Tolentino v. Thai Smile Restaurant Corp.

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED JERONIMO TOLENTINO, DOC DATE FILED: 6/15/2022 Plaintiff, -against- Civ. 8812 (AT) THAI SMILE RESTAURANT CORP. (D/B/A TUE THAI FOOD), PRASONG ORDER PORNPICHAYANURAK , and SUPHAKIT SAEUE AKA NICK, Defendants.

ANALISA TORRES, District Judge: The Court has been advised that the parties have reached a settlement in this Fair Labor Standards Act (“FLSA”) case. ECF No. 51.

This action shall not be dismissed with prejudice unless the settlement agreement has been approved by the Court or the Department of Labor (“DOL”). See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). Accordingly, to the extent the parties seek dismissal with prejudice, they must either file a joint letter motion requesting that the Court approve the settlement agreement or, alternatively, provide documentation of the approval by DOL. Any letter motion, along with the settlement agreement, must be filed on the public docket by July 13, 2022. The letter motion must explain why the proposed settlement is fair and reasonable and should discuss, at a minimum, 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 respective 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.

Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (quoting Medley v. Am. Cancer Soc’y, No. 10 Civ. 3214, 2010 WL 3000028, at *1 (S.D.N.Y. July 23, 2010)). The letter must also address whether there is a bona fide dispute as to the number of hours worked or the amount of compensation due and how much of the proposed settlement plaintiff's attommey shall be seeking as fees. See Cheeks, 796 F.3d at 202, 207.

Any request for attorneys’ fees must be accompanied by supporting documentation. “Tn this circuit, a proper fee request ‘entails submitting contemporaneous billing records documenting, for each attorney, the date, the hours expended, and the nature of the work done.’” Lopez v. Nights of Cabiria, LLC, 96 F. Supp. 3d 170, 181 (S.D.N-Y. 2015) (quoting Wolinsky, 900 F. Supp. 2d at 336).

Absent special circumstances, the Court will not approve any settlement agreement that is filed under seal or in redacted form. See id. at 177 n. 44. In addition, absent compelling circumstances, the Court will not approve settlement agreements containing sweeping non-disclosure provisions, see id. at 179-80; Flood v. Carlson Rests. Inc., No. 14 Civ. 2740, 2015 WL 4111668, at *2 (S.D.N.Y. July 6, 2015), or broad releases waiving claims having no relation to FLSA issues, see Flood, 2015 WL 4111668, at *2.

Additionally, the parties are reminded that they may consent to proceed before the Honorable Sarah Netburn, who would then oversee the approval of the settlement. Ifthe parties consent to Judge Netburn’s jurisdiction, by June 29, 2022, they shall file a fully executed Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form, available at https://nysd.uscourts.gov/node/754 on the docket. The parties are free to withhold consent without negative consequences.

If the Court approves that form, all further proceedings will then be conducted before Judge Netburn rather than before the undersigned. An information sheet on proceedings before magistrate judges is also attached to this order. Any appeal would be taken directly to the United States Court of Appeals for the Second Circuit, as it would be if the consent form were not signed and so ordered.

Any pending motions are moot. All conferences and deadlines are vacated.

SO ORDERED.

Dated: June 15, 2022 New York, New York ANALISA TORRES United States District Judge AQ 85 (Rev. 01/09) Notics, Consent, and Rafurance of a Civil Action m a Magistrate Judge UNITED STATES DISTRICT COURT for the District of YD Plainigff ) wv ) (Cnral Acton No. aD Defendonr ) NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE Notice of a magistrate judges availability. A United States magistrate podge of this court is available to conduct all proceedings in this civil action (include a pory of poojury tial) and to order the entry of a final judgment The judgment may then be appealed directly to the United States court of appeals bike amy other pod=ment of this court. A magistrate judge may exercise this authonty only ifall partes voluntanly consent.

Youmay consent to have your case referred to. a magistrate judze, or you may withhold your consent without adverse substantive consequences. The name of any party withboldme consent will not be revealed to any judge who may otherwise be mvolved with your case.

Consent to a magistrate judee ‘s authority. The followme partes consent to have a United States magistrate padze Parties” printed names Signatures of parties or attorneys Dates Reference Order IT TS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and order the entry of a final judgment m accordance with 78 U.S.C. § 636(c) and Fed KR. Cr. P73.

Date ‘District Judze’s signature Printed name. and tie Note: Retorn this fomm to the clerk of cout only if you are consenting to the exercise of ponsdicton by a United States marfistrate judge. Do mot retwm this form to a yodge.