United States District Court, S.D. New York
OPINION AND ORDER
PITMAN, UNITED STATES MAGISTRATE JUDGE
26, 2018, I presided over a settlement conference attended by
the parties and their counsel, at which a settlement was
reached. This matter is now before me on the parties'
joint application to approve their settlement. All parties have
consented to my exercising plenary jurisdiction pursuant to
28 U.S.C. § 636(c).
who alleges that he worked at the defendants' pharmacy,
brought this action under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201 et
sea., and the New York Labor Law ("NYLL").
Plaintiff claims that defendants failed to pay him the
minimum wage during his employment and failed to pay him
overtime premium pay. Plaintiff also asserts claims based on
defendants' alleged failure to maintain certain payroll
records and to provide certain notices as required by the
NYLL. Plaintiff claims that he is entitled to a total of
approximately $132, 000.00 in damages, plus attorney's
dispute all of plaintiff's claims. Defendants contend
that plaintiff worked at the pharmacy irregularly, performing
odd jobs, at hours plaintiff unilaterally chose. Defendants
further contend that plaintiff is more properly characterized
as an independent contractor rather than an employee.
Defendants claim that plaintiff never worked more than 4 0
hours per week and that he was paid more than the minimum
hourly wage for all the hours that he worked.
a protracted discussion at the settlement conference of the
strengths and weaknesses of the parties' respective
positions, the parties agreed to resolve the dispute for the
total amount of $43, 000.00, payable within thirty days of
the entry of an Order approving the settlement. The parties
also agreed that $716.00 will be paid to plaintiff's
counsel to reimburse him for the out-of-pocket costs incurred
to date and that one-third of the remainder -- $14, 094.00 --
will be paid to plaintiff's counsel as a fee. The net
remainder -- $28, 190.00 --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." 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,
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.
the total settlement represents approximately one-third of
plaintiff's total alleged damages, exclusive of
pre-judgment interest. Defendants contend that they have
documentary evidence supporting their contention that
plaintiff was always paid more than the minimum wage and was
never owed overtime premium pay. Plaintiff is unable to
identify any witness who will support his claim. As discussed
in more detail below, given the risks these issues present,
the settlement amount is reasonable.
the settlement will entirely avoid the expense and
aggravation of litigation. As noted above, defendants dispute
plaintiff's claim that he was an employee of the pharmacy
and the number of hours he worked. Thus, trial preparation
would likely require depositions of both sides to explore
these issues. The settlement avoids the necessity of
conducting these depositions .
the settlement will enable plaintiff to avoid the risk of
litigation. To prevail at trial plaintiff will bear the
burden of proving that he was an employee and the number of
hours he worked. Given plaintiff's inability to identify
any corroborating evidence and his interest in the outcome,
there is a non-trivial risk that a fact finder may not credit
his testimony. See Bodon v. Domino's Pizza, LLC.
No. 09-CV-2941 (SLT), 2015 WL 588656 at *6 (E.D.N.Y. Jan. 16,
2015) (Report & Recommen- dation) ("[T]he question
[in assessing the fairness of a class action settlement] is
not whether the settlement represents the highest recovery
possible . . . but whether it represents a reasonable one in
light of the uncertainties the class faces . . . ."
(internal quotation marks omitted)), adopted sub
nom. by, Bodon v. Domino's Pizza,
Inc., 2015 WL 588680 (E.D.N.Y. Feb. 11, 2015);
Massiah v. MetroPlus Health Plan, Inc., No.
ll-cv-05669 (BMC), 2012 WL 5874655 at *5 (E.D.N.Y. Nov. 20,
2012) (" [W]hen a settlement assures immediate payment
of substantial amounts to class members, even if it means
sacrificing speculative payment of a hypothetically larger
amount years down the road, settlement is reasonable . . .
." (internal quotation marks omitted)).
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