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Angel Alirio Almendares v. OEG Fruit and Vegetable

2014 WL 2534880

April 8, 2014

Only the Westlaw citation is currently available.

United States District Court,

E.D. New York.

Angel Alirio ALMENDARES, et al., Plaintiffs,


OEG FRUIT AND VEGETABLE, et al., Defendants.

No. CV 2013–3413(MKB)(MDG).

Signed April 8, 2014.

Attorneys and Law Firms

Arthur Z. Schwartz, Richard Soto, Advocates for Justice, Chartered Attorneys, New York, NY, for Plaintiffs.

Michael D. Yim, Felicello Law, P.C., New York, NY, for Defendants.


GO, United States Magistrate Judge.

*1 Plaintiffs Angel Alirio Almendares and Teodosio Linares bring this collective action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and New York Labor Law §§ 198 and 663 alleging that OEG Fruit and Vegetable and an unidentified owner failed to pay plaintiff and other employees at their supermarket minimum wage, overtime, or spread of hours pay. Although this action was brought as a collective action, after amending the complaint to include both Almendares and Linares, no other plaintiffs have opted into this action.

Judge Brodie referred review of the parties’ settlement to me to report and recommend on the fairness of the proposed settlement. Following a fairness hearing on March 19, 2014, the parties submitted a revised proposed settlement to address concerns raised at the hearing. See ct doc. 15. Based on my familiarity with this action, the submissions filed, including the revised agreement, and the proceedings herein, I respectfully find that the settlement is fair and reasonable under the circumstances and recommend its approval.


Almendares filed this collective action on June 14, 2013. After an initial conference with this Court, plaintiff filed an amended complaint, which included Linares as a second plaintiff. See ct doc. 10 (Am.Compl.). On January 30, 2014, the parties filed the instant joint motion for approval of the settlement. Ct. doc 13 (Mot.). At a fairness hearing held on March 19, 2014, the Court found that the settlement was fair and reasonable under the circumstances, contingent on revisions regarding the scope of the release, the amount of attorneys’ fees, and the allocation of settlement proceeds between the two plaintiffs. On March 31, 2014, the parties filed the revised settlement agreement containing the discussed changes. See ct doc. 15.


Among the factors courts consider in evaluating the fairness of a settlement are: 1) the complexity, expense and likely duration of litigation; 2) the stage of the proceeding; 3) the risk of establishing liability; 4) the risk of establishing damages; 5) the ability of defendants to withstand a larger judgment and 6) the reasonableness in light of the best possible recovery and all risks of litigation. See Chapman–Green, 2013 WL 658245, at *1;Peralta v. Allied Contracting II Corp., 2011 WL 3625319, at *1 (E.D.N.Y.2011).

In the motion for approval of settlement, the defendants contended that plaintiff Almendares was employed by defendant for less than a month, based employment records from late 2011 to present. In addition, Almendares apparently has two other similar actions against employers that allege dates of employment that overlap with this action, suggesting that his claim that he worked over 72 hours per workweek was not supported by the evidence.

Thus, Almendares risks that he would not have been able to establish liability for the majority of the nearly twoyear period of employment claimed in the complaint, which would be eliminated with settlement.

*2 Defendants stated that they are considering filing a separate civil action against Linares for trespass, threats, and physical harm to individuals at the store that took place just before the amended complaint was filed. The settlement contains a release by defendants of such claims which benefits Linares as to the risk of suit he faces arising from that incident.

Defendants also advised that the defendant is a much smaller entity than alleged in the complaint and asserts that it could not afford a larger judgment. By settling, plaintiffs avoid the risk that the defendants would not be able to pay after a protracted litigation or later settlement.

The revised settlement agreement also adequately addresses the three concerns that the Court had raised at the fairness hearing. The revised agreement provides that the settlement of $10,000 will be allocated to each plaintiff in the amount of $3,333.33 each and the remaining one third to be paid in attorneys’ fees. I find that the amount of fees is reasonable in light of the expenses of counsel, the approximately ten hours the attorneys spent on this case, and counsel’s regular billing rate of $350 per hour. Additionally, the scope of defendants’ release as to plaintiff Linares has been satisfactorily clarified to include potential claims by defendants’ agents and similar entities.


For the foregoing reasons, I find that the proposed settlement is fair and reasonable under the circumstances, and respectfully recommend that the Court approve the proposed settlement.

This report and recommendation will be filed electronically on this date, and plaintiff is directed to send a paper copy to the defendants. Since the parties indicated that they concur with my recommendation, the period for filing objections is shortened to one week, on consent, from the day of the electronic filing of this report. Any objections must be filed, with a courtesy copy sent to the Honorable Margo K. Brodie by April 15, 2014. Failure to file objections within the specified time waives the right to appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).


All Citations

Not Reported in F.Supp.3d, 2014 WL 2534880

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