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Savino v. Visiting Nurse Service of New York and VNS Choice

United States District Court, S.D. New York

June 6, 2017

SCOTT SAVINO and LUIS COLON, on behalf of themselves and others similarly situated, et al., Plaintiffs,
v.
VISITING NURSE SERVICE OF NEW YORK and VNS CHOICE, Defendants.

          OPINION AND ORDER

          HENRY PITMAN United States Magistrate Judge.

         This matter is before me on a joint application to approve the parties' settlement (Docket Item ("D.I.") 69). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).

         The parties reached their proposed settlement before I could schedule a settlement conference, and my knowledge of the underlying facts and the justification for the settlement is, therefore, limited to the complaint and counsels' representations in their application seeking settlement approval.

         Plaintiffs formerly worked for defendants as Community Outreach Coordinators ("COCs")[1] and seek, by this action, to recover unpaid overtime premium pay. Plaintiffs assert their claims under the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §§ 201 et seq., and New York Labor Law (the "NYLL"). Plaintiffs also assert claims based on defendants' alleged failure to maintain certain records and to provide certain notices under the Wage Theft Prevention Act. The action was commenced as a collective action with respect to the FLSA claim, and the parties stipulated to the matter proceeding as a collective action.[2]

         Defendants deny plaintiffs' allegations. They contend that plaintiffs worked less than 40 hours per week, as demonstrated by their weekly schedules, and that plaintiffs were exempt from the federal and state overtime requirements.

         The parties reached their proposed settlement after a 10-hour mediation session before Vivian Berger, Esq., who counsel describes as "a well-known employment mediator" (Letter from Marijana Matura, Esq., and John Keil, Esq., to the undersigned, dated Feb. 17, 2017 (D.I. 69) ("Matura Letter"), at 2). The parties agreed to resolve the dispute for a total settlement amount of $150, 000.00, to be distributed among plaintiffs on a pro rata basis. The parties have also agreed that $3, 300.00 of the settlement figure will be allocated to reimburse plaintiffs' counsel for their out-of-pocket costs, $48, 895.11 (or one-third) of the remaining $146, 700.00 will be paid to plaintiffs' counsel and the balance will be paid to plaintiffs. The amount claimed by each plaintiff[3] and the net amount that will be received by each plaintiff after deduction for legals fees and costs are as follows:

Plaintiff

Amount Claimed

Net Settlement Amount

Scott Savino

$111, 233.35

$33, 597.03

Luis Colon

$19, 837.50

$6, 074.72

Natasha Barbara

$55, 352.51

$16, 950.25

Naama Francois

$104, 958.54

$31, 793.03

Juan G. DeJesus

$21, 268.72

$6, 513.00

Iris Vega

$9, 394.63

$2, 876.86

TOTAL

$322, 045.25

$97, 804.89

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." Lliquichuzhca 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, although the net settlement represents approximately 30% of plaintiffs' claimed damages, that fact does not render it deficient. A majority of plaintiffs' weekly schedules showed less than forty hours worked each week. Additionally, defendants argue that plaintiffs were exempt from the overtime requirements and are, therefore, entitled to no damages for overtime work. As ...


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