United States District Court, S.D. New York
OPINION AND ORDER
PITMAN UNITED STATES MAGISTRATE JUDGE
matter is before me on the parties' joint application to
approve the parties' settlement. All parties have
consented to my exercising plenary jurisdiction pursuant to
28 U.S.C. § 636(c).
an action brought by an individual who was formerly employed
as a cook and kitchen helper at defendants' restaurant
and seeks unpaid minimum wages, overtime premium pay,
spread-of-hours pay and liquidated and statutory damages. The
action is brought under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201 et
seq., and the New York Labor Law. Plaintiff alleges
that he worked for defendants from late July 2008 through
July 2014, worked an average of 72 hours per seek and was
paid a flat salary of $3 50 per week until 2013 and $500 per
week there- after. Plaintiff claims that his claims for
unpaid minimum wages and unpaid overtime premium pay total
approximately $50, 000 exclusive of liquidated damages.
admit that plaintiff worked for them but contest the number
of hours claimed by plaintiff and also claim that from 2011
to 2012, plaintiff did no work for defendants but worked at a
different restaurant instead. Defendants do not admit that
plaintiff is owed any damages. Defendants also claim that
they lack the assets to pay a substantial settlement or
side has any documentary evidence to support their positions,
and it is not known whether there are any disinterested
witnesses with relevant knowledge.
a lengthy settlement conference with counsel and their
clients on February 6, 2015 at which the parties agreed to
settle the action for a total of $27, 000.00. After deduction
of counsels fee, plaintiff's net settlement will be
approximately $18, 000.00
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 settle-
ment." Id. (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.).
"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, 94 8 F.Supp.2d 3 62, 3 65 (S.D.N.Y.
2013) (Gorenstein, M.J.) (inner quotation marks and citations
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, 679 F.2d 1350, 1353-54 (11th Cir. 1982).
The presumption of fairness in this case is bolstered by the
caliber of the parties' counsel. All parties are
represented by counsel who are known to me to be extremely
knowledgeable regarding wage and hour matters and who are
well suited to assess the risks of litigation and the
benefits of the proposed settlement.
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.
(Inner quotations and citations omitted). The settlement here
satisfies these criteria.
actual damages sought by plaintiff, exclusive of liquidated
damages, are approximately $50, 000.00. Thus, the settlement
represents approximately 32% of the actual damages alleged by
the settlement will entirely avoid the burden, expense and
aggravation of litigation. Plaintiff's case rests
entirely on plaintiff's oral testimony, and litigating
the case would require the taking of several depositions. The
settlement avoids the expense and burden of these
the settlement will enable plaintiff to avoid the risk of
litigation. Defendants contest the hours claimed by
plaintiff, claim that he worked for another restaurant for at
least one of the years in issue and also claim that they lack
the assets to satisfy a large judgment or settlement.
Although the settlement does not provide plaintiff with the
majority of the damages plaintiff claims, ...