United States District Court, S.D. New York
SCOTT SAVINO and LUIS COLON, on behalf of themselves and others similarly situated, et al., Plaintiffs,
VISITING NURSE SERVICE OF NEW YORK and VNS CHOICE, Defendants.
OPINION AND ORDER
PITMAN United States Magistrate Judge.
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).
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
formerly worked for defendants as Community Outreach
Coordinators ("COCs") 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
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.
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
the net amount that will be received by each plaintiff after
deduction for legals fees and costs are as follows:
Net Settlement Amount
Juan G. DeJesus
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.
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.
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 ...