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Darby v. Sterling Home Care, Inc.

United States District Court, S.D. New York

January 2, 2020

BEVOLYN DARBY, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,
v.
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

         This 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 AS FOLLOWS:

         1. Except as otherwise specified herein, the Court adopts all defined terms set forth in the parties' Settlement Agreement.

         2. The 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.

         3. If, 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.

         4. The 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.

         5. The Court confirms that it previously preliminarily certified the Class on April 19, 2019, and hereby certifies the Class for purposes of settlement.

         6. The Court previously appointed BEVOLYN DARBY as Class Representative.

         7. The Court previously appointed William Coudert Rand, Law Office of William Coudert Rand, as Class Counsel.

         8. The 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.

         9. The "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.").

         10. It 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.

         11. The 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).

         Regarding 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 ...


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