offered time records which purport to reflect the hours worked along with pay stubs, some of which reflect the payment of overtime premium pay.

         The parties have agreed to a total settlement of $200, 000.00, to be distributed among the plaintiffs on a pro rata basis. The parties have also agreed that plaintiff's counsel will receive one-third of the settlement proceeds as a fee. The amounts claimed by each of the plaintiffs, [1] the gross amount of the settlement fund allocable to each plaintiff and the net amount that will be received by each plaintiff after deduction of one-third for legal fees and each plaintiff's allocable share of costs are as follows:


Amount Claimed

Gross Allocable Share

Net Allocable Share

Mario Ramirez

97, 899.75

28, 577.40

19, 013.50

Amancio Soriano

89, 979.40

26, 265.42

17, 475.26

Danny Garrido

71, 903.20

20, 988.89

13, 964.61

Luis Xohua

87, 599.20

25, 570.62

17, 012.99

Miguel Jiminez

115, 333.6

33, 666.43

22, 399.40

Antonio Tellez

32, 310.00

9, 431.44

6, 275.05

Jose Hernandez

38, 192.80

11, 148.66

7, 417.58

Emilio Sarmiento

13, 326.40

3, 890.04

2, 588.17

Genaro Castillo

22, 873.60

6, 676.91

4, 442.37

Juan Vera

28, 286.80

8, 257.05

5, 493.69

Onelio Ramirez

34, 136.80

9, 964.69

6, 629.84

Agapito Sanchez

53, 313.40

15, 562.45

10, 354.21





         I held a lengthy settlement conference on October 5, 2016 that was attended by most of the principals and their counsel. After a lengthy discussion of the strengths and weaknesses of the parties' respective positions, the parties agreed to resolve the matter on the terms set forth above. Although the allocation of the settlement proceeds among the plaintiffs was not discussed at the settlement conference, plaintiff's counsel represents that:

With regards to the allocation of the settlement amount as between rsicl each Plaintiff, Plaintiffs counsel has met with each one of the clients on multiple occasions to verify dates of employment, individual rate of pay, pay rate changes during Plaintiffs' employment, minimum wage rates for each year of Plaintiffs rsicl employment, liquidated damages amounts collectible pre and post passage of the New York Wage Theft Prevention Act and number of days per [week] which each Plaintiff worked more than ten hours per day.
* * *
Plaintiffs have been made fully aware of the terms of the settlement agreement and the award that each Plaintiff will receive and all have agreed to said amounts.

(Letter from Brett M. Schatz, Esq, to the undersigned, dated November 30, 2016 (Docket Item ("D.I.") 52) at 3-4).

         I refused to approve an earlier of the draft of the settlement agreement because it contained a general release that ran only in favor of defendants, a confidentiality provision and an overly broad non-disparagement clause (D.I. 53). The revised version of the settlement agreement currently before me resolves those issues; plaintiffs are releasing only those claims that were brought or could have been brought in this action and the confidentiality and non-disparagement provisions have been deleted.

Court approval of an FLSA settlement is appropriate "when [the settlement] [is] reached as a result of contested litigation to resolve bona fide disputes." Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL 4357376, at *12 (S.D.N.Y. Sept. 16, 2011). "If the proposed settlement reflects a reasonable compromise over contested issues, the court should approve the settlement." .Id. (citing Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 n. 8 (11th Cir. 1982)).

Agudelo v. E & D LLC, 12 Civ. 960 (HB), 2013 WL 1401887 at *1 (S.D.N.Y. Apr. 4, 2013) (Baer, D.J.). "Generally, there is a strong presumption in favor of finding a settlement fair, [because] the Court is generally not in as good a position as the parties to determine the reasonableness of an FLSA settlement." LliQuichuzhca v. Cinema 60, LLC, 948 F.Supp.2d 362, 365 (S.D.N.Y. 2013) (Gorenstein, M.J.) (inner quotation marks and citations omitted). "Typically, courts regard the adversarial nature of a litigated FLSA case to be an adequate indicator of the fairness of the settlement." Beckman v. Keybank, N.A., 293 F.R.D. 467, 476 (S.D.N.Y. 2013) (Ellis, M.J.), citing Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1353-54 (11th Cir. 1982) . The presumption of fairness in this case is bolstered by the caliber of the parties' attorneys. Based upon their pre-conference submissions and their performance at the settlement conference and in subsequent discussions concerning how the settlement should be reported to the Internal Revenue ...

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