]USDCSDNY en UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: Lambert Grant, DATE FILED: _4/27/2021 Plaintiff, 1:20-cv-02353 (SDA) -against- ORDER Elmax Builders Supply, LLC, Defendant.

STEWART D. AARON, United States Magistrate Judge: Before the Court is the parties’ joint letter, dated April 23, 2021 (ECF No. 28), seeking approval of their proposed Settlement Agreement & Release (the “Agreement”) (ECF No. 28-1). For the reasons set forth below, the Court cannot approve the Agreement as written. Paragraph 7 of the Agreement provides that Plaintiff “expressly agrees to refrain from disparaging, defaming, or criticizing the Released Parties, including, without limitation, making any statement, oral or written, which portrays Elmax, its affiliates, owners, officers, agents, representatives and management employees or any of the Released Parties in an unfavorable light or subjects any of them to scorn, obloquy or ridicule.” (Agmt. 4 7.) While the Agreement does contain a similar non-disparagement clause by Defendants (see Agmt. 4 8), it does not include a carve-out for truthful statements about Plaintiff's experience litigating his case. See Mendoza v. Kidz Korner of New Rochelle Inc., No. 20-CV-05761 (JLC),

, at *1 (S.D.N.Y. Feb. 24, 2021) (non-disparagement provision must be mutual and include carve-out for truthfulness). Without such a carve-out, the “provision contravenes the remedial purposes of the [Fair Labor Standards Act] and is not fair and reasonable.” Howard v. Don Coleman Advert. Inc.,

No. 16-CV-5060 (JLC),

, at *2 (S.D.N.Y. Feb. 28, 2017) (internal citations and alterations omitted). Accordingly, no later than May 11, 2021, the parties shall either: (a) file a revised settlement agreement with a mutual non-disparagement clause that provides for the required carve out or (b) file a joint letter withdrawing their motion for settlement approval and stating their intent to proceed with litigation. SO ORDERED. DATED: New York, New York April 27, 2021 frist A, Cann STEWART D. AARON United States Magistrate Judge