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Chang v. Philips Bryant Park LLC

United States District Court, S.D. New York

January 9, 2020

ANDREW CHANG and RYAN SANTOS, on behalf of themselves, FLSA Collective Plaintiffs and the Class, Plaintiffs,
v.
PHILIPS BRYANT PARK LLC d/b/a BRYANT PARK HOTEL, PHIL COLUMBO and MICHAEL STRAUSS, Defendants.

         ORDER (1) ADOPTING REPORT AND RECOMMENDATION, (2) CONDITIONALLY CERTIFYING SETTLEMENT CLASS AND COLLECTIVE ACTION, (3) GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION, (4) DIRECTING DISSEMINATION OF NOTICE AND RELATED MATERIAL TO THE CLASS, AND (5) SETTING DATE FOR FAIRNESS HEARING AND RELATED DATES

          LAURA TAYLOR SWAIN UNITED STATES DISTRICT JUDGE

         The Court has reviewed Magistrate Judge Cave's October 23, 2019, Report and Recommendation (the “Report”) (docket entry no. 67), which recommends that (i) the Court grant Plaintiffs' motion for preliminary approval of the proposed class action settlement and plan of allocation (docket entry no. 53); (ii) the proposed class, which is defined as “Named plaintiffs and up to 367 current and former hourly, non-exempt employees employed by Defendants from November 13, 2011 to July 30, 2018, ” be conditionally certified as a class action under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure and conditionally approved as a collective action under Section 216(b) of the Fair Labor Standards Act; (iii) the Court appoint (a) Andrew Chang and Ryan Santos as class representatives, (b) C.K. Lee of Lee Litigation Group PLLC as class counsel, and (c) Rust Consulting as claims administrator; (iv) the Court (a) approve the proposed notice to the class subject to the revisions described in Section IV.F. of the Report and Recommendation and (b) direct the parties to distribute the notice according to the procedures set forth in the parties' Settlement Agreement (Exhibit A to the Declaration of C.K. Lee filed in support of Plaintiffs' Motion for Preliminary Approval (docket entry no. 55-1), and; (v) the Court set a date for a fairness hearing and corresponding deadlines. No. objections to the Report have been received.

         In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C.A. § 636(b)(1)(C) (LexisNexis 2017). “In a case such as this one, where no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Johnson v. New York University School of Education, No. 00 Civ. 8117, at *1, 2003 WL 21433443 (S.D.N.Y. June 16, 2003).

         The Court has reviewed carefully Magistrate Judge Cave's thorough and well-reasoned Report and Recommendation and finds no clear error. Further, Plaintiff has submitted an amended class notice that reflects the changes directed by Judge Cave in her Report, and by the Court's November 25, 2019, Order (docket entry no. 68). The Court therefore adopts the Report in its entirety for the reasons stated therein. The Court further addresses the motion as follows.

         After participating in a private mediation session, and despite their adversarial positions in this matter, Plaintiffs Andrew Chang and Ryan Santos (collectively, “Plaintiffs”) and Defendants Philips Bryant Park LLC d/b/a Bryant Park Hotel, Phil Columbo and Michael Strauss (collectively “Defendants”) (with Plaintiffs, the “Parties”) negotiated a settlement of this litigation. The terms of the proposed settlement (“Settlement”) are set forth in the proposed Settlement Agreement and Release (“Settlement Agreement”).

         On January 10, 2019, Plaintiffs filed a Notice Of Motion For Order (1) Conditionally Certifying Settlement Class, (2) Granting Preliminary Approval To Proposed Class Action Settlement And Plan Of Allocation, (3) Directing Dissemination of Notice And Related Material To The Class, and (4) Setting Date For Fairness Hearing And Related Dates (“Motion”). In their Motion, Plaintiffs requested that, for settlement purposes only, this Court conditionally certify a class under Federal Rule of Civil Procedure 23 and a co-extensive collective action under Section 16(b) of the Fair Labor Standards Act. Plaintiffs also requested that the Court grant preliminary approval to the Settlement Agreement, including the plan of allocation in that Agreement, and that the Court approve a proposed Notice of Proposed Settlement of Class Action Lawsuit and Fairness Hearing (“Class Notice, ” Exhibit B to the Declaration of C.K. Lee) and a proposed change of address form (Exhibit C to the Declaration of C.K. Lee). On January 7, 2020, Plaintiff filed an amended Notice of Proposed Class Action Settlement (“Amended Class Notice, ” docket entry no. 69, ex. 1), which reflects changes directed by Judge Cave in her Report, and by the Court's November 25, 2019, Order (docket entry no. 68). Having reviewed the Settlement Agreement, the Motion and the Amended Class Notice, along with the Parties' prior submissions in this matter, the Court now FINDS, CONCLUDES, AND ORDERS as follows:

         I. Background

         Plaintiffs in this lawsuit were employed by Defendants as non-exempt, hourly employees. Plaintiffs bring claims under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). Plaintiffs claim, inter alia, that Defendants failed to pay (1) overtime premium, (2) unpaid wages due to time shaving, (3) tips earned at private catering events that were illegally retained by Defendants, (4) portions of tips earned on room service orders illegally deducted and retained by Defendants, (5) liquidated damages and (6) attorneys' fees and costs. Plaintiffs, for themselves and others they claim are similarly situated, sought to recover, inter alia, unpaid wages, liquidated damages, penalties, injunctive relief and attorneys' fees and costs. Defendants have disputed, and continue to dispute, Plaintiffs' allegations in this lawsuit, and Defendants deny any liability for any of the claims that have or could have been alleged by Plaintiffs or the persons that they seek to represent.

         II. Definition of the Settlement Class

         The Parties have entered into the Settlement Agreement solely for the purposes of compromising and settling their disputes in this matter. As part of the Settlement Agreement, Defendants have agreed not to oppose, for settlement purposes only, conditional certification under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and 29 U.S.C. § 216(b) of the following settlement class (the “Class”):

Named plaintiffs and up to 367 current and former hourly, non-exempt employees employed by Defendants from November 13, 2011 to July 30, 2018.

III. Designation of the Class as an FLSA Collective Action

         The Court finds that the members of the Class are similarly situated within the meaning of Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), for purposes of determining whether the terms of settlement are fair. Accordingly, the Court conditionally certifies the Class as an FLSA collective action. The Court authorizes the Amended Class Notice to be mailed to potential members of the FLSA collective action, notifying them of the pendency of the FLSA claim, and of their ability to join the lawsuit.

         Members of the Class who sign, negotiate, endorse, deposit or cash their Settlement Checks in this matter will acknowledge the following: “By my endorsement of this check, I opt in to the lawsuit S.D.N.Y. 17-cv-8816, for settlement purposes only, and release all of my claims as described in the class settlement agreement.” All Settlement Checks shall be deemed filed with the Court at the time ...


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