Motion-Secondary: Mark Burrell v. Skywest, Inc., Skywest Airlines, Inc.

On June 09, 2022 a Motion-Secondary was filed involving a dispute between Mark Burrell, and Skywest Airlines, Inc., Skywest, Inc., for Other Matters - Contract - Other in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------------X
MARK BURRELL, individually and on behalf of all others :
similarly situated, Index No.: 607535/2022
:
Plaintiff,
: AFFIRMATION OF
-AGAINST- FRANK J. MAZZAFERRO
:
SKYWEST, INC., and SKYWEST AIRLINES, INC.,
:
Defendants.
:
------------------------------------------------------------------------X

AFFIRMATION OF FRANK J. MAZZAFERRO IN SUPPORT OF
PLAINTIFF’S UNOPPOSED MOTION FOR SETTLEMENT

I, Frank J. Mazzaferro, an attorney duly admitted to practice law in the State of New York,

declare under penalty of perjury:

1. I am a partner at the firm of Fitapelli & Schaffer, LLP (“F&S”) in New York, New

York, Class Counsel herein. F&S is a nationally recognized 8 attorney law firm based in New

York City that represents plaintiffs in a wide variety of employment matters, including individual

and class action litigation involving wage and hour, discrimination, and harassment claims. F&S

has significant experience prosecuting wage and hour class and collective actions.

2. I am one of the lawyers primarily responsible for prosecuting Plaintiff’s claims.

3. I make these statements based on personal knowledge and would so testify if called

as a witness at trial.

PROCEDURAL HISTORY

4. On November 11, 2020, F&S notified Defendants of Plaintiff’s claims against

SkyWest and suggested the parties engage in pre-litigation settlement discussions regarding

alleged violations of the New York Labor Law (“NYLL”). Specifically, Plaintiff alleged that

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Defendants failed to provide Plaintiff and similarly situated Agents with timely payment of wages

on a weekly basis pursuant to NYLL § 191.

5. After Defendants engaged counsel, the parties’ respective counsel participated in

numerous telephone conferences and exchanged many e-mails, discussing the merits of and

defenses to the claims, and the possibility of settlement on a class-wide basis.

6. As a result of these communications, the parties agreed to participate in a class-

wide mediation before Ruth Raisfeld, Esq., an experienced and highly regarded wage and hour

class action employment mediator.

7. Over the course of several months, the parties exchanged documents and

information necessary to prepare for the class-wide mediation on January 18, 2022.

8. The Parties appeared via Zoom for a private mediation before Ms. Raisfeld on

January 18, 2022.

9. After a full day of mediation, the parties reached a class-wide settlement in

principle for Three Hundred Fifty Thousand Dollars (“350,000.00”). NYSCEF Dkt. No. 4, Fully

Executed Settlement Agreement and Release ¶ 1.26.

10. On June 9, 2022, Plaintiff filed a class action complaint against Defendant in the

Supreme Court of the State of New York, Nassau County, alleging Defendant violated the NYLL

by, among other things, failing to pay Plaintiff and Class Members spread of hours and failing to

provide accurate wage statements. NYSCEF Dkt. No. 1.

11. On September 1, 2022, the Court approved Plaintiff’s Motion for Preliminary

Approval. NYSCEF Dkt. No. 11.

RISK OF CONTINUED LITIGATION

12. The $350,000 “Settlement Fund” is a compromise figure. In reaching the

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settlement, F&S carefully evaluated the merits of the case and proposed settlement, took into

account the risks of establishing liability and obtaining class certification, and considered the time,

delay, and financial repercussions in the event of trialand appeal by Defendants. Additionally,

Defendants’ operations have been deeply affected by the ongoing Covid-19 pandemic. Although

Plaintiff believes that his claims have merit, he recognizes the legal, factual and procedural

obstacles to recovery, as Defendants have and will continue to contest Plaintiff’s claims if the

action does not settle. Moreover, even if this case was to proceed to trial, F&S recognizes that the

apparent strengths of Plaintiff’s claims are no guarantee against a complete or partial defense

verdict. While Plaintiff believes he would ultimately prevail on the merits of their claims, the

constantly changing caselaw of NYLL 191 increases the risks.

13. Further, obtaining and maintaining a class action may prove difficult. For instance,

in Scott v. Chipotle Mexican Grill, Inc., after 5 years of contested litigation, the court denied the

plaintiffs motion for class certification. See No. 12 Civ. 8333 (ALC)(SN), 2017 WL 1287512, at

*1 (S.D.N.Y. Mar. 29, 2017). Three years later, the Second Circuit affirmed denial of class

certification. Scott v. Chipotle Grill, Inc., Nos. 17-2208-cv, 18-359-cv (2d. Cir. Apr. 1, 2020). The

instant settlement in this matter alleviates the uncertainty associated with obtaining and

maintaining a class action through trial and makes financial recuperation available for Class

Members now.

14. In light of the strengths and weaknesses of the case, we believe the settlement easily

falls within the range of reasonableness because it achieves a significant benefit for Plaintiff and

Class Members in the face of significant obstacles and with minimal disruption to the Plaintiff’s

life.

15. The settlement negotiations were at all times hard fought at arm’s-length, and they

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have produced a result that F&S believes to be in the best interests of Class Members in light of

the costs and risks of continued litigation.

ALLOCATION FORMULA

16. The Net Settlement Fund will be distributed to each Class Member who timely files

a claim form, according to the formula set forth in the Settlement Agreement. NYSCEF Dkt. No.

4 ¶¶ 3.5(B)-(C). The formula provides that each Class Member will be assigned one point for each

week worked during the Relevant Time Period. Id. ¶ 3.5(B)(i). All points will then be added

together to obtain the Total Denominator. Id. ¶ 3.5(B)(i).

17. The net settlement amount received by each Class Member will then be determined

by dividing each Class Member’s points by the Total Denominator to determine each Class

Member’s Portion of the Net Settlement Fund, then multiplying each Class Member’s Portion of

the Net Settlement Fund by the Net Settlement Fund to determine each Class Member’s Individual

Settlement Award. Id. ¶ 3.5(B)(ii)(iii).

PRELIMINARY APPROVAL AND NOTICE TO THE CLASS

18. Plaintiff filed and Unopposed Motion for Preliminary Approval of Settlement

(“Preliminary Approval Motion”) on June 15, 2022. NYSCEF Dkt. No. 2, NYSCEF Dkt. No. 3,

and accompanying exhibits.

19. On September 1, 2022, the parties learned that the Court granted Plaintiff’s

Preliminary Approval Motion. NYSCEF Dkt. No. 11.

20. Following the Court’s Preliminary Approval Order, Defendant provided the Class

List to Rust Consulting (“Claims Administrator”) which contained 152 Class Members. Ex. A,

Affirmation of Jennifer Mills (“Mills Aff.”) ¶ 6.

21. On September 26, 2022, the Claims Administrator sent the Court-approved Class

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Notice by first-class mail to Class Members. Id. ¶ 8. The Notices informed Class Members of the

terms of the Settlement, of their right to opt out from or object to the Settlement, and the

implications of each such action. The Notices advised Class Members of applicable deadlines and

how Class Members could obtain additional information. The Notices also informed Class

Members of Plaintiff’s request for an Enhancement Award, as well as Class Counsel’s intention

to seek one-third of the Settlement Fund for attorneys’ fees, plus expenses for their out-of-pocket

expenses. NYSCEF Dkt. No. 6.

22. The deadline to opt-out or object for these individuals was November 12, 2022. Ex.

A, Mills Aff. ¶ 8.

23. During the class notice period, Class Counsel assisted the Claim Administrator by

speaking with numerous Class Members about the terms of the Settlement, and provided several

updated mailing addresses to the Claims Administrator.

24. On October 25, 2022, Counsel for the Defendants provided the Claims

Administrator with a list containing 29 additional Class Members’ names, last known addresses,

Social Security Numbers and applicable employment information. On October 31, 2022, Notice

was issued to these 29 Class Members notifying them that the deadline to opt-out or object for

these individuals was December 15, 2022. Id. ¶¶ 9-11.

25. One (1) Class Members opted out of the Settlement. Id. ¶ 15.

26. No Class Members objected to the Settlement. Id. ¶ 16.

27. The average individual settlement award is estimated to be $1,325.46 and the

highest individual award is estimated to be $2,838.34. Id. ¶ 17.

LEGAL ARGUMENT

I. THE PROPOSED SETTLEMENT SHOULD BE APPROVED

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28. CPLR § 908 requires judicial approval for any compromise of claims brought on a

class basis. “A class action shall not be dismissed, discontinued, or compromised without the

approval of the court.” CPLR § 908; see also Milton v. Bells Nurses Registry & Employment

Agency, Inc., No. 502303/2015, 2015 N.Y. Misc. LEXIS 4604, at *2 (Sup. Ct. Kings Cnty. Dec.

14, 2013); Ryan v. Volume Servs. Am., Inc., No. 652970/2012, 2013 N.Y. Misc. LEXIS 932, at *1

(Sup. Ct. Mar. 7, 2013); Fiala v. Metro. Life Ins. Co., Inc., 899 N.Y.S.2d 531, 537 (Sup. Ct. 2010).

New York courts regularly refer to the federal standards in making this determination, in

recognition that the two statutory schemes are similar. Fernandez v. Legends Hospitality, LLC,

No. 152208/2014, 2015 N.Y. Misc. LEXIS 2193, at *3 (Sup. Ct. June 20, 2015) (citing Fiala, 899

N.Y.S.2d at 537-38 (collecting cases)). Courts examine “the fairness of the settlement, its

adequacy, its reasonableness and the best interests of the class members.” Mancia v. HSBC

Securities (USA) Inc., No. 9400/2015, 2016 N.Y. Misc. LEXIS 496, at *2 (Sup. Ct. Kings Cnty.

Feb. 19, 2016) (quoting Milton, 2013 N.Y. Misc. LEXIS 4604, at *2 (citing Fiala, 899 N.Y.S.2d

at 537)); see also Rosenfeld v. Bear Stearns & Co., 237 A.D.2d 199 (1st Dep’t 1997); Joel A. v.

Giuliani, 218 F.3d 132, 138 (2d Cir. 2000).

A. The Proposed Settlement is Fair, Adequate, and Reasonable

29. The relevant factors for a court’s review when determining whether a settlement is

fair, reasonable, and adequate include “the likelihood of success, the extent of support from the

parties, the judgment of counsel, the presence of bargaining in good faith, and the nature of the issues

of law and fact.” Mancia, 2016 N.Y. Misc. LEXIS 496, at *2 (quoting Lopez v. Dinex Group, LLC,

No. 155706/2014, 2015 N.Y. Misc. LEXIS 3657, at *2 (Sup. Ct. Oct. 6, 2015) (citing In re Colt

Indus. Shareholder Litig., 155 A.D.2d 154, 160 (1st Dep’t 1990)); see also Peck v. AT&T Corp., No.

601587/2000, 2002 N.Y. Misc. LEXIS 2026, at *14 (Sup. Ct. July 26, 2002). A court should also

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“balanc[e] the value of [a proposed] [s]ettlement against the present value of the anticipated recovery

following a trial on the merits, discounted for the inherent risks of litigation.” Id. (quoting Ryan, 2013

N.Y. Misc. LEXIS 932, at *3) (citing Klein v. Robert’s Am. Gourmet Food, Inc., 28 A.D.3d 63, 73

(2d Dep’t 2006)). All of these factors weigh in favor of approving the Settlement in this case.

1. Likelihood of Success and the Nature of the Issues of Law and Fact.

30. There is no doubt that the Parties significantly dispute both the factual and legal

issues in this matter. Although Plaintiff believes his claims have merit, he recognizes the legal,

factual, and procedural obstacles to recovery, as Defendants has and will continue to vigorously

contest Plaintiff’s claims if the action does not settle. Specifically, Defendant contends that

Plaintiff, along with other Hourly Employees, were paid their correct wages.

31. These significant disputed legal and factual issues support approval of the

Settlement. See Fernandez, 2015 N.Y. Misc. LEXIS 2193, at *2; Ryan, 2013 N.Y. Misc. LEXIS

932, at *2. Accordingly, there are substantial risks in establishing both liability and damages for

the Class, and resolution of this action would hinge on the determination of complex factual and

legal issues.

2. Extent of Support from the Parties.

32. In evaluating the degree of class members’ support for a settlement, courts look to

the proportion of the class that objects to and opts out of the settlement. “The favorable reception

by the class also constitutes strong evidence of the fairness of the proposed [s]ettlement and support

judicial approval.” Mancia, 2016 N.Y. Misc. LEXIS 496, at *3 (quoting Milton, 2015 N.Y. Misc.

LEXIS 4604, at *2); see also Ryan, 2013 N.Y. Misc. LEXIS 932, at *4. In addition, “[t]he fact that

the vast majority of class members neither objected nor opted out is a strong indication of fairness.”

DeLeon v. Wells Fargo Bank, N.A., No. 12 Civ. 4494 (RLE), 2015 WL 2255394, at *4 (S.D.N.Y. May

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7, 2015) (internal citations and quotation marks omitted). “Where relatively few class members opt-

out or object to the settlement, the lack of opposition supports court approval of the settlement.”

Hart v. RCI Hospitality Holdings, Inc., No. 09 Civ. 3043 (PAE), 2015 WL 5577713, at * 8

(S.D.N.Y. Sept. 22, 2015) (quoting Tiro v. Pub. House Inv., LLC, No. 11 Civ. 7679 (CM), 2013

WL 4830949, at *7 (S.D.N.Y. Sept. 10, 2013).

33. The Class Members have shown an enthusiastic response and are eagerly awaiting

the finalization of the Settlement. The Claims Administrator mailed notice of the Settlement to a

total of 181 Class Members. Ex. A, Mills Aff. ¶¶ 9, 11. From this, 1 Class Members opted out of

the Settlement and zero Class Members objected to the Settlement. Id. ¶¶ 15-16. This

overwhelming response and lack of objections serves as evidence of Class Members’ satisfaction

with the Settlement, the fairness and adequacy of the Settlement, and supports judicial approval.

See Milton, 2015 N.Y. Misc. LEXIS 4604, at *2; see also Ryan, 2013 N.Y. Misc. LEXIS 932, at *4;

DeLeon, 2015 WL 2255394, at *5 (“The fact that the vast majority of class members neither

objected nor opted out is a strong indication of fairness.”).

3. Balance of the Settlement Value against the Value of Anticipated
Recovery.

34. The value of the Settlement compared to the present value of an anticipated

recovery after trial, discounted for litigation risks, weighs heavily in favor of approval of the

Settlement. The Western District of New York explained this consideration as:

The determination whether a [s]ettlement is reasonable does not
involve the use of a mathematical equation yielding a particularized
sum. Instead, there is a range of reasonableness with regard to a
[s]ettlement – a range which recognizes the uncertainties of law and
fact in any particular case and the concomitant risks and costs
necessarily inherent in taking any litigation to completion.

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Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005) (internal quotation marks

and citations omitted).

35. Defendants have agreed to settle this case for a total “Settlement Fund” of $350,000.

Based on F&S’s analysis of the potential damages, along with the data provided by the Plaintiff and

Defendants, the Settlement represents a significant percentage of the recovery that Class Members

would have achieved had they prevailed on all of their claims and survived an appeal, and a

substantial portion of what Defendants would be able to pay if faced with a judgment. If Defendants

were successful in proving that Hourly Employees received all of their required wages, then Class

Members could receive little to nothing at all. Even if a judgment were obtained against Defendants

at trial, the relief might be no greater, and indeed might be less, than that provided by the proposed

settlement.

36. In sum, although there is a possibility that Class Members could recover more money

after trial, the Settlement provides the significant benefit of a guaranteed and substantial payment to

Class Members, rather than “speculative payment of a hypothetically larger amount years down the

road.” Lopez, 2015 N.Y. Misc. LEXIS 3657, at *6 (citing Teachers Ret. Sys. v. A.C.L.N. Ltd., No.

01 Civ. 11814 (MP), 2004 WL 1087261, at *5 (S.D.N.Y. May 14, 2004)).

4. Judgment of Counsel.

37. F&S “is comprised of experienced employment attorneys with a very good

reputation among the employment law bar and have years of litigation experience in wage and

hour matters in state and federal courts.” Milton, 2015 N.Y. Misc. LEXIS 4604, at *2; see also

Illoldi v. Koi NY LLC, No. 15 Civ. 6838 (VEC), 2016 WL 3099372, at *3 (S.D.N.Y. May 31,

2016); Hadel v. Gaucho, LLC, No. 15 Civ. 3706 (RLE), 2016 WL 1060324, at *3 (S.D.N.Y. Mar.

14, 2016). See also NYSCEF Dkt. No. 5, F&S’ Background. Class Counsel has years of experience

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in the prosecution and resolution of wage and hour cases.

38. As discussed above, F&S has thoroughly analyzed Defendants’ factual and legal

defenses, examined data, documents and other information produced by Defendants, reviewed the

defenses, and assessed the strength of Defendants’ arguments. Additionally, in considering the

possibility of settlement, F&S accounted for the time, delay, and costs of trial and appeal. In light

of the strengths and weaknesses of the case, Class Counsel believes that the Settlement easily falls

within the range of reasonableness because it achieves a significant benefit for the Class Members

where failure at trial is possible.

5. Presence of Bargaining in Good Faith.

39. A presumption of fairness arises where a settlement was “reached in arm’s-length

negotiations between experienced, capable counsel after meaningful discovery.” Wal-Mart Stores,

Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005) (internal quotation omitted). Relevant

factors include “[t]he experience of counsel, the vigor with which the case was prosecuted, and the

coercion or collusion that may have marred the negotiations themselves[.]” Hicks v. Morgan

Stanley & Co., No. 01 Civ. 10071 (RJH), 2005 WL 2757792, at *5 (S.D.N.Y. Oct. 24, 2005)

(internal quotation omitted). If the settlement was achieved through experienced counsels’ arm’s-

length negotiations, a court “should be hesitant to substitute its judgment for that of the parties

who negotiated the [s]ettlement.” In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ.

10240 (CM), 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007).

40. Here, F&S is highly experienced in litigating complex wage and hour class and

collective actions. NYSCEF Dkt. No. 5, F&S’ Background. Furthermore, this negotiation was

vigorously fought, and Settlement was reached by the Parties at mediation after significant

informal discovery and arms-length negotiations between the parties.

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41. Courts often grant final approval of class settlements in cases where the parties

conducted the same amount or even less discovery than the amount accomplished in this case. See,

e.g., Flores v. One Hanover, LLC, No. 13 Civ. 5184 (AJP), 2014 WL 2567912, at *3 (S.D.N.Y. June

9, 2014) (finding settlement procedurally fair where the parties were represented by experienced

counsel); Yuzary v. HSBC Bank USA, N.A. No. 12 Civ. 3693 (PGG), 2013 WL 5492998, at *6

(S.D.N.Y. Oct. 2, 2013) (finding that an informal exchange of information was “sufficient”); Beckman

v. Keybank, N.A., 293 F.R.D. 467, 475 (S.D.N.Y. 2013) (granting final approval where parties reached

pre-suit settlement and engaged in informal discovery only). Therefore, it is clear that the Parties

bargained in good faith, and this factor weighs in favor of approving the Settlement.

42. For the foregoing reasons, the Settlement is fair, reasonable, and adequate, and the

Court should approve it.

B. The Enhancement Award Should Be Awarded to The Plaintiff.

43. Pursuant to the Settlement Agreement, and subject to Court approval, Enhancement

Award will be given to Plaintiff, in addition to his individualized settlement award, in recognition

of the services she rendered on behalf of the Class. This enhancement award totals $10,000.00.

NYSCEF Dkt. No. 4, ¶ 3.3(A). For the following reasons, the Court should approve the

Enhancement Award.

44. A court may grant an enhancement award in class action suits. Such awards “reward[]

the named plaintiffs for the effort and inconvenience of consulting with counsel over the many years

[a] case was active and for participating in discovery.” Mancia, 2016 N.Y. Misc. LEXIS 496, at *4

(quoting Cox v. Microsoft Corp., 26 Misc.3d 1220(A), at *4 (N.Y. Sup. Ct. 2007)). Service and/or

enhancement awards “are particularly appropriate in the employment context . . . [where] the plaintiff

is often a former or current employee of the defendant, and thus . . . he has, for the benefit of the

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class as a whole, undertaken the risks of adverse actions by the employer or co-workers.” Milton,

2015 N.Y. Misc. LEXIS 4604, at *5 (quoting Tiro, 2013 WL 4830949 at *11).

45. Here, the above Plaintiff’s services were instrumental to the initiation and

prosecution of this action, and they expended considerable time and effort to assist with this case.

Their services included, but were not limited to: informing counsel of the facts initially and as the

case progressed; providing F&S with relevant documents in his possession; being available by

phone and providing additional information during the mediation; and reviewing and commenting

on the terms of the settlement. See also Mancia, 2016 N.Y. Misc. LEXIS 496, at *7 (citing Parker v.

Jekyll & Hyde Entm’t Holdings, L.L.C., No. 08 Civ. 7670 (BSJ)(JCF), 2010 WL 532960, at *1 (S.D.N.Y.

Feb. 9, 2010)) (recognizing efforts of the plaintiffs including meeting with counsel, reviewing

documents, formulating theory of case, identifying and locating other class members to expand

settlement participants, and attending court proceedings).

46. Plaintiff also assumed significant risks in prosecuting this action. Specifically, these

Plaintiff took a chance believing that he might be “black balled” for the sake of the Class. It is

Plaintiff’s view that in the employment context, where workers are often blacklisted if they are

considered “trouble makers,” class representatives are particularly vulnerable to retaliation. See

Mancia, 2016 N.Y. Misc. LEXIS 496, at *7-8 (citing Silberblatt v. Morgan Stanley, 524 F. Supp.

2d 425, 435 (S.D.N.Y. 2007) (“A class representative who has been exposed to a demonstrable

risk of employer retaliation or whose future employability has been impaired may be worthy of

receiving an additional payment, less other be dissuaded.”). Even where, as here, there is not a

record of actual retaliation, service awards are appropriate in recognition of the risk of retaliation

assumed by lead plaintiffs for the benefit of absent class members. Id. at *8. The Class Notice

informed Class Members of the Enhancement Award to Plaintiff, in recognition of the services

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they provided to the Class. NYSCEF Dkt. No. 6. No Class Member objected to the Enhancement

Award, and these Plaintiff has no conflicts with any Class Member.

47. The Enhancement Award totaling $10,000.00 is reasonable and well within the

range awarded by New York courts in similar matters. See e.g. Purnell v. IS Chrystie Management

LLC, No. 603037/2022, NYSCEF No. 11, (Sup. Ct. Nassau Cty. June 10, 2022) (approving a $20,000

service award to the named plaintiff; Hyken v. Greenwich BBQ, LLC, No. 608689/2020, NYSCEF

No. 19 (Sup. Ct. Nassau Cty. June, 2, 2021) (granting a total of $50,000 in service awards ranging

from $8,750 to $15,000); Guzman v. Del Frisco’s of New York, LLC, No. 617666/2019, NYSCEF

No. 61 (Sup. Ct. Nassau Cty. Mar. 18, 2021) (granting a total of $50,000.00 in enhancement awards

to three plaintiffs); Jacobs v. Washington Place, LLC, No. 503148/2017, NYSCEF No. 51 (Sup.

Ct. Kings Cty. Aug. 15, 2017) (granting a total of $50,000.00 in enhancement awards to two

plaintiffs); Murillo v. 12 East 12 Associates, LP, No. 503201/2018; NYSCEF No. 47 (Sup. Ct. Kings

Cty. Jan. 2, 2019 (granting service awards ranging from $10,000.00 to $20,000.00 to the named

plaintiffs, totaling $60,000.00); Campos v. Chop’t Creative Salad Company, LLC, No.

514236/2017, NYSCEF No. 21 at 2 (Sup. Ct. Kings Cty. Dec. 22, 2017) (granting $20,000.00 to

a single named plaintiff); Rogers v. Red Robin International Inc., No. 511180/2016, NYSCEF No.

14 (Sup. Ct. Kings Cty. Aug. 9, 2016) (awarding a $25,000.00 service award to the named

plaintiff); Matheson v. T–Bone Rest., LLC, No. 09 Civ. 4214, 2011 WL 6268216, at *9 (S.D.N.Y.

2011) (approving a service award of $45,000.00 for a class representative in a wage and hour

action); Willix v. Healthfirst, Inc., No. 07 Civ. 1143, 2011 WL 754862, at *7 (E.D.N.Y. Feb. 18,

2011) (finding service awards in wage and hour action of $30,000.00 and $15,000.00 to be

reasonable); Mentor v. Imperial Parking Sys., Inc., No. 05 Civ. 7993, 2010 WL 5129068, at *1-2,

*5 (S.D.N.Y. Dec. 15, 2010) (granting $40,000 and $15,000 service awards in wage and hour

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action).

48. Given his time, assistance, and development of the case as well as the threat of

being subject to potential retaliation, the Enhancement Award to Plaintiff is appropriate and

justified as part of the overall Settlement.

C. Class Counsel’s Attorneys’ Fees and Costs Should Be Approved.

49. Plaintiff’s Unopposed Motion for Final Approval includes a request for attorneys’

fees of one-third of the Settlement Fund, as well as reimbursement of litigation costs and out-of-

pocket expenses incurred by F&S in prosecuting and successfully resolving this matter. NYSCEF

Dkt. No. 4, ¶ 3.2.

50. The Notices informed Class Members that F&S will apply to the Court for

attorneys’ fees in the amount of one-third of the Settlement Fund, and reimbursement of litigation

costs and expenses. NYSCEF Dkt. No. 6. No Class Member objected to Class Counsel’s request

for attorneys’ fees and/or costs. Ex. A, Mills Aff. ¶ 16.

51. The CPLR authorizes a court to grant attorneys’ fees to class counsel who obtain a

judgment on behalf of a class: “If a judgment in an action maintained as a class action is rendered in

favor of the class, the court in its discretion may award attorneys’ fees to the representatives of the

class and/or to any other person that the court finds has acted to benefit the class based on the

reasonable value of legal services rendered[.]” CPLR § 909. For the following reasons, the Court

should award Class Counsel’s request for one-third of the Gross Settlement Fund, as well as

reimbursement of their litigation costs.

1. State Courts in New York Frequently Award Class Counsel One-
Third of the Fund in Class Actions.

52. New York State Courts frequently award attorneys’ fees of one-third of class

settlements. Moreover, Class Counsel has frequently been awarded one-third of total settlement funds

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in class actions approved by New York State Supreme Courts. See, e.g., Heffron v. The Boatyard Grill,

LLC, No. 611218/2022, NYSCEF No. 15 (Sup. Ct. Nassau Cty. Nov. 29, 2022); Stepny v. Lane Bryant

Brands Opco, LLC, No. 606499/2022, NYSCEF No. 14 (Sup. Ct. Nassau Cty. Sept. 16, 2022); Wisdom

v. Walgreen Co., No. 614014/2021, NYSCEF No. 19 (Sup. Ct. Nassau Cty. Sept. 14, 2022); Crews v.

Bluetriton Brands, Inc., No. 608925/2022, NYSCEF No. 10 (Sup. Ct. Nassau Cty. Sept. 12, 2022);

Burrell v. Skywest, Inc., No. 607535/2022, NYSCEF No. 11 (Sup. Ct. Nassau Cty. Sept. 1, 2022);

McClellan v. NPSG Global, LLC, No. 608671/2022, NYSCEF No. 10 (Sup. Ct. Nassau Cty. Aug. 11,

2022); Sochocki v. Running Supply, Inc., No. 605640/2022, NYSCEF No. 12 (Sup. Ct. Nassau Cty.

Aug. 4, 2022); Parrilla v. Inficon Inc, No. 606617/2022, NYSCEF No. 13 (Sup. Ct. Nassau Cty. Aug.

2, 2022); Rodriguez v. Delta Air Lines, Inc., No. 602842/2021, NYSCEF No. 21 (Sup. Ct. Nassau Cty.

July 26, 2022); Purnell v. IS Chrystie Management LLC, No. 603037/2022, NYSCEF No. 11, (Sup.

Ct. Nassau Cty. June 10, 2022) (Marber, J.); Do Hyan Park et al v. Obaltan, Inc. et al., No.

614747/2021, NYSCEF No. 8 (Sup. Ct. Nassau Cty. May 23, 2021); Cucuzza v. National Debt Relief,

LLC, No. 601631/2021, NYSCEF No. 31 (Sup. Ct. Nassau Cty. Apr. 20, 2022); Cortes v. Mexican

Hospitality Operator LLC, No. 601406/2021, NYSCEF No. 18 (Sup. Ct. Nassau Cty. Feb. 28, 2022;

Gabriel v. Homyn Enterprises Corp., No. 504595/2021, NYSCEF No. 15 (Sup. Ct. Kings. Cty. Nov.

23, 2021); Coba v. Wagamama USA, LLC, No. 614988/2020, NYSCEF No. 17 (Sup. Ct. Nassau Cty.

November 3, 2021); Flowers v. FSNY Restaurant Associates, LLC, No. 600976/2021, NYSCEF No.

19 (Sup. Ct. Nassau Cty. Oct. 21, 2021); Arredondo v. Titan Staffing Systems, Inc., No. 610074/2020,

NYSCEF No. 18 (Sup. Ct. Nassau Cty. Oct. 13, 2021); Cucuzza v. National Debt Relief, LLC, No.

601631/2021, NYSCEF No. 16 (Sup. Ct. Nassau Cty. Sept. 30, 2021) Robinson, Jr. v. Lake Trout LLC,

No. 505867/2020, NYSCEF No. 21 (Sup. Ct. Kings Cty. Jun. 25, 2021); Hyken v. Greenwich BBQ,

LLC, No. 608689/2020, NYSCEF No. 19 (Sup. Ct. Nassau Cty. June, 2, 2021); Figueroa v. United

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American Security, LLC, No. 613892/2020, NYSCEF No. 21 (Sup. Ct. Nassau Cty. May 24, 2021);

Guzman v. Del Frisco’s of New York, LLC, No. 617666/2019, NYSCEF No. 61 (Sup. Ct. Nassau

Cty. Mar. 18, 2021); Hazel v. NYC Burger No. I, LLC, No. 523822/2018, NYSCEF No. 36 (Sup. Ct.

Kings Cty. Mar. 25, 2020).

53. These fees are also consistent with the retainer agreements entered into by Plaintiff,

which provide for counsel to receive one-third of any recovery. These retainer “agreements are

strong evidence of what members of the class have found to be a reasonable fee.” Friedman v.

Northville Indus. Corp., No. 2085/1988, 1991 WL 11764344, at *3 (N.Y. Sup. Ct. Suffolk Cnty.

Dec. 4, 1991). Recognizing the “significant risks” undertaken by attorneys who work on

contingency, the New York State Court of Appeals has also upheld contingency fees of one-third or

higher, where such fee arrangements are embodied in executed retainer agreements. See In re

Lawrence, 24 N.Y.3d 320 (2014) (upholding 40 percent contingency and stating that, “[a]s a general

rule, we enforce clear and complete documents, like the retainer agreement, according to their

terms”) (citation omitted).

54. In addition, Class Counsel’s fee should be calculated as percentage of the full

amount of money that the settlement made available to the class. This is the best measure of what

Class Counsel accomplished. The Second Circuit has stated that an “allocation of fees by

percentage should . . . be awarded on the basis of the total funds made available, whether claimed

or not.” Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir. 2007). “The value of

legal service rendered in the creation of a settlement fund [is not] diminished by the failure of

beneficiaries to cash in, regardless of what happens to the surplus.” Alleyne v. Time Moving &

Storage, 264 F.R.D. 41 at 59 (E.D.N.Y Jan. 28, 2010); see also Masters, 473 F.3d at 437 (“The

entire Fund, and not some portion thereof, is created through the efforts of counsel at the instigation

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of the entire class” and thus fees should be allocated based on “total funds made available, whether

claimed or not.”).

2. Factors to Determine Reasonable Attorneys’ Fees

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Dawn Jimenez Track Judge’s New Case

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January 17, 2023

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Motion-Secondary: Mark Burrell v. Skywest, Inc., Skywest Airlines, Inc.

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