United States District Court, S.D. New York
SHELDON ROMERO, individually and on behalf of all others similarly situated, Plaintiff,
ABCZ CORP., et al., Defendants.
OPINION AND ORDER
PITMAN, United States Magistrate Judge
matter is before me on the parties' joint application to
approve their settlement (Docket Item ("D.I.")
144). All parties have consented to my exercising plenary
jurisdiction pursuant to 28 U.S.C. § 636(c).
formerly worked for defendants and seeks, by this action, to
recover allegedly unpaid wages. The action is brought under
the Fair Labor Standards Act (the "FLSA"), 29
U.S.C. §§ 201 et seq., and the New York Labor Law
(the "NYLL"). Plaintiff also asserts claims based
on defendants' alleged failure to maintain certain
records and to provide certain notices as required by the
Wage Theft Prevention Act. The action was commenced as a
collective action with respect to the FLSA claim and was
conditionally certified as such. Although 26 individuals
initially opted in to the collective action, they
subsequently opted out of it (Opt-Out Statement, filed July
23, 2015 (D.I. 70); Opt-Out Statement, dated Dec. 16, 2016
(D.I. 121)).Thus, the only parties to the settlement
are the named plaintiff and the named defendants.
alleges he was employed as a disc jockey at defendants'
strip club from approximately January 26, 2008 to April 22,
2014. Plaintiff claims that during this period, he never
received any wages from defendants; instead, plaintiff was
only compensated by tips from the dancers who worked there.
Plaintiff claims he is owed $51, 518.19 in unpaid minimum
wage and $47, 999.09 in liquidated damages, interest and
statutory damages for alleged violations of the Wage Theft
deny plaintiff's allegations. They dispute the number of
hours plaintiff claims to have worked. Defendants also
contend that plaintiff was an independent contractor after
December 2012, as evidenced by a disc jockey agreement that
classified plaintiff as an independent contractor. In support
of this argument, defendants assert that plaintiff was
directed and controlled not by defendants, but by the
a lengthy settlement conference on April 26, 2017 that was
attended by the parties and their counsel. There was a
protracted discussion of the strengths and weaknesses of the
parties' respective positions. Although the parties did
not settle their dispute at the settlement conference, they
subsequently reached an agreement after some of the
defendants disclosed their financial records.
parties have agreed to a total settlement of $100, 000.00.
The parties have also agreed that $3, 727.25 of the
settlement figure will be allocated to reimburse
plaintiff's counsel for their out-of-pocket costs, $32,
090.88 (or one-third) of the remaining $96, 272.75 will be
paid to plaintiff's counsel as fees and the remaining
$64, 181.87 will be paid to plaintiff.
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." Td. (citing Lynn's Food Stores,
Inc. v. United States, 679 F.2d 1350, 1353 n.8 (11th
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. 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, it is clear to me that all parties are
represented by counsel who are extremely knowledgeable
regarding all issues in the case and who are well suited to
assess the risks of litigation and the benefits of the
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.
after deduction of attorneys' fees and costs, the net
settlement represents approximately 64.5% of plaintiff's
total damages, j.e., actual, liquidated and statutory damages
and interest. Thus, the net settlement ...