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 their settlement. I held a lengthy settlement
conference in this matter on March 26, 2018 that was attended
by the parties and their counsel. After a settlement was
reached during this conference, all material terms of the
settlement were placed on the record in open court. All
parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c) and the parties requested
an order on the approval of the settlement without written
alleges that he was employed as a kitchen worker from June of
2015 until March 24, 2017 at Cara Mia restaurant that was
owned and operated by defendants. Plaintiff further alleges
that he worked approximately 48 to 52 hours per week and was
paid between $420 and $550 per week for all hours worked.
Plaintiff brings this action under the Fair Labor Standards
Act (the "FLSA"), 29 U.S.C. §§ 201 et
seg., and the New York Labor Law (the "NYLL"), and
seeks to recover unpaid overtime premium pay. Plaintiff also
asserts claims based on the defendants' alleged failure
to provide certain wage notices and statements as required by
the NYLL. According to plaintiff's damages calculations,
plaintiff estimates he could potentially collect $36, 000 in
total damages, minus attorneys' fees and
contend that plaintiff never worked more than 40 hours per
week during his employment and that he was consistently paid
more than the minimum wage. Defendants provided several time
cards and copies of paychecks that support this claim.
Defendants also contend that plaintiff was provided with
required wage statements and notifications. In response,
plaintiff maintains that defendants' time records were
inaccurate and did not show all hours he actually worked.
presided over the settlement conference between the parties
and their counsel. After a protracted discussion of the
strengths and weaknesses of the parties' respective
positions, the parties agreed to resolve the dispute for a
total settlement of $19, 000 to be paid in three increments -
$6, 333 on June 1, 2018, $6, 333 on July 1, 2018 and $6, 333
on August 1, 2018. The parties also agree that defendants
will furnish plaintiff with a confession of judgment that
will provide that if defendants, after notice, fail to cure
any default in making the installment payments within 15
business days, plaintiff may enter judgment in the amount of
$10, 000 plus the unpaid balance of the settlement amount.
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,
94 8 F.Supp.2d 362, 365 (S.D.N.Y. 2013) (Gorenstein, M.J.)
(internal quotation marks omitted). 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
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 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.
plaintiff's net settlement - $12, 216.94 after
attorneys' fees and costs - represents approximately 34%
of his total alleged damages. This percentage is reasonable.
See Redwood v. Cassway Contracting Corp., 16 Civ.
3502 (HBP), 2017 WL 4764486 at *2 (S.D.N.Y. Oct. 18, 2017)
(Pitman, M.J.) (net settlement of 2 9.1% of FLSA
plaintiffs' maximum recovery is reasonable);
Chowdhury v. Brioni America, Inc., 16 Civ. 344
(HBP), 2017 WL 5953171 at *2 (S.D.N.Y. Nov. 29, 2017)
(Pitman, M.J.) (net settlement of 40% of FLSA plaintiffs'
maximum recovery is reasonable); Felix v. Breakroom
Burgers & Tacos, 15 Civ. 3531 (PAE), 2016 WL 3791149
at *2 (S.D.N.Y. Mar. 8, 2016) (Engelmayer, D.J.) (net
settlement of 25% of FLSA plaintiff's maximum recovery is
the settlement will entirely avoid the expense and
aggravation of litigation. This matter was settled prior to
the start of formal discovery, which would have led to
protracted and costly litigation, likely involving
depositions and further document production. The settlement
avoids this burden.
the settlement will enable plaintiff to avoid the risk of
litigation. The main factual dispute in this case is whether
the defendants' time cards documenting plaintiff's
hours - which were signed by plaintiff - are accurate. The
only evidence plaintiff has to rebut this documentation is
his own self-serving testimony, which the jury may or may not
credit. Given the fact that plaintiff bears the burden of
proof and this documentary evidence exists, it is uncertain
whether, or how much, plaintiff would recover at trial.
because I presided over the settlement conference that
immediately preceded plaintiff's acceptance of the
settlement, I know that the settlement is the product of
arm's-length bargaining between experienced counsel. Both