United States District Court, S.D. New York
DONATA VELAZQUEZ, individually, also known as "Issabelle E. Velazquez, " Plaintiff,
THE ESTATE OF MURRAY H. ANTONIER, Defendant.
OPINION AND ORDER
PITMAN UNITED STATES MAGISTRATE JUDGE.
matter is before me on the parties' application to
approve their settlement agreement (Docket Item
("D.I.") 25, 26). All parties have consented to my
exercising plenary jurisdiction pursuant to 28 U.S.C. §
Donata Velazquez alleges that she was employed by Murray H.
Antonier as a live-in home attendant from approximately July
2008 up until Antonier's death in July 2015.
Antonier's estate is represented by the Bronx County
Public Administrator, a quasi governmental agency that
administers the estates of deceased individuals who have no
known next of kin or no qualified executor or administrative
("Defendant"). 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 for
allegedly unpaid minimum wages and overtime premium pay.
Plaintiff also asserts claims based on Antonier's alleged
failure to provide certain notices as required by the Labor
Law. Although the action was commenced as a collective action
with respect to the FLSA claims, the parties reached the
proposed settlement prior to the matter being conditionally
certified as a collective action. Thus, the only parties to
the settlement are Velazquez and Defendant.
parties reached their proposed settlement after a conference
before the Honorable Kevin Nathaniel Fox, United States
Magistrate Judge, and therefore, my knowledge of the
underlying facts and the justification for the settlement is
limited to the parties' pleadings, the ex parte
letters the parties submitted to Judge Fox in advance of the
settlement conference and the representations in
counsels' submissions in support of settlement approval.
Plaintiff asserts that when she was employed by Antonier, she
worked 24 hours a day, seven days a week and performed a
variety of tasks, including preparing and serving meals,
grocery shopping, picking up medicine and dry cleaning,
household cleaning, laundry, assisting with personal hygiene
and taking Antonier to appointments outside of the home.
Plaintiff asserts that for one month at the beginning of her
employment, Antonier paid her $15 per hour for 13 hours per
day for six days per week in cash, totaling $1, 170.00 per
week. Antonier then stopped paying plaintiff a salary and
instead paid her rent, telephone and electric bills, all of
which had a total value of $1, 136.00 per month. Plaintiff
provided Defendant with a "Bill for Estate"
estimating that she is owed $561, 491.52.
denies plaintiff's allegations and argues that plaintiff
has failed to produce documentation sufficient to allow
Defendant to evaluate plaintiff's claim. Defendant also
argues that the FLSA's wage-and-hour requirements do not
apply to plaintiff because she was not "engaged in
commerce or in the production of goods for commerce" and
because Antonier was not "an enterprise engaged in
commerce or in the production of goods for commerce." 29
U.S.C. §§ 206(a), 207(a).
parties have agreed to a total settlement of $175, 000.00
(Stipulation of Settlement, dated May 30, 2017
("Settlement Agreement"), annexed as Ex. C to
Notice of Motion for So Ordered Stipulation of Settlement
& Enforcement (D.I. 25)). Plaintiff's counsel has
agreed to reduce his compensation for fees and costs from
33.33% to 20% of the total settlement amount, i.e.., $35,
000.00. Thus, after deduction of counsel fees,
plaintiff's net recovery is $140, 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 settlement." Id. (citing Lynn's
Food Stores, Inc. v. United States, 679 F.2d 1350, 1353
n.8 (11th Cir. 1982)).
Aaudelo 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. KevBank, 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).
parties have not provided sufficient information for me to
evaluate whether the settlement is fair and reasonable. Under
the settlement, plaintiff will receive approximately 25% of
the estimated "Bill for Estate" of $561, 491.52
after the deduction of counsel fees. However, it is not even
clear if $561, 491.52 is an accurate estimate of
plaintiff's unpaid wages. For example, although plaintiff
alleges that she started working for Antonier in July 2008,
the "Bill for Estate" calculates unpaid wages for
the entirety of 2008. Although there may be a rational basis
for the settlement amount, the parties have failed to present
any substantive argument addressing the fairness of the
settlement agreement. Thus, the parties should provide a
supplemental letter explaining why the settlement is fair and
settlement agreement contains several general releases. In
one section, the Settlement Agreement provides that
(c) "Claims Released" with respect to only the
Plaintiff VELAZQUEZ means any and all claims, demands,
rights, liabilities, damages, penalties, liquidated damages,
punitive damages, actions, causes of action and/or other
legal responsibilities, in any form whatsoever, whether known
or unknown, unforeseen, unanticipated, unsuspected, or
latent, that (a) have accrued prior to the date of approval
of this settlement by the Court and marked "So
Ordered" by the same, and (b) have been or could have
been asserted by VELAZQUEZ, or an agent, successor, assign,
heir, executor or administrator of VELAZQUEZ, whether
directly, indirectly, representatively, derivatively or in
any other capacity, against ANTONIER. The Claims Released
include, but are not limited to, all claims arising under the
Fair Labor Standards Act, 29 U.S.C. § 201, et.
sea, (the "FLSA"), all claims for
attorneys' fees, costs and expenses, and all claims under
any other federal, state, or local law, whether arising or
emanating from statute, executive order, rule, regulation,
code, common law, or other source, including, but not limited
to, all actions sounding in tort, contract, and equity
(including, restitution, unjust enrichment and quantum
merit), and including those claims that were asserted or
could have been asserted in the above-captioned case, any
claims that monies received from the settlement are
compensation eligible for retirement or other employee
benefit plans of ANTONIER, and all claims relating ...