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Rogers v. FSM Management Inc.

United States District Court, S.D. New York

April 13, 2017

DOMINGO RAMIREZ ROGERS, Plaintiff,
v.
FSM MANAGEMENT INC., et al., Defendants.

          OPINION AND ORDER

          HENRY PITMAN United States Magistrate Judge

         This matter is before me on the parties' joint application to approve their settlement (Docket Item ("D.I.") 18). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).

         The parties reached their proposed settlement prior to any settlement conference being scheduled, and therefore, my knowledge of the underlying facts and the justification for the settlement is limited to counsels' representations in their letter submitted in support of the settlement.

         Plaintiff formerly worked for defendant FSM Management Inc. as a building superintendent and seeks, by this action, to recover unpaid minimum wages and overtime premium pay. The action is brought under the Fair Labor Standards Act (the "FLSA"-), 28 U.S.C. §§ 201 et seq., and the New York Labor Law. Plain- tiff also asserts a claim based on defendants' alleged failure to maintain certain records and to provide certain notices under the Wage Theft Prevention Act (the "WTPA").

         Plaintiff alleges he was assigned to perform cleaning and maintenance work at three buildings in Manhattan from June 2014 through June 2015. He alleges he worked 46 hours per week from June 2014 through April 2015 and was paid a flat weekly salary of $245.00.[1] Plaintiff claims he is owed $4, 500.00 in unpaid minimum wage, $800.00 in unpaid overtime, $5, 300.00 in liquidated damages and $10, 000.00 for WTPA violations.

         Defendants deny plaintiff's allegations. Specifically, defendants dispute the number of hours plaintiff alleges he worked, claiming that he worked only 24 hours per week.

         The parties have agreed to a settlement in the total amount of $16, 500.00. The proposed settlement further provides that plaintiff's counsel will receive $5, 863.67 and that the balance of $10, 636.33 will be paid to plaintiff. The amount allocated to counsel is comprised of $545.00 for out-of-pocket costs plus one-third of the remaining settlement proceeds, i.e., $545.00 ($15, 955.00 ÷ 3) .

         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.) (alterations in original). "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." Lliguichuzhca v. Cinema 60, LLC, 948 F.Supp.2d 362, 365 (S.D.N.Y. 2013) (Gorenstein, M.J.) (internal quotation marks 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, supra, 679 F.2d at 1353-54.

         In Wolinsky v. Scholastic Inc., 900 F.Supp.2d 332, 335 (S.D.N.Y. 2012), the Honorable Jesse M. Furman, United States District Judge, identified five factors that are relevant to an assessment of the fairness of an FLSA settlement:

In determining whether [a] proposed [FLSA] settlement is fair and reasonable, a court should consider the totality of circumstances, including but not limited to the following factors: (1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their respective claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's-length bargaining between experienced counsel; and (5) the possibility of fraud or collusion.

(Internal quotation marks omitted). The settlement here satisfies these criteria.

         First, the net settlement represents more than 100% of plaintiff's unpaid wages and approximately one-third of his liquidated and WTPA damages. Thus, the net settlement amount provides ...


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