United States District Court, S.D. New York
BEVOLYN DARBY, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,
STERLING HOME CARE, INC., MARK R. ZWERGER, MATTHEW G. ANDERSON, MICHELE THOMAS EILEEN KILLEEN, and JOHN DOES #1-10, Defendants.
ORDER AND FINAL JUDGMENT: (1) CONFIRMING
CERTIFICATION OF CLASS; (2) GRANTING FINAL APPROVAL OF CLASS
ACTION SETTLEMENT; (3) AWARDING ATTORNEY'S FEES AND
EXPENSES; AND (4) ENTERING FINAL JUDGMENT DISMISSING THE
ACTION WITH PREJUDICE
HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
matter came on for hearing upon the Court's Order of
April 19, 2019, preliminarily approving the Settlement in
this action ("Preliminary Approval Order"). A
Fairness Hearing was held on September 3, 2019. Due and
adequate notice having been given to the Class, as defined in
the parties' Settlement Agreement, dated January 10, 2019
("Agreement" or "Settlement Agreement"),
and the Court having considered all papers filed and
proceedings had herein and all oral and written comments
received regarding the proposed Settlement, and having
reviewed the record in the above captioned matter, and good
cause appearing, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
Except as otherwise specified herein, the Court adopts all
defined terms set forth in the parties' Settlement
Court has jurisdiction over the subject matter of the
above-captioned matter, the Named Plaintiff, Defendants
STERLING HOME CARE, INC., MARK R. ZWERGER, MATTHEW G.
ANDERSON, MICHELE THOMAS, and EILEEN KILLEEN (collectively,
"Defendants"), and all members of the Class,
approximately 184 individuals.
for any reason, this Agreement does not become effective, the
parties shall return to their respective positions in the
Action as those positions existed immediately before
execution of the Agreement.
Court finds that the distribution by first-class mail of the
Notice of Settlement constituted the best notice practicable
and met the requirements of due process under the United
States Constitution, applicable state law, Federal Rule of
Civil Procedure 23, and the Fair Labor Standards Act
("FLSA"). Based on oral and written materials
submitted in conjunction with the Fairness Hearing, the
actual notice to the Class was adequate. These papers
informed Class Members of the terms of the Settlement, then
right to object to the Settlement, or to elect not to
participate in the Settlement and pursue their own remedies,
and their right to appear at the Fairness Hearing and be
heard regarding approval of the Settlement. No. Class Members
objected to the Settlement and two Class Members, Verona
Dixon and Kathleen Turner, have requested exclusion and are
hereby removed from the Class. Notice was returned as
"undeliverable with no forwarding address" for the
following 22 Class Members: Juliet Obeng, Caudroya Smith,
Marion Desouza, Melissa Jeudy, Jennipher Agymang, Maritha
Njoku, Deborah Opoku, Bendjie Fonfrel, Kimisha
Scarlett-Williams, Faustina Azameti, Adds Wright, Sharon
Reid, Sandra Davis, Hyacinth Clarke, Patricia Smith, Nancy
Agyapong, Sharon Okeyo, Bruce Winsome, Fatoumata Diallo, Yula
Deyounge, Michelle Bascomb, and Benjamin Boateng. See
Affidavit of Shari Deans, dated Aug. 19, 2019, at 1-2, ECF
No. 61. Because these Class Members did not receive notice,
they are removed from the Class and not subject to the
Settlement Agreement and the releases therein.
Court confirms that it previously preliminarily certified the
Class on April 19, 2019, and hereby certifies the Class for
purposes of settlement.
Court previously appointed BEVOLYN DARBY as Class
Court previously appointed William Coudert Rand, Law Office
of William Coudert Rand, as Class Counsel.
Court approves the Class Action Settlement Agreement, subject
to modifications discussed below, as fair, adequate, and
reasonable under applicable law, including Federal Rule of
Civil Procedure 23 and the FLSA, See Wal-Mart Stores,
Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir.
2005) ("A court may approve a class action settlement if
it is fair, adequate, and reasonable."). The Settlement
Administrator and the Settling Parties, including the Class,
the Named Plaintiff, and the Defendants, are required to
perform in accordance with the terms set forth in the
Settlement Agreement, as modified by this Order.
"Effective Date" as defined by ¶ 10(b) of the
Agreement shall be twenty-one (21) days after entry of the
Order granting final approval of the Agreement and dismissing
the case, rather than thirty-three (33) days. This change is
intended to help ensure that checks to the Class Members will
be mailed expeditiously, See Transcript, dated Sept.
3, 2019, at 7 ("Tr.").
is not the Court's practice to award a named plaintiff a
service fee in part because "they bring [a class action]
case to recover damages for themselves in particular, and
when they succeed, even as by a settlement, that  recovery
is adequate compensation." See Tr. at 5;
see also In re AMF Bowling Sec. Litig., 334
F.Supp.2d 462, 470 (S.D.N.Y. 2004). Consequently, the Court
denies the $1, 000 service award for BEVOLYN DARBY. Ms.
Darby's payout under the Class Action Settlement appears
adequate to compensate her as a Class Member. This $1, 000
will be redistributed to the Class on a pro rata
basis. It should be noted that Ms. Darby is also
receiving $21, 229.95 in her individual capacity as part of
an Individual Settlement to settle her non-class action
claims with the Defendants. See ¶ 15 infra. Her
counsel has not requested legal fees for this settlement,
apart from the award of legal fees described in ¶ 11.
Court is lowering Class Counsel's requested fee from 25.1
% of the Total Settlement Amount to 20%. Pursuant to the
factors set forth in Goldberger v. Integrated Resources,
Inc., 209 F.3d 43 (2d Cir. 2000), the Court awards Class
Counsel a fee of 20% of the Total Settlement Amount, or $66,
174.68, as fair and reasonable. See e.g., Sakiko
Fujiwara v. Sushi Yasuda Ltd., 58 F.Supp.3d
424, 435, 439 (S.D.N.Y. 2014) (awarding fees of 20% of the
settlement fund in a wage-and-hour case); Sines v.
Service Corp. Intern., No. 03 Civ. 5465 (PKC), 2006 WL
1148725, at *3 (S.D.N.Y. May 1, 2006) (awarding 20% of the
settlement fund in a wage-and-hour case). The court in In
re Arakis Energy Corp. Sec. Litigation has pointed out
that "the trend within this circuit after
Goldberger has been to award attorneys' fees in
amounts considerably less than 30% of common funds in 
class actions, even where there is a substantial contingency
risk." No. 95 CV 3431, 2001 WL 1590512, at *9 (E.D.N.Y.
Oct. 31, 2001).
the first Goldberger factor, the time sheets
submitted by Class Counsel, a solo practitioner, reflect that
he worked 214.9 hours on this case. See Decl. of William C.
Rand in Support of Plaintiff s Application for Final Approval
of Class and Collective Action Settlement, dated Aug. 20,
2019, ECF No. 63, Ex. C ("Rand Decl."). All hours
were billed at an hourly rate of $386.92, le., 214.9 hours x
$386.92 or $83, 149. See PL Mot. on Consent for Final
Approval of Settlement, Certification of Settlement Class, an
Award of Attorney's Fees, Reimbursement of Expenses and
Representative Incentive Award, dated Aug. 19, 2019, ECF No.
60, at 26 ("PI, Mot.")- The time sheets submitted
by Class Counsel show that entries include "clerical
tasks" and other non-legal work that, in the Court's
view, are not appropriately billed at $386.92 per hour.
See Lilly v. City of New York. 934 F.3d 222, 234 (2d
Cir. 2019). For instance, there are entries for
"[organizing and filing opt-in statements," and
"filing," "sending," and
"serving" various other documents. See Rand Decl.,
Ex. C. "'It is appropriate to distinguish between
legal work, in the strict sense, and investigation, clerical
work, compilation of facts and statistics and other work
which can often be accomplished by non-lawyers but which a
lawyer or paralegal may do because he has no other help
available. Such non-legal work may command a lesser rate. Its
dollar value is not enhanced just because a lawyer or
paralegal does it, '" Lilly, 934 F.3d at
233-34 (quoting Missouri v. Jenkins by Agyei. 491
U.S. 274, 288 n.10 (1989) (alterations incorporated)), Some
of the time sheet entiles are imprecise and vague, such as
entries that state "call with" or "meeting
with" a certain person, but do not identify the puipose