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FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LANGE CAMPBELL, individually and on behalf of all
other persons similarly situated, Index No.: 160513/2018
Plaintiffs,
-against-
NEW YORK BOILER, INC., RICHARD BERGER
and DONALD BERGER,
Defendants.
ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENT,
CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT
OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL, APPROVAL OF THE PROPOSED
NOTICE OF CLASS ACTION SETTLEMENT
AND THE CLAIM FORM AND RELEASE
WHEREAS, this matter came before the Court on Plaintiffs’ unopposed Motion for
Approval of Class Action Settlement, Conditional Certification of the Settlement Class,
Appointment of Plaintiffs’ Counsel as Class Counsel, and Approval of Plaintiffs’ Proposed Notice
of Settlement of Class Action Lawsuit and the Claim Form (“Motion for Approval”); and
WHEREAS, the Court has reviewed the Affirmation of Lloyd Ambinder, Esq.,
(“Ambinder Affirmation”) with exhibits, and all other papers submitted in connection with the
Motion for Preliminary Approval;
IT IS HEREBY ORDERED AS FOLLOWS:
I. Approval of the Settlement Agreement
1. The Court grants approval of the settlement memorialized in the Settlement
Agreement and Release (“Settlement Agreement”), attached as Exhibit A to the Ambinder
Affirmation dated February 15, 2023, and directs the Parties to carry out the settlement according
to the terms of the Settlement Agreement. The Settlement Agreement is hereby incorporated into
this Order.
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FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023
2. The terms and conditions of the Settlement Agreement were the result of good faith,
arms-length settlement negotiations between experienced counsel, with the assistance of
experienced mediator Martin Scheinman, Esq., and the parties have met all necessary conditions
for preliminary approval to resolve this lawsuit. The Court finds that the terms and conditions of
the settlement memorialized in the Settlement Agreement are fair, adequate and reasonable as to
all Class Members (defined below) when balanced against the probable outcome of further
litigation relating to liability and damages issues and, therefore, meet the requirements for approval
such that notice to the Class about the settlement is appropriate.
II. Conditional Certification of the Class
3. The Court conditionally certifies the following class under CPLR §§ 901 and 902
for settlement purposes only:
Each and every person who was an hourly-paid employee of NEW YORK BOILER,
INC. (“NYB”) at any time during the period November 13, 2012 through [APPROVAL
ORDER DATE] who performed boiler maintenance and repair work upon New York
City Housing Authority (“NYCHA”) projects for any length of time pursuant to contracts
entered into between NYCHA and NYB (the “Class”). The defined class shall not include
any clerical, administrative, professional, or supervisory employees. Collectively, all
Class Members are referred to as the “Class” or “Settlement Class”.
4. CPLR § 901 (a) (1) is satisfied because the class of approximately 175 individuals
is so numerous that joinder of all members, whether otherwise required or permitted, is
impracticable.
5. CPLR § 901 (a) (2) is satisfied because there are questions of law or fact common
to the class which predominate over any questions affecting only individual members.
6. CPLR § 901 (a) (3) is satisfied because the claims of the representative party is
typical of the claims or defenses of the class.
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FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023
7. CPLR § 901 (a) (4) is satisfied because the representative parties will fairly and
adequately protect the interests of the class.
8. CPLR § 901 (a) (5) is satisfied because in this wage and hour action a class action
is superior to other available methods for the fair and efficient adjudication of the controversy.
III. Appointment of Plaintiffs’ Counsel as Class Counsel
9. The Court appoints Plaintiffs’ Counsel, Virginia & Ambinder, LLP as Class
Counsel because the firm’s experience and credentials satisfy all of the requirements of CPLR §
901 (a) (4).
10. In particular, Virginia & Ambinder, LLP, did substantial work in identifying,
investigating, and preliminarily settling Named Plaintiff and Class Members’ claims. Additionally,
Virginia & Ambinder, LLP has extensive experience litigating and settling wage and hour class
and collective action cases of this type.
IV. Notice and Claim Form
11. The Court approves the form of the Notice of Settlement of Class Action Lawsuit
(“Notice”) and Claim Form attached as Exhibits B and C to the Ambinder Affirmation,
respectively, and directs their publication to Class Members in accordance with the terms of the
Settlement Agreement and this Order.
12. The contents of the Notice and Claim Form fully comply with due process and
CPLR § 908.
13. The Notice is found to be the best practicable means of providing adequate notice
under the circumstances and shall constitute due and sufficient notice of the proposed settlement
and the opportunity for a fairness hearing to all persons affected by the settlement in full
compliance with the notice requirements of CPLR §§ 904 and 908.
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FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023
V. Class Action Settlement Procedure
21. For purposes of this Order, all terms not otherwise defined have the same meanings
set forth in the Settlement Agreement.
22. The following summarizes the dates that shall govern the schedule in this action:
Within ten (10) days of the Class Counsel shall file the unopposed Motion for
signing of this Agreement. Approval by Order to Show Cause.
Within ten (10) days after the Parties shall engage the Settlement Claims
signing of this Agreement. Administrator.
Within thirty five (35) days of Defendants will provide the Settlement Claims
the signing of the Approval Administrator with the Class Member List as set
Order by the Court. forth in this Agreement.
Within thirty (30) days after Mailing of Notice of Class Action Settlement and
receipt of the Class Member Claim Form by Claims Administrator.
Mailing List.
Sixty (60) days after date of Last day for Class Members to submit written
first mailing of Class Notice. objections to the Settlement (“Bar Date”).
Sixty (60) days after date of Last day for Class Members to file Request for
first mailing of Class Notice. Exclusions from the Settlement (“Bar Date”).
Sixty (60) days after date of Last day for Class Members to submit a Valid
first mailing of Class Notice. Claim Form (“Bar Date”).
Seventy-five (75) days after Late Claim Bar Date: Unless otherwise agreed to
date of first mailing of Class by the parties or directed by the Court, the last day
Notice. for Class Members who failed to file the Claim
Form by the Bar Date due to such factors as change
of address, military service, hospitalization, or
other extraordinary circumstances.
Fifteen (15) days after Bar Claims Administrator shall certify jointly to Class
Date. Counsel and Defense Counsel the following: (a) a
list of all Objectors with a copy of objection; (b) a
list of all opt-outs with a copy of opt-out form; (c) a
list of all Class Members who timely submitted
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FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023
Claim Forms during the Claim Period and qualify
as Authorized Claimants, and (d) a list of all Class
Members who submitted late or otherwise
defective Claim Forms.
No later than five (5) days Class Counsel shall file any objections with the
before Fairness Hearing days Court, along with an affidavit from the Settlement
after Bar Date. Claims Administrator and an affirmation from
Class Counsel summarizing the notice and claim
process, as well as the final settlement allocation to
be deposited into the Qualified Settlement Fund.
Class Counsel’s affirmation shall include a
proposed Final Order.
Fairness Hearing held -- No DATE: ________________________, 2023
earlier than One Hundred TIME: ________________________. m
Twenty 120 days after
Approval Order Signed. LOCATION: ___________________________
_______________________________________
Thirty-one (31) days after Effective Date.
service of Notice of Entry of
the signed Final Order
approving this Agreement,
and not before June 30, 2023.
No later than fifteen (15) days Defendants shall fund the Qualified Settlement
after the Effective Date. Fund by wire transfer in an amount equal to the
sum of: (1) Class Counsel’s approved attorneys’
fees, costs, and expenses, (2) the Settlement Claims
Administrator’s approved fees and costs, (3) the
amount of the approved Service Award, (4) the
Reserve Amount, and (5) the Net Settlement
Amount (i.e., the sum of the amounts payable to
Authorized Claimants who submitted Claim Forms
on or before the Bar Date).
IT IS SO ORDERED THIS _____ DAY OF _____________________, 2023.
______________________________________
HON. ERIC SCHUMACHER , J.S.C.
4885-0811-2713, v. 1
5
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FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LANGE CAMPBELL, individually and on behalf of all other persons similarly situated, Index No.: 160513/2018 Plaintiffs, -against- NEW YORK BOILER, INC., RICHARD BERGER and DONALD BERGER, Defendants. ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENT, CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL, APPROVAL OF THE PROPOSED NOTICE OF CLASS ACTION SETTLEMENT AND THE CLAIM FORM AND RELEASE WHEREAS, this matter came before the Court on Plaintiffs’ unopposed Motion for Approval of Class Action Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs’ Counsel as Class Counsel, and Approval of Plaintiffs’ Proposed Notice of Settlement of Class Action Lawsuit and the Claim Form (“Motion for Approval”); and WHEREAS, the Court has reviewed the Affirmation of Lloyd Ambinder, Esq., (“Ambinder Affirmation”) with exhibits, and all other papers submitted in connection with the Motion for Preliminary Approval; IT IS HEREBY ORDERED AS FOLLOWS: I. Approval of the Settlement Agreement 1. The Court grants approval of the settlement memorialized in the Settlement Agreement and Release (“Settlement Agreement”), attached as Exhibit A to the Ambinder Affirmation dated February 15, 2023, and directs the Parties to carry out the settlement according to the terms of the Settlement Agreement. The Settlement Agreement is hereby incorporated into this Order. 1 FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023 2. The terms and conditions of the Settlement Agreement were the result of good faith, arms-length settlement negotiations between experienced counsel, with the assistance of experienced mediator Martin Scheinman, Esq., and the parties have met all necessary conditions for preliminary approval to resolve this lawsuit. The Court finds that the terms and conditions of the settlement memorialized in the Settlement Agreement are fair, adequate and reasonable as to all Class Members (defined below) when balanced against the probable outcome of further litigation relating to liability and damages issues and, therefore, meet the requirements for approval such that notice to the Class about the settlement is appropriate. II. Conditional Certification of the Class 3. The Court conditionally certifies the following class under CPLR §§ 901 and 902 for settlement purposes only: Each and every person who was an hourly-paid employee of NEW YORK BOILER, INC. (“NYB”) at any time during the period November 13, 2012 through [APPROVAL ORDER DATE] who performed boiler maintenance and repair work upon New York City Housing Authority (“NYCHA”) projects for any length of time pursuant to contracts entered into between NYCHA and NYB (the “Class”). The defined class shall not include any clerical, administrative, professional, or supervisory employees. Collectively, all Class Members are referred to as the “Class” or “Settlement Class”. 4. CPLR § 901 (a) (1) is satisfied because the class of approximately 175 individuals is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable. 5. CPLR § 901 (a) (2) is satisfied because there are questions of law or fact common to the class which predominate over any questions affecting only individual members. 6. CPLR § 901 (a) (3) is satisfied because the claims of the representative party is typical of the claims or defenses of the class. 2 FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023 7. CPLR § 901 (a) (4) is satisfied because the representative parties will fairly and adequately protect the interests of the class. 8. CPLR § 901 (a) (5) is satisfied because in this wage and hour action a class action is superior to other available methods for the fair and efficient adjudication of the controversy. III. Appointment of Plaintiffs’ Counsel as Class Counsel 9. The Court appoints Plaintiffs’ Counsel, Virginia & Ambinder, LLP as Class Counsel because the firm’s experience and credentials satisfy all of the requirements of CPLR § 901 (a) (4). 10. In particular, Virginia & Ambinder, LLP, did substantial work in identifying, investigating, and preliminarily settling Named Plaintiff and Class Members’ claims. Additionally, Virginia & Ambinder, LLP has extensive experience litigating and settling wage and hour class and collective action cases of this type. IV. Notice and Claim Form 11. The Court approves the form of the Notice of Settlement of Class Action Lawsuit (“Notice”) and Claim Form attached as Exhibits B and C to the Ambinder Affirmation, respectively, and directs their publication to Class Members in accordance with the terms of the Settlement Agreement and this Order. 12. The contents of the Notice and Claim Form fully comply with due process and CPLR § 908. 13. The Notice is found to be the best practicable means of providing adequate notice under the circumstances and shall constitute due and sufficient notice of the proposed settlement and the opportunity for a fairness hearing to all persons affected by the settlement in full compliance with the notice requirements of CPLR §§ 904 and 908. 3 FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023 V. Class Action Settlement Procedure 21. For purposes of this Order, all terms not otherwise defined have the same meanings set forth in the Settlement Agreement. 22. The following summarizes the dates that shall govern the schedule in this action: Within ten (10) days of the Class Counsel shall file the unopposed Motion for signing of this Agreement. Approval by Order to Show Cause. Within ten (10) days after the Parties shall engage the Settlement Claims signing of this Agreement. Administrator. Within thirty five (35) days of Defendants will provide the Settlement Claims the signing of the Approval Administrator with the Class Member List as set Order by the Court. forth in this Agreement. Within thirty (30) days after Mailing of Notice of Class Action Settlement and receipt of the Class Member Claim Form by Claims Administrator. Mailing List. Sixty (60) days after date of Last day for Class Members to submit written first mailing of Class Notice. objections to the Settlement (“Bar Date”). Sixty (60) days after date of Last day for Class Members to file Request for first mailing of Class Notice. Exclusions from the Settlement (“Bar Date”). Sixty (60) days after date of Last day for Class Members to submit a Valid first mailing of Class Notice. Claim Form (“Bar Date”). Seventy-five (75) days after Late Claim Bar Date: Unless otherwise agreed to date of first mailing of Class by the parties or directed by the Court, the last day Notice. for Class Members who failed to file the Claim Form by the Bar Date due to such factors as change of address, military service, hospitalization, or other extraordinary circumstances. Fifteen (15) days after Bar Claims Administrator shall certify jointly to Class Date. Counsel and Defense Counsel the following: (a) a list of all Objectors with a copy of objection; (b) a list of all opt-outs with a copy of opt-out form; (c) a list of all Class Members who timely submitted 4 FILED: NEW YORK COUNTY CLERK 03/13/2023 03:03 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/13/2023 Claim Forms during the Claim Period and qualify as Authorized Claimants, and (d) a list of all Class Members who submitted late or otherwise defective Claim Forms. No later than five (5) days Class Counsel shall file any objections with the before Fairness Hearing days Court, along with an affidavit from the Settlement after Bar Date. Claims Administrator and an affirmation from Class Counsel summarizing the notice and claim process, as well as the final settlement allocation to be deposited into the Qualified Settlement Fund. Class Counsel’s affirmation shall include a proposed Final Order. Fairness Hearing held -- No DATE: ________________________, 2023 earlier than One Hundred TIME: ________________________. m Twenty 120 days after Approval Order Signed. LOCATION: ___________________________ _______________________________________ Thirty-one (31) days after Effective Date. service of Notice of Entry of the signed Final Order approving this Agreement, and not before June 30, 2023. No later than fifteen (15) days Defendants shall fund the Qualified Settlement after the Effective Date. Fund by wire transfer in an amount equal to the sum of: (1) Class Counsel’s approved attorneys’ fees, costs, and expenses, (2) the Settlement Claims Administrator’s approved fees and costs, (3) the amount of the approved Service Award, (4) the Reserve Amount, and (5) the Net Settlement Amount (i.e., the sum of the amounts payable to Authorized Claimants who submitted Claim Forms on or before the Bar Date). IT IS SO ORDERED THIS _____ DAY OF _____________________, 2023. ______________________________________ HON. ERIC SCHUMACHER , J.S.C. 4885-0811-2713, v. 1 5