United States District Court, N.D. New York
WEIDONG LI, on behalf of himself and others similarly situated, Plaintiff,
ICHIBAN MEI RONG LI INC., d/b/a Ichiban Japanese & Chinese Restaurant,, Defendants.
PLAINTIFF: JOHN TROY & ASSOCIATES, PLLC JOHN TROY, ESQ.
KIMBUM BYUN, ESQ.
DEFENDANTS: LAW OFFICE OF SCOTT G. GOLDFINGER SCOTT G.
DECISION AND ORDER 
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE.
an action brought by plaintiff Weidong Li, a former employee
of the defendants, asserting violations of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201 et
seq., and the New York Labor Law ("NYLL").
Among the matters raised in his complaint, as amended, are
claims that defendants failed to pay him minimum wages and
proper overtime compensation.
result of mediation, the parties have entered into a
tentative settlement agreement, which has been forwarded to
the court for approval. Based upon review of the agreement
and the parties' submissions, as well as the court's
familiarity with the case, I conclude that a fairness hearing
is not necessary and approval of the settlement is
commenced this action on July 12, 2016, and filed an amended
complaint on November 16, 2016. Dkt. Nos. 1, 12. Named as
defendants in the amended, operative complaint are Ichiban
Mei Rong Li Inc., the operator of Ichiban Japanese &
Chinese Restaurant, located in Albany, New York, as well as
Shu Jie Xiao and Mei Rong Li, who are alleged to control the
daily operations of the restaurant. Dkt. No. 12 at 3-5.
Plaintiff alleges that he was employed as a delivery man at
the restaurant between October 15, 2014 and February 28,
2015. Id. at 5; Dkt. No. 26 at 1.
Plaintiff asserts a variety of claims under the FLSA and
NYLL, generally arguing that defendants failed to (1) pay
minimum wages, (2) pay proper overtime wages, (3) provide
proper spread of hours compensation, (4) provide adequate
meal periods, (5) maintain adequate payroll records, (6)
provide a time of hire notice detailing rates of pay and
other required information, (7) provide paystubs containing
the required information, and (8) reimburse plaintiff for
compensable motor vehicle expenses. See generally
Dkt. No. 12. As relief, plaintiff requests an award to
include (1) unpaid minimum wages; (2) unpaid overtime wages;
(3) liquidated damages under the FLSA; (4) up to $5, 000
based upon the failure to provide the required time of hire
notice; (5) up to $5, 000 for failure to provide proper
paystubs; (6) liquidated damages under the NYLL; (7)
prejudgment and post-judgment interest; and (8) costs and
attorney's fees. Id.
February 7, 2017, the court received notification from the
mediator who conducted the mandatory mediation in the case
that settlement had been achieved. Dkt. No. 21. The court
then directed the parties to file the proposed settlement
agreement, along with letters stating their positions as to
why the settlement terms are fair and reasonable. Dkt. No.
23. The court is now in receipt of those letters and the
accompanying settlement agreement. Dkt. Nos. 26, 27.
terms of the parties' settlement are memorialized in an
agreement that has been publicly filed with the court. Dkt.
No. 26-1. The material terms of the settlement include
payment by defendants to plaintiff in the amount of $25, 000,
in periodic installments payable over 210 days, secured by a
confession of judgment in the amount of $37, 500.
Id. at 2-3. The agreement includes mutual release
language, and provides for execution of a stipulation of
voluntary discontinuance of the action, with prejudice.
Id. at 4-5.
submission outlining the terms of the settlement,
plaintiff's counsel has advised that, of the settlement
amount, a total of $1, 256.57 will be applied to cover the
costs and out-of-pocket disbursements incurred by counsel in
representing plaintiff. Dkt. No. 26 at 3. Of the remaining sum
of $23, 743.43, one-third, or $7, 914.48, will be paid to
Troy Law, PLLC, the law firm representing plaintiff, and the
balance of $15, 828.95 will inure to the benefit of
plaintiff. Id. at 3.
the relevant language of the FLSA, the Second Circuit has
held that stipulated dismissals under Federal Rule of Civil
Procedure 41(a)(1)(A)(ii) settling FLSA claims with prejudice
require approval of either a district court or the Department
of Labor to become effective. Cheeks v. Freeport Pancake
House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). Requiring
such approvals furthers the FLSA's manifest purpose of
insuring that workers receive "'a fair day's pay
for a fair day's work.'" Cheeks, 796
F.3d at 206 (quoting A.H. Phillips, Inc. v. Walling,
324 U.S. 490, 493 (1945)).
touchstone of the required review under Cheeks is
that a settlement agreement must be fair and reasonable.
Lopez v. 41-06 Bell Blvd. Bakery LLC, No.
15-CV-6953, 2016 WL 6156199, at *1 (E.D.N.Y. Oct. 3, 2016)
(citing cases). Among the factors to be considered in the
determining the issue of fairness are (1) the ranges of
potential recovery by the plaintiff; (2) the litigation risks
faced by the parties; (3) the extent to which the parties
will avoid the burdens of expensive litigation; (4) whether
the agreement results from good-faith, arm's-length
negotiations involving experienced attorneys; and (5) whether
there is any indicia of fraud or collusion. Lopez,
2016 WL 6156199, at *1 (citing Wolinsky v. Scholastic
Inc., 900 F.Supp.2d 332, 335 (S.D.N.Y. 2012)). In
addition, when a proposed FLSA settlement includes payment of
attorney's fees, the reasonableness of the fee award must
also be examined. Lopez, 2016 WL 6156199, at *2;
Wolinsky, 900 F.Supp.2d at 336. When evaluating the
overarching consideration of fairness, the court bears in
mind that ...