Preview
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-----------------------------------------------------------------------X
JOSE ENRIQUEZ, on behalf of himself, individually,
and all other persons similarly situated,
Index No.: 606033/2023
Plaintiff,
-against- Return Date:
January 4, 2024 at 9:30 a.m.
LOU TAGE INC. d/b/a ROBKE’S COUNTRY INN,
LOUIS SELVAGGIO and LOUIS SELVAGGIO, JR.,
Hon. Christopher G. Quinn
Defendants.
-----------------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
DAVID D. BARNHORN, ESQ.
PETER A. ROMERO, ESQ.
ROMERO LAW GROUP PLLC
Attorneys for Plaintiff
490 Wheeler Road, Suite 277
Hauppauge, New York 11788
Tel.: (631) 257-5588
Email: dbarnhorn@romerolawny.com
Email: promero@romerolawny.com
1 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
PRELIMINARY STATEMENT
Subject to this Court’s approval, Plaintiff Jose Enriquez and Defendants Lou Tage Inc.
d/b/a Robke’s Country Inn, Louis Selvaggio and Louis Selvaggio, Jr. have settled this class
action for $350,000. The proposed settlement resolves Plaintiff’s class claims under the New
York Labor Law (“NYLL”) and New York common law on a class-wide basis, and associated
attorneys’ fees and litigation expenses and costs, and satisfies all criteria for final settlement
approval under New York State law. On August 4, 2023, the Court entered an order granting
preliminary approval of the class that, inter alia, found that the proposed settlement should be
preliminarily approved, certified the proposed class, authorized Notice to the Class, and
appointed the Romero Law Group PLLC (formerly known as the Law Office of Peter A. Romero
PLLC) as Class Counsel. Exhibit B. The certified Class is comprised of the named Plaintiff and
all individuals who have been employed by Defendants as a non-managerial hourly paid, tipped
employee, including but not limited to any server, busser, runner or bar employee, and/or any
other employee in a similarly situated position, at any time from May 27, 2015 through February
1, 2023 (the “Class” or “Class Members”). Exhibit A at ¶¶ 1.3, 1.27; Exhibit B. The Class
includes 107 Class Members. Declaration of Amenda Myette for Rust Consulting, Inc.
(hereinafter “Rust Decl.”) at ¶¶ 8, 10.
In this matter, Plaintiff is an individual who was employed as a non-managerial server
paid an hourly tipped rate, in the State of New York, during a portion of the class period
covering May 27, 2015 through February 1, 2023. Exhibits A and D. As relevant herein,
Plaintiff asserts that Defendants violated the NYLL and New York common law by allegedly:
(1) improperly paying Plaintiff and the Class Members at a reduced tipped, hourly rate of pay for
their regular and overtime hours worked; (2) unlawfully retaining tips and gratuities earned by
Plaintiff and the Class Members; (3) failing to pay Plaintiff and the Class Members spread of
1
2 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
hours compensation; and (4) failure to timely pay wages earned by Plaintiff and Class Members.
See Exhibit D. Defendants deny the allegations.
The proposed class settlement of these claims has been well received by the Class and
Plaintiff, without opposition from and with consent from Defendants, now requests that the
Court enter an Order: (1) granting final approval of the parties’ Class Settlement Agreement and
Release; (2) approving the settlement as fair, reasonable, adequate, and binding on all Class
Members to the extent provided for the in the Settlement Agreement; (3) authorizing and
directing the distribution of settlement checks to all Class Members that timely submitted claim
forms representing their share of the Settlement Fund; (4) approving the Administrator’s Fees in
the amount of $12,979.00 from the Gross Settlement Fund; (5) approving attorneys’ fees of one-
third of the maximum settlement fund to Class Counsel in the amount of $116,666.66; (6)
approving reimbursement of litigation expenses to Class Counsel in the amount of $2,288.87
from the Gross Settlement Fund; (7) ordering the release of all claims specified in the Settlement
Agreement for Plaintiff, all Authorized Claimants, and all Class Members, (8) ordering the
dismissal of this action with prejudice; and (9) granting such other and further relief as the Court
deems just and proper.
PROCEDURAL HISTORY
The parties refer the Court to the Affirmation of David D. Barnhorn, Esq., in Support of
Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement for a discussion of
the procedural history of this matter.
THE PROPOSED SETTLEMENT
A. The Settlement Class
The Class, as defined by the settlement agreement and the Court’s Preliminary Approval
Order, is comprised of the named Plaintiff and all individuals who have been employed by
2
3 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Defendants as a non-managerial hourly paid, tipped employee, including but not limited to any
server, busser, runner or bar employee, and/or any other employee in a similarly situated
position, at any time from May 27, 2015 through February 1, 2023 (the “Class” or “Class
Members”). Exhibit A at ¶¶ 1.3, 1.27; Exhibit B. The Class includes 107 Class Members. Rust
Decl. at ¶¶ 8, 10.
B. Terms of the Parties’ Proposed Settlement
The parties refer the Court to the Affirmation of David D. Barnhorn, Esq., in Support of
Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement for a detailed
discussion of the terms of the parties’ proposed settlement as contained in their Class Settlement
Agreement and Release.
THE CLAIMS ADMINISTRATION PROCESS
The Court approved and appointed Rust Consulting, Inc. (“Rust”) as the Settlement
Claims Administrator. Exhibit B. On August 10, 2023, Defendants’ counsel provided Rust with
a list (hereinafter the “Class List”) containing the names, employment information, last known
mailing address, and social security numbers for 107 Class Members. See Rust Decl. at ¶ 8.
On August 24, 2023, Notice Packets were mailed via First Class Mail to the 107 Class
Members contained in the Class List, who were notified of their deadline to submit a claim form
to participate, opt-out of or object to the settlement.1 Id. at ¶¶ 5-10; Exhibit A to Rust Decl. If a
Notice Packet was returned without a forwarding address, Rust performed an address search (i.e.
skip trace) on all of these addresses. Rust Decl. at ¶ 11. Ultimately, 12 Notice Packets were
returned as undeliverable and without a forwarding address. Id. Through its advanced address
searches, Rust was able to locate updated addresses for 7 of the 12 affected Class Members and
1
The named Plaintiff is deemed an Authorized Claimant under the terms of the settlement agreement and therefore
mailing of the notice to him was not required. Exhibit A to Barnhorn Aff. at ¶ 1.3.
3
4 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Rust promptly re-mailed Notice Packets to these 7 Class Members at those updated addresses. Id.
Of these 7 re-mailed Notices, one of the re-mailed notices was returned as undeliverable from
these updated addresses. Id. Notices were also re-mailed to five Class Members at their request.
Id. at ¶ 13. Ultimately, 101 of the 107 Class Members received a Notice Packet from the initial
mailing or from remailing. Id.
Each Notice Packet contained both an English and a Spanish version of the Class Notice,
Claim Form, and IRS Form W-9. Id. at ¶ 5; Exhibit A to Rust Decl. The Class Notice advised
Class Members of their right to: (1) participate in the Settlement by submitting a Claim Form; (2)
opt-out from the Settlement; or (3) object to the Settlement, and the implications of each such
action. Id. at ¶ 5; Exhibit A to Rust Decl. The Class Notice advised Class Members of applicable
deadlines and other events including the date and location of the Fairness Hearing, and how
Class Members could obtain additional information. Exhibit A to Rust Decl. As a result, the
Settlement Class Members were well-informed of the terms of the settlement as the Court-
approved Notice detailed all material and necessary information, including: information
regarding the nature of the lawsuit; why there is a settlement and what the class is; a summary of
the substance of the settlement; the procedure and time period for objecting to the settlement,
excluding oneself from the settlement, or participating in the settlement; the scope of the
releases; and information to contact Rust with any questions about the settlement. Id. The Notice
also discussed the maximum amount of attorneys’ fees that could be requested and that an
additional sum for litigation expenses would also be requested from the Gross Settlement Fund.
Id. Finally, the Notice contained instructions and a deadline for Class Members who wished to
object to the Settlement Agreement and/or appear at the Fairness Hearing and when and where
the Fairness Hearing would be held. Id.
4
5 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Rust received a total of 10 valid claims, consisting of 9 timely claims from Class
Members and the claim of the named Plaintiff. Id. at ¶¶ 8, 15-16; Exhibit A to Barnhorn Aff. at ¶
1.3; see Barnhorn Aff. at ¶¶ 34-42. Thus, 9.35 percent of the Class submitted valid claims. Rust
Decl. at ¶¶ 8, 15-16; Exhibit A to Barnhorn Aff. at ¶ 1.3; see Barnhorn Aff. at ¶¶ 34-42. The
portion allocated to each Authorized Claimant will be based on the number of weeks worked
during the class period. Exhibit A at ¶ 3.4.
Between the mailing of the Notice and the close of the claim-submission period, Rust
received only 3 requests for exclusion from the Settlement and no objections to the Settlement.
Id. at ¶¶ 14-16; see Barnhorn Aff. at ¶¶ 34-42. Thus, 104 of the Class Members have elected to
participate, yielding a participation rate of 97.2% of the Class. Rust Decl. at ¶¶ 14-16; see
Barnhorn Aff. at ¶¶ 34-42.
The fees and costs allotted for the Claims Administrator amount to $12,979.00 for Rust’s
work already performed as well as future work required to finalize the claims administration
process. Rust Decl. at ¶ 17.
ARGUMENT
I. THE PROPOSED SETTLEMENT SHOULD BE APPROVED
CPLR 908 requires judicial approval for any compromise of claims brought on a class
basis. Fiala v. Met. Life Ins. Co., 899 N.Y.S.2d 531 (Sup Ct. N.Y. Cnty. 2010). In New York,
class action settlements are strongly favored. In re New York County Data Entry Worker Prod.
Liab. Litig., 616 N.Y.S.2d 424, 427 (Sup. Ct. N.Y. Cnty. 1994) (recognizing that policy
considerations favored class-wide settlements). In determining whether to approve a class action
settlement, courts examine “the fairness of the settlement, its adequacy, its reasonableness and
the best interests of the class members.” Fiala, 899 N.Y.S.2d 537 (citing Klein v. Robert’s Am.
5
6 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Gourmet Food, Inc., 808 N.Y.S.2d 766 (2d Dep’t 2006); and Rosenfeld v. Bear Stearns & Co.,
655 N.Y.S.2d 473 (1st Dep’t 1997)). In the final approval determination, the Court considers the
monetary reasonableness of the settlement. Klein, 28 A.D.3d at 73; In re Colt Indus. Shareholder
Litigation v. Colt Indus., Inc., 155 A.D.2d 154 (1st Dep’t 1990). Courts also consider the
response of the class to the settlement. Fiala, 899 N.Y.S.2d at 538.
In this case, the extent of support from the Class Members, the judgment of experienced
counsel, and the presence of bargaining in good faith with the assistance of an experienced
mediator militates strongly in favor of approval. The parties’ settlement is the product of
extensive arms’ length negotiations between two law firms with experience in handling complex
wage and hour lawsuits.
A. The Monetary Amount of the Settlement is Fair and Reasonable Considering
the Potential Risks of Litigation
As explained in the Motion for Preliminary Approval, the parties exchanged relevant
documentary evidence and information necessary to assess the amount of damages owed to the
Class Members. The amount of damages for frequency of payment provisions under the NYLL
owed to each Class Member varies depending on each individual’s length of employment.
However, based on an analysis of the provided records, the best-case assessment of class
damages for violations of the NYLL amount to approximately $577,322.28. Notably, whether a
settlement amount is reasonable “does not involve the use of a ‘mathematical equation yielding a
particularized sum.’” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005)
(quoting In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 178 (S.D.N.Y.
2000), aff’d sub nom. D'Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001)). “Instead, ‘there
is a range of reasonableness with respect to a settlement – a range which recognizes the
uncertainties of law and fact in any particular case and the concomitant risks and costs
6
7 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
necessarily inherent in taking any litigation to completion.’” Id. (quoting Newman v. Stein, 464
F.2d 689, 693 (2d Cir. 1972)). “[T]here is no reason, at least in theory, why a satisfactory
settlement could not amount to a hundredth or even a thousandth part of a single percent of the
potential recovery.” City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 n.2 (2d Cir. 1974). “It
is well-settled law that a cash settlement amounting to only a fraction of the potential recovery
will not per se render the settlement inadequate or unfair.” Officers for Justice v. Civil Serv.
Comm’n, 688 F.2d 615, 628 (9th Cir. 1982) (emphasis added); see also Cagan v. Anchor Sav.
Bank FSB, 1990 WL 73423, at *12-13 (E.D.N.Y. May 22, 1990) (approving $2.3 million class
settlement where the “best possible recovery would be approximately $121 million”). The gross
settlement amount of $350,000 – amounting to approximately 60.62% of the Class’s estimated,
best-case assessment of damages – falls comfortably within the range of reasonable recovery,
and in fact exceeds the typical range of recovery, considering the delay and risks associated with
continued litigation. See Jackson v. Ferguson Enterprises, LLC, Index No. 607329/2023 (Sup.
Ct. Nassau Cnty. Oct. 19, 2023) (See Dkt. Nos. 16, 23, 26) (approving settlement of $3.3 million
that amounted to 14.58% of total damages in NYLL § 191 class settlement); Williams v. Sunrise
Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023)
(See Dkt. Nos. 25, 35) (approving settlement of $3.9 million that amounted to 6% of total
damages in NYLL § 191 class settlement); Galeas v. Amneal Pharmaceuticals of New York,
LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. Nos. 14, 25)
(approving settlement of $1.2 million that amounted to 8.37% of total damages in NYLL § 191
class settlement); Sorin v. Peloton Interactive, Inc., Index No. 611560/2021 (Sup. Ct. Nassau
Cnty. May 13, 2022) (See Dkt. Nos. 24, 35) (approving settlement of $845,000 that amounted to
6.93% of total damages in NYLL § 191 class settlement); Martinez v. DCC La Scala Ltd., Index
7
8 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
No.: 602236/2017 (Sup. Ct. Suffolk Cnty. Jan. 31, 2022) (See Dkt. Nos. 112, 135) (approving
settlement of $220,000 that amounted to 64.7% of total damages in NYLL class settlement);
Diaz v. Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct.
Suffolk Cnty. Nov. 23, 2021) (See Dkt. Nos. 15, 24) (approving settlement of $710,000 that
amounted to 44.9% of total damages in NYLL class settlement); Reyes v. Pisticci Restaurant
Corp., Docket No. 17-cv-2869 (JGK) (S.D.N.Y. Sept. 9, 2019) (See Dkt. Nos. 110-111)
(approving settlement of $550,000 that amounted to 11.57% of total damages in NYLL class
settlement).
The class settlement amount that the parties compromised upon is favorable in light of
the costs and risks of continued litigation. See Barnhorn Aff. at ¶¶ 20-28. Barring settlement, the
parties expected to engage in full discovery, including several depositions, extensive motion
practice, including for class certification, multiple dispositive motions, and opposition to such
motions, and the parties could potentially face a subsequent trial and likely appeals. To establish
damages for the Class, a complicated and lengthy trial would be necessary and would require
extensive testimony by Defendants’ representatives, Plaintiff, and other potential Class
Members, and potentially expert witnesses. Preparing and presenting testimonial and
documentary evidence regarding the disputed issues at trial would consume significant amounts
of time and resources of the parties and would require substantial judicial resources. Any
judgment or interim certification or decertification order could be appealed, thereby extending
the duration of the litigation. Even if Plaintiff prevailed at trial and on an appeal, it could
nevertheless have taken years for Class Members to recover a monetary judgment, assuming that
Defendants paid voluntarily or that Plaintiff were successful in his collection efforts.
8
9 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Notably, if this case were to proceed to trial, Class Counsel recognizes that the apparent
strength of Plaintiff’s causes of action are no guarantee against a complete or partial defense
verdict. Indeed, the parties both face a number of hotly-contested factual and legal disputes that
make predicting the outcome of continued litigation a challenge. Specifically, Defendants paid
Plaintiff and the class members at a reduced hourly, tipped rate of pay for their regular and
overtime rates of pay under the NYLL. In order to pay employees at a reduced tipped rate of
pay, Defendants must satisfy certain requirements of the NYLL. Here, Plaintiff’s and the Class
Members’ claims primarily arise from Defendants’ alleged failure to provide a compliant,
written tip credit notice to them that strictly complies with the NYLL and that must be provided
before paying them at a reduced tipped rate of pay, which Plaintiff contends is a mandatory
prerequisite to paying employees at a tipped rate of pay. Defendants dispute that they failed to
provide a tip credit notice to the Plaintiff and the Class Members. Moreover, Defendants
contend that a written tip credit notice is not required to strictly comply with the NYLL’s
requirements to entitle them to pay at a tipped rate of pay. Instead, Defendants rely on case law
that they contend permits a court to excuse, in certain circumstances, an employer’s failure to
provide a tip credit notice that strictly complies with the NYLL’s requirements. Plaintiff also
asserts that Defendants failed to comply with other prerequisites that are required to entitle an
employer to pay employees at a reduced hourly tipped rate of pay, including, but not limited to,
by allegedly: (1) permitting a non-exempt manager to participate in and retain tips and gratuities
from Defendants’ tip pool; and (2) inaccurately recording the amount of tips and gratuities
received by Plaintiff and the Class Members. Defendants vehemently deny these factual
allegations. The resolution of these disputes is likely to determine whether Defendants are liable
for nearly all of the causes of action asserted in this case. Therefore, the outcome of the
9
10 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
resolution of these disputes, which will turn primarily on the credibility of the parties and the
Court’s interpretation of conflicting case law, are inherently risky and difficult to predict.
Additionally, Defendants contend that Plaintiff and the Class Members are not entitled to spread
of hours compensation and that, even if Plaintiff and the Class Members are successful on this
cause of action, that they are entitled to lesser damages than alleged.
Because Plaintiff alleges that Defendants have failed to pay certain wages and failed to
remit certain tips and gratuities owed by them, Plaintiff has also asserted a cause of action under
NYLL § 191 for failure to timely pay Plaintiff and the Class Members their wages earned.
Under NYLL § 191, individuals classified as manual workers must be paid their wages weekly
and not later than seven days of when their wages were earned. Were this matter to proceed in
litigation, Defendants are likely to assert certain legal defenses, including an argument that there
is no private right of action for violations of NYLL § 191. The parties staunchly disagree as to
whether a private right of action exists, which Plaintiff contends exists pursuant to Appellate
Division case law and subsequent decisions by other federal and New York courts. Defendants
would also have challenged whether the Class Members, or possibly particular categories of
Class Members, qualify as manual workers under the NYLL. Furthermore, the parties also
dispute the proper remedy for violations of NYLL § 191, if Plaintiff were successful at trial. If
successful, Defendants’ legal arguments could defeat the NYLL § 191 class claim in its entirety
or dramatically reduce the amount of damages owed to Plaintiff and the Class Members.
While Plaintiff believes that he could prove his factual allegations and that his legal
contentions are correct, Plaintiff recognizes that Defendants’ defenses, if successful, could
prevent Plaintiff and the Class Members from obtaining a recovery or substantially limit the
10
11 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
amount of that recovery at trial. Thus, Plaintiff and the Class Members face substantial risk with
respect to establishing both liability and the amount of damages owed to them.
Moreover, Defendants would also likely challenge whether certain categories of
employees covered by the Class are sufficiently similarly-situated to constitute Class Members.
If these various arguments (which Plaintiff disputes) were successful, Defendants’ arguments
could possibly limit the number the Class Members covered by the lawsuit or defeat the class
causes of action in their entirety. Given these risks, 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, especially in light of the aforementioned risks faced by Plaintiff and the
Class Members.
Additionally, Defendants asserted, and Plaintiff verified to the extent possible, that
Defendants could not withstand a larger judgment or settlement. Indeed, Defendants, as a
restaurant, are part of an industry that has suffered from a substantial downturn as a result of the
Covid-19 pandemic. As a result, Plaintiff and the Class Members could succeed at trial, yet be
unable to collect a substantial portion or possibly any portion of a judgment due to Defendants’
financial circumstances. Thus, if approved, Plaintiff and the Class Members are assured a
recovery through the proposed settlement, secured by a confession of judgment, that will result
in an expeditious payment of the settlement sum.
As such, the parties’ settlement appropriately reflects both the strengths and substantial
risks that Plaintiff and the Class Members face with respect to establishing both liability and the
amount of damages owed to them and Defendants’ strengths and risks regarding establishing
their defenses. Quite simply, even if a judgment were obtained against Defendants at trial, the
relief might be no greater, and indeed might be far less, than that provided by the proposed
11
12 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
settlement. Therefore, the proposed class settlement permits a greater recovery than might be
achieved at trial or as part of any dispositive motions.
In sum, this settlement makes a guaranteed measure of monetary relief available to Class
Members in a prompt and efficient manner without any of the uncertainties or risks of continued
litigation.
B. The Proposed Settlement has been Well-Received by the Class
The reaction of the class to the settlement is perhaps the most significant factor to be
weighed in considering its adequacy. Chavarria v. New York Airport Serv., LLC, 875 F. Supp. 2d
164, 173 (E.D.N.Y. 2012). A positive reaction of the class to the proposed settlement favors its
approval by the Court. Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d 650, 663 (S.D.N.Y.
2015). 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. Wright v. Stern, 553 F.
Supp. 2d 337, 345 (S.D.N.Y. 2008) (“The fact that the vast majority of class members neither
objected nor opted out is a strong indication that the proposed settlement is fair, reasonable, and
adequate.”).
In this case, the overall reaction of the Class to the proposed settlement has been positive.
The Notice was successfully mailed to 101 of the 107 Class Members. Of those, Rust received
10 valid claims from the Class Members, consisting of 9 timely claims for the Class and the
claim of the named Plaintiff, representing 9.35 percent of the Class. Barnhorn Aff. at ¶¶ 34, 38,
41; Rust Decl. at ¶¶ 8, 15-16; Exhibit A at ¶ 1.3. Additionally, none of the Class Members
objected to the settlement. Id. at ¶¶ 35, 40; Rust Decl. at ¶ 16. Rust received only 3 requests for
exclusion from the Class. Barnhorn Aff. at ¶¶ 36, 39; Rust Decl. at ¶ 14.
12
13 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Quite simply, it is clear that the response from the Class has been extremely positive.
Barnhorn Aff. at ¶¶ 34-42. Indeed, 104 Class Members – representing 97.2 percent of the
original Class – elected to remain in the settlement. Id. Of these, none have objected to any term
of the proposed class settlement. Id. Notably, the percentage of the Class Members that elected
to submit claims – 9.35 percent – strongly reflects that the Class is satisfied with the parties’
proposed class settlement and is within the typical range for similar class action settlements. Id.
Thus, Class Members have shown a positive reaction to this settlement and are awaiting
the finalization of this matter. The favorable reception by the Class Members constitutes strong
evidence of the fairness and adequacy of the proposed settlement and supports judicial approval.
Rosenfeld, 655 N.Y.S.2d at 473.
C. The Judgment of Experienced Counsel Favors Approval of the Settlement
The settlement should be approved because the parties were represented by counsel who
are competent and experienced in wage and hour litigation. In re Colt Indus. S’holder Lit., 155
A.D.2d 154, 160 (1st Dep’t 1990); Gordon v. Verizon Commc’ns, Inc., 148 A.D.3d 146, 157 (1st
Dep’t 2017). Class Counsel has substantial experience prosecuting and settling wage and hour
lawsuits, including class action lawsuits, is well-versed in wage and hour class action law, and is
well-qualified to represent the interests of the class. Barnhorn Aff. at ¶¶ 43-51. Indeed, Class
Counsel practices almost exclusively in the area of employment law and focuses primarily on
wage and hour litigation, including numerous cases such as the instant lawsuit. Id. Moreover,
federal and New York state courts have repeatedly found Class Counsel to be qualified class
counsel in many other wage and hour class actions. Id.; see Krebs v . The Canyon Club, 22
Misc.3d 1125(A), at *20 (Sup. Ct. Westchester Cnty. Jan. 2, 2009) (appointing class counsel on
the basis of attorney’s affirmation containing a description of his experience litigating class
13
14 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
actions). The Firm’s experience in wage and hour litigation, including class action wage and
hour lawsuits, combined with Class Counsel’s judgment that the settlement is fair and reasonable
when compared to the risks of litigation, weighs in favor of approval of the parties’ settlement.
D. The Presence of Good Faith Bargaining Favors Approval of the Settlement
Where, as here, there is no evidence to the contrary, “negotiations are presumed to have
been conducted at arm’s length and in good faith.” Gordon, 148 A.D.3d at 157. Prior to settling
this case, the parties exchanged and reviewed relevant documents and information before
participating in mediation. The parties only reached a settlement after engaging in contentious
settlement negotiations and with the extensive assistance of mediator Giulio Zanolla, Esq., an
experienced and highly reputable mediator that regularly handles employment and wage and
hour disputes, including high-stakes class actions. Thereafter, the Parties engaged in spirited
negotiations regarding the terms of the Parties’ formal settlement agreement. Notably, the
presence of a mediator during the settlement process “provides assurance that the settlement was
not the product of collusion.” Bilbao v. LCS Enters. Inc., 2018 WL 1399199, at *2 (S.D.N.Y.
Mar. 19, 2018); see also Hernandez v. Anjost Corp., 2013 WL 4145952, at *2 (S.D.N.Y. Aug.
14, 2013) (“The assistance of an experienced mediator . . . reinforces that the Settlement
Agreement is non-collusive."); Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 618-
619 (S.D.N.Y. 2012) (citing In re Giant Interactive Grp., Inc. Sec. Litig., 279 F.R.D. 151, 159-
160 (S.D.N.Y. 2011)) (explaining parties entitled to a presumption of fairness where mediator
facilitated arms’-length settlement). Thus, it is clear that the settlement was reached through
contested, protracted, and contentious arms’-length negotiations.
14
15 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
E. Nature of the Issues of Law and Fact
Litigating this case to a conclusion would be complex, lengthy and expensive.
Defendants were prepared to defend the case vigorously. As discussed above, continued
litigation would have required substantial discovery and motion practice, including dispositive
motions, a class certification motion, and likely an appeal. Due to the nature of Defendants’
defenses, Plaintiff faced substantial obstacles in maintaining the current class action through trial
and establishing liability. Defendants would have likely appealed any order granting class
certification or for summary judgment with respect to liability and/or damages. It would
undoubtedly be years before the issues were resolved. Considering the difficult and
unpredictable litigation that would ensue should this settlement not be approved, the risk that the
current case law may change for the worse for the Class Members during that time, and the
substantial monetary relief made available to Class Members in a prompt and efficient manner
without any of the uncertainties or risks of continued litigation, the settlement should be
approved.
II. THE CLAIMS ADMINSTRATOR’S FEES AND COSTS SHOULD BE
APPROVED
Rust Consulting Inc., a third-party settlement claims administrator, was retained to
administer the settlement. Rust Consulting Inc.’s fee for their services amounts to $12,979.00.
Rust Decl. at ¶ 17. The Settlement Claims Administrator’s fee is reasonable given the extensive
work involved in administering this settlement. See Bijoux v. Amerigroup New York, LLC, 2016
WL 2839797, at *2 (E.D.N.Y. May 12, 2016) (approving claims administrator’s fees of
$50,000); Wisdom v. Walgreen Co., Index No. 614014/2021 (Sup. Ct. Nassau Cnty. Sept. 14,
2022) (See Dkt. Nos. 15, 19) (approving claims administrator's fees of $90,000); Kingston v. Buy
Buy Baby, Inc., Index No. 603184/2021 (Sup. Ct. Nassau Cnty. Apr. 8, 2022) (See Dkt. No. 20)
15
16 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
(approving claims administrator’s fees of $60,000); Williams v. Sunrise Senior Living
Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No.
35) (approving claims administrator's fees of $30,858); Galeas v. Amneal Pharmaceuticals of
New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No. 25 )
(approving claims administrator's fees of $22,872); Diaz v. Paramount Beauty Distributing
Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Nov. 23, 2021) (See Dkt. No.
24) (approving claims administrator's fees of $30,000); Medina v. Neri’s Bakery Products, Inc.,
Index. No. 22916/2019 (Sup. Ct. Bronx Cnty. Feb. 26, 2020) (See Dkt. No. 25) (approving
claims administrator’s fees of $30,000); Canales v. Manhasset Restaurant LLC, Index No.
603053/2017 (Sup. Ct. Nassau Cnty. Oct. 10, 2018) (See Dkt. No. 35) (approving claims
administrator's fees of $50,000). Accordingly, Plaintiff respectfully requests that the Court
approve payment of the remainder of the Settlement Claims Administrator’s fees and costs.
III. CLASS COUNSEL’S ATTORNEYS’ FEES SHOULD BE APPROVED
The Settlement Agreement provides for attorneys’ fees in an amount equal to one-third of
the Settlement Amount (i.e. $116,666.66), plus litigation costs discussed below. See Exhibit A at
¶ 3.3. The Class Notice approved by the Court and sent to Class Members indicated that the
Settlement Agreement provides for attorneys’ fees of one-third of the Settlement Amount, as
well as an additional amount for litigation expenses. Exhibit A to Rust Decl. No Class Member
has objected to the payment of these attorneys’ fees. Rust Dec. at ¶ 16. The amount of fees
requested is fair and reasonable using the percentage of recovery of one-third of the settlement
sum. Bijoux, 2016 WL 2839797, at *1 (approving $550,000 in attorneys’ fees, which is one-third
of the total settlement amount, plus $14,270.00 in costs and expenses); Mendez v. MCSS Rest.
Corp., 2022 WL 3704591, at *9 (E.D.N.Y. Aug. 26, 2022) (quoting Kochilas v. Nat’l Merch.
16
17 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Servs., 2015 WL 5821631, at *9, (E.D.N.Y. Oct. 2, 2015)) (holding “Class Counsel’s fee request
of one-third (33.33%) of the Settlement Fund is ‘reasonable and consistent with the norms of
class litigation in this circuit,’ including wage and hour cases, and ‘should be awarded on the
basis of the total funds made available’” and collecting cases for these propositions); Toure v.
Amerigroup Corp., 2012 WL 3240461, at *5 (E.D.N.Y. Aug. 6, 2012) (approving attorneys’ fees
of $1,483,333, or one-third of the settlement); Cucuzza v. National Debt Relief, LLC, Index No.
601631/2021 (Sup. Ct. Nassau Cnty. Apr. 20, 2022) (See Dkt. No. 21); Cortes v. Mexican
Hospitality Operator LLC, Index No. 601406/2021 (Sup. Ct. Nassau Cnty. Feb. 28, 2022) (See
Dkt. No. 18); Gabriel v. Homyn Enterprises Corp., Index No. 504595/2021 (Sup. Ct. Kings.
Cnty. Nov. 23, 2021) (See Dkt. No. 15); Coba v. Wagamama USA, LLC, Index No. 614988/2020
(Sup. Ct. Nassau Cnty. Nov. 3, 2021) (See Dkt. No. 17); Flowers v. FSNY Restaurant Associates,
LLC, Index No. 600976/2021 (Sup. Ct. Nassau Cnty. Oct. 21, 2021) (See Dkt. No. 19); Hyken v.
Greenwich BBQ, LLC, Index No. 608689/2020 (Sup. Ct. Nassau Cnty. Jun. 3, 2021) (See Dkt.
No. 19); Figueroa v. United American Security, LLC, Index No. 613892/2020 (Sup. Ct. Nassau
Cnty. May 24, 2021) (See Dkt. No. 21); Luna v. Zuma NYC, LLC, Index No. 509547/2020 (Sup.
Ct. Kings Cnty. May 10, 2021) (See Dkt. No. 40); Lemma v. 103W77 Partners LLC, Index No.
513125/2019 (Sup. Ct. Kings Cnty. Mar. 31, 2021) (See Dkt. No. 24); Guzman v. Del Frisco’s of
New York, LLC, Index No. 617666/2019 (Sup. Ct. Nassau Cnty. Mar. 18, 2021) (See Dkt. No.
61); Jackson v. Ferguson Enterprises, LLC, Index No. 607329/2023 (Sup. Ct. Nassau Cnty. Oct.
19, 2023) (See Dkt. Nos. 16, 23, 26); Williams v. Sunrise Senior Living Management, Inc., Index
No. 603289/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No. 35); Galeas v. Amneal
Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Mar. 1,
2023) (See Dkt. No. 25 ); Medina v. Neri’s Bakery Products, Inc., Index. No. 22916/2019 (Sup.
17
18 of 23
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023
Ct. Bronx Cnty. Feb. 26, 2020) (See Dkt. No. 25); Canales v. Manhasset Restaurant LLC, Index
No. 603053/2017 (Sup. Ct. Nassau Cnty. Oct. 10, 2018) (See Dkt. No. 35); Robinson v. Big City
Yonkers, Inc., Index No. 600159/2016 (Sup. Ct. Nassau Cnty. Feb. 16, 2018) (See Dkt. No. 291).
The fee that Class Counsel seeks – 33.33% of the settlement fund – is consistent with
those routinely awarded in class action settlements. See Wisdom v. Walgreen Co., Index No.
614014/2021 (Sup. Ct. Nassau Cnty. Sept. 14, 2022) (See Dkt. Nos. 15, 19) (awarding
$9,700,000 as attorneys’ fees in a class action settlement, which was one-third of the settlement
sum); Rodriguez v. Delta Air Lines, Inc., Index No. 602842/2021 (Sup. Ct. Nassau Cnty. July 26,
2022) (See Dkt. Nos. 17, 21) (awarding $1,916,666.67 as attorneys’ fees in a class action
settlement, which was one-third of the settlement sum, and an additional amount for litigation
costs); Kingston v. Buy Buy Baby, Inc., Index No. 603184/2021 (Sup. Ct. Nassau Cnty. Apr. 8,
2022) (See Dkt. No. 20) (awarding $1,100,000 as attorneys’ fees in a class action settlement,
which was one-third of the settlement sum); Puglisi v. TD Bank, N.A., 2015 WL 4608655, at *1
(E.D.N.Y. July 30, 2015) (approving $3,300,000.00 in attorneys’ fees equal to one-third of the
settlement fund); Clerrosier v. 7-Eleven, Inc., Index No. 614321/2021 (Sup. Ct. Nassau Cnty.
Feb. 13, 2023) (See Dkt. No. 21) (awarding $583,333.33 as attorneys’ fees in a claims made
class action settlement, which was one-third of the maximum settlement sum, and an additional
amount for litigation costs); Mendez, 2022 WL 3704591, at *9 (approving attorney’s fees of
$163,595.33, or one-third of the maximum settlement sum in claims made class settlement, and
an additional amount for litigation costs); Jackson v. Ferguson Enterprises, LLC, Index No.
607329/2023 (Sup. Ct. Nassau Cnty. Oct. 19, 2023) (See Dkt. Nos. 16, 23, 26) (approving
attorney’s fees of $1,100,000, which was one-third of the maximum settlement sum in claims
made class settlement, and an additional amount for litigation costs); Williams v. Sunrise Senior
18
Preview
FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------X JOSE ENRIQUEZ, on behalf of himself, individually, and all other persons similarly situated, Index No.: 606033/2023 Plaintiff, -against- Return Date: January 4, 2024 at 9:30 a.m. LOU TAGE INC. d/b/a ROBKE’S COUNTRY INN, LOUIS SELVAGGIO and LOUIS SELVAGGIO, JR., Hon. Christopher G. Quinn Defendants. -----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT DAVID D. BARNHORN, ESQ. PETER A. ROMERO, ESQ. ROMERO LAW GROUP PLLC Attorneys for Plaintiff 490 Wheeler Road, Suite 277 Hauppauge, New York 11788 Tel.: (631) 257-5588 Email: dbarnhorn@romerolawny.com Email: promero@romerolawny.com 1 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 PRELIMINARY STATEMENT Subject to this Court’s approval, Plaintiff Jose Enriquez and Defendants Lou Tage Inc. d/b/a Robke’s Country Inn, Louis Selvaggio and Louis Selvaggio, Jr. have settled this class action for $350,000. The proposed settlement resolves Plaintiff’s class claims under the New York Labor Law (“NYLL”) and New York common law on a class-wide basis, and associated attorneys’ fees and litigation expenses and costs, and satisfies all criteria for final settlement approval under New York State law. On August 4, 2023, the Court entered an order granting preliminary approval of the class that, inter alia, found that the proposed settlement should be preliminarily approved, certified the proposed class, authorized Notice to the Class, and appointed the Romero Law Group PLLC (formerly known as the Law Office of Peter A. Romero PLLC) as Class Counsel. Exhibit B. The certified Class is comprised of the named Plaintiff and all individuals who have been employed by Defendants as a non-managerial hourly paid, tipped employee, including but not limited to any server, busser, runner or bar employee, and/or any other employee in a similarly situated position, at any time from May 27, 2015 through February 1, 2023 (the “Class” or “Class Members”). Exhibit A at ¶¶ 1.3, 1.27; Exhibit B. The Class includes 107 Class Members. Declaration of Amenda Myette for Rust Consulting, Inc. (hereinafter “Rust Decl.”) at ¶¶ 8, 10. In this matter, Plaintiff is an individual who was employed as a non-managerial server paid an hourly tipped rate, in the State of New York, during a portion of the class period covering May 27, 2015 through February 1, 2023. Exhibits A and D. As relevant herein, Plaintiff asserts that Defendants violated the NYLL and New York common law by allegedly: (1) improperly paying Plaintiff and the Class Members at a reduced tipped, hourly rate of pay for their regular and overtime hours worked; (2) unlawfully retaining tips and gratuities earned by Plaintiff and the Class Members; (3) failing to pay Plaintiff and the Class Members spread of 1 2 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 hours compensation; and (4) failure to timely pay wages earned by Plaintiff and Class Members. See Exhibit D. Defendants deny the allegations. The proposed class settlement of these claims has been well received by the Class and Plaintiff, without opposition from and with consent from Defendants, now requests that the Court enter an Order: (1) granting final approval of the parties’ Class Settlement Agreement and Release; (2) approving the settlement as fair, reasonable, adequate, and binding on all Class Members to the extent provided for the in the Settlement Agreement; (3) authorizing and directing the distribution of settlement checks to all Class Members that timely submitted claim forms representing their share of the Settlement Fund; (4) approving the Administrator’s Fees in the amount of $12,979.00 from the Gross Settlement Fund; (5) approving attorneys’ fees of one- third of the maximum settlement fund to Class Counsel in the amount of $116,666.66; (6) approving reimbursement of litigation expenses to Class Counsel in the amount of $2,288.87 from the Gross Settlement Fund; (7) ordering the release of all claims specified in the Settlement Agreement for Plaintiff, all Authorized Claimants, and all Class Members, (8) ordering the dismissal of this action with prejudice; and (9) granting such other and further relief as the Court deems just and proper. PROCEDURAL HISTORY The parties refer the Court to the Affirmation of David D. Barnhorn, Esq., in Support of Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement for a discussion of the procedural history of this matter. THE PROPOSED SETTLEMENT A. The Settlement Class The Class, as defined by the settlement agreement and the Court’s Preliminary Approval Order, is comprised of the named Plaintiff and all individuals who have been employed by 2 3 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Defendants as a non-managerial hourly paid, tipped employee, including but not limited to any server, busser, runner or bar employee, and/or any other employee in a similarly situated position, at any time from May 27, 2015 through February 1, 2023 (the “Class” or “Class Members”). Exhibit A at ¶¶ 1.3, 1.27; Exhibit B. The Class includes 107 Class Members. Rust Decl. at ¶¶ 8, 10. B. Terms of the Parties’ Proposed Settlement The parties refer the Court to the Affirmation of David D. Barnhorn, Esq., in Support of Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement for a detailed discussion of the terms of the parties’ proposed settlement as contained in their Class Settlement Agreement and Release. THE CLAIMS ADMINISTRATION PROCESS The Court approved and appointed Rust Consulting, Inc. (“Rust”) as the Settlement Claims Administrator. Exhibit B. On August 10, 2023, Defendants’ counsel provided Rust with a list (hereinafter the “Class List”) containing the names, employment information, last known mailing address, and social security numbers for 107 Class Members. See Rust Decl. at ¶ 8. On August 24, 2023, Notice Packets were mailed via First Class Mail to the 107 Class Members contained in the Class List, who were notified of their deadline to submit a claim form to participate, opt-out of or object to the settlement.1 Id. at ¶¶ 5-10; Exhibit A to Rust Decl. If a Notice Packet was returned without a forwarding address, Rust performed an address search (i.e. skip trace) on all of these addresses. Rust Decl. at ¶ 11. Ultimately, 12 Notice Packets were returned as undeliverable and without a forwarding address. Id. Through its advanced address searches, Rust was able to locate updated addresses for 7 of the 12 affected Class Members and 1 The named Plaintiff is deemed an Authorized Claimant under the terms of the settlement agreement and therefore mailing of the notice to him was not required. Exhibit A to Barnhorn Aff. at ¶ 1.3. 3 4 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Rust promptly re-mailed Notice Packets to these 7 Class Members at those updated addresses. Id. Of these 7 re-mailed Notices, one of the re-mailed notices was returned as undeliverable from these updated addresses. Id. Notices were also re-mailed to five Class Members at their request. Id. at ¶ 13. Ultimately, 101 of the 107 Class Members received a Notice Packet from the initial mailing or from remailing. Id. Each Notice Packet contained both an English and a Spanish version of the Class Notice, Claim Form, and IRS Form W-9. Id. at ¶ 5; Exhibit A to Rust Decl. The Class Notice advised Class Members of their right to: (1) participate in the Settlement by submitting a Claim Form; (2) opt-out from the Settlement; or (3) object to the Settlement, and the implications of each such action. Id. at ¶ 5; Exhibit A to Rust Decl. The Class Notice advised Class Members of applicable deadlines and other events including the date and location of the Fairness Hearing, and how Class Members could obtain additional information. Exhibit A to Rust Decl. As a result, the Settlement Class Members were well-informed of the terms of the settlement as the Court- approved Notice detailed all material and necessary information, including: information regarding the nature of the lawsuit; why there is a settlement and what the class is; a summary of the substance of the settlement; the procedure and time period for objecting to the settlement, excluding oneself from the settlement, or participating in the settlement; the scope of the releases; and information to contact Rust with any questions about the settlement. Id. The Notice also discussed the maximum amount of attorneys’ fees that could be requested and that an additional sum for litigation expenses would also be requested from the Gross Settlement Fund. Id. Finally, the Notice contained instructions and a deadline for Class Members who wished to object to the Settlement Agreement and/or appear at the Fairness Hearing and when and where the Fairness Hearing would be held. Id. 4 5 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Rust received a total of 10 valid claims, consisting of 9 timely claims from Class Members and the claim of the named Plaintiff. Id. at ¶¶ 8, 15-16; Exhibit A to Barnhorn Aff. at ¶ 1.3; see Barnhorn Aff. at ¶¶ 34-42. Thus, 9.35 percent of the Class submitted valid claims. Rust Decl. at ¶¶ 8, 15-16; Exhibit A to Barnhorn Aff. at ¶ 1.3; see Barnhorn Aff. at ¶¶ 34-42. The portion allocated to each Authorized Claimant will be based on the number of weeks worked during the class period. Exhibit A at ¶ 3.4. Between the mailing of the Notice and the close of the claim-submission period, Rust received only 3 requests for exclusion from the Settlement and no objections to the Settlement. Id. at ¶¶ 14-16; see Barnhorn Aff. at ¶¶ 34-42. Thus, 104 of the Class Members have elected to participate, yielding a participation rate of 97.2% of the Class. Rust Decl. at ¶¶ 14-16; see Barnhorn Aff. at ¶¶ 34-42. The fees and costs allotted for the Claims Administrator amount to $12,979.00 for Rust’s work already performed as well as future work required to finalize the claims administration process. Rust Decl. at ¶ 17. ARGUMENT I. THE PROPOSED SETTLEMENT SHOULD BE APPROVED CPLR 908 requires judicial approval for any compromise of claims brought on a class basis. Fiala v. Met. Life Ins. Co., 899 N.Y.S.2d 531 (Sup Ct. N.Y. Cnty. 2010). In New York, class action settlements are strongly favored. In re New York County Data Entry Worker Prod. Liab. Litig., 616 N.Y.S.2d 424, 427 (Sup. Ct. N.Y. Cnty. 1994) (recognizing that policy considerations favored class-wide settlements). In determining whether to approve a class action settlement, courts examine “the fairness of the settlement, its adequacy, its reasonableness and the best interests of the class members.” Fiala, 899 N.Y.S.2d 537 (citing Klein v. Robert’s Am. 5 6 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Gourmet Food, Inc., 808 N.Y.S.2d 766 (2d Dep’t 2006); and Rosenfeld v. Bear Stearns & Co., 655 N.Y.S.2d 473 (1st Dep’t 1997)). In the final approval determination, the Court considers the monetary reasonableness of the settlement. Klein, 28 A.D.3d at 73; In re Colt Indus. Shareholder Litigation v. Colt Indus., Inc., 155 A.D.2d 154 (1st Dep’t 1990). Courts also consider the response of the class to the settlement. Fiala, 899 N.Y.S.2d at 538. In this case, the extent of support from the Class Members, the judgment of experienced counsel, and the presence of bargaining in good faith with the assistance of an experienced mediator militates strongly in favor of approval. The parties’ settlement is the product of extensive arms’ length negotiations between two law firms with experience in handling complex wage and hour lawsuits. A. The Monetary Amount of the Settlement is Fair and Reasonable Considering the Potential Risks of Litigation As explained in the Motion for Preliminary Approval, the parties exchanged relevant documentary evidence and information necessary to assess the amount of damages owed to the Class Members. The amount of damages for frequency of payment provisions under the NYLL owed to each Class Member varies depending on each individual’s length of employment. However, based on an analysis of the provided records, the best-case assessment of class damages for violations of the NYLL amount to approximately $577,322.28. Notably, whether a settlement amount is reasonable “does not involve the use of a ‘mathematical equation yielding a particularized sum.’” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005) (quoting In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 178 (S.D.N.Y. 2000), aff’d sub nom. D'Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001)). “Instead, ‘there is a range of reasonableness with respect to a settlement – a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs 6 7 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 necessarily inherent in taking any litigation to completion.’” Id. (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)). “[T]here is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 n.2 (2d Cir. 1974). “It is well-settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair.” Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 628 (9th Cir. 1982) (emphasis added); see also Cagan v. Anchor Sav. Bank FSB, 1990 WL 73423, at *12-13 (E.D.N.Y. May 22, 1990) (approving $2.3 million class settlement where the “best possible recovery would be approximately $121 million”). The gross settlement amount of $350,000 – amounting to approximately 60.62% of the Class’s estimated, best-case assessment of damages – falls comfortably within the range of reasonable recovery, and in fact exceeds the typical range of recovery, considering the delay and risks associated with continued litigation. See Jackson v. Ferguson Enterprises, LLC, Index No. 607329/2023 (Sup. Ct. Nassau Cnty. Oct. 19, 2023) (See Dkt. Nos. 16, 23, 26) (approving settlement of $3.3 million that amounted to 14.58% of total damages in NYLL § 191 class settlement); Williams v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. Nos. 25, 35) (approving settlement of $3.9 million that amounted to 6% of total damages in NYLL § 191 class settlement); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. Nos. 14, 25) (approving settlement of $1.2 million that amounted to 8.37% of total damages in NYLL § 191 class settlement); Sorin v. Peloton Interactive, Inc., Index No. 611560/2021 (Sup. Ct. Nassau Cnty. May 13, 2022) (See Dkt. Nos. 24, 35) (approving settlement of $845,000 that amounted to 6.93% of total damages in NYLL § 191 class settlement); Martinez v. DCC La Scala Ltd., Index 7 8 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 No.: 602236/2017 (Sup. Ct. Suffolk Cnty. Jan. 31, 2022) (See Dkt. Nos. 112, 135) (approving settlement of $220,000 that amounted to 64.7% of total damages in NYLL class settlement); Diaz v. Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Nov. 23, 2021) (See Dkt. Nos. 15, 24) (approving settlement of $710,000 that amounted to 44.9% of total damages in NYLL class settlement); Reyes v. Pisticci Restaurant Corp., Docket No. 17-cv-2869 (JGK) (S.D.N.Y. Sept. 9, 2019) (See Dkt. Nos. 110-111) (approving settlement of $550,000 that amounted to 11.57% of total damages in NYLL class settlement). The class settlement amount that the parties compromised upon is favorable in light of the costs and risks of continued litigation. See Barnhorn Aff. at ¶¶ 20-28. Barring settlement, the parties expected to engage in full discovery, including several depositions, extensive motion practice, including for class certification, multiple dispositive motions, and opposition to such motions, and the parties could potentially face a subsequent trial and likely appeals. To establish damages for the Class, a complicated and lengthy trial would be necessary and would require extensive testimony by Defendants’ representatives, Plaintiff, and other potential Class Members, and potentially expert witnesses. Preparing and presenting testimonial and documentary evidence regarding the disputed issues at trial would consume significant amounts of time and resources of the parties and would require substantial judicial resources. Any judgment or interim certification or decertification order could be appealed, thereby extending the duration of the litigation. Even if Plaintiff prevailed at trial and on an appeal, it could nevertheless have taken years for Class Members to recover a monetary judgment, assuming that Defendants paid voluntarily or that Plaintiff were successful in his collection efforts. 8 9 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Notably, if this case were to proceed to trial, Class Counsel recognizes that the apparent strength of Plaintiff’s causes of action are no guarantee against a complete or partial defense verdict. Indeed, the parties both face a number of hotly-contested factual and legal disputes that make predicting the outcome of continued litigation a challenge. Specifically, Defendants paid Plaintiff and the class members at a reduced hourly, tipped rate of pay for their regular and overtime rates of pay under the NYLL. In order to pay employees at a reduced tipped rate of pay, Defendants must satisfy certain requirements of the NYLL. Here, Plaintiff’s and the Class Members’ claims primarily arise from Defendants’ alleged failure to provide a compliant, written tip credit notice to them that strictly complies with the NYLL and that must be provided before paying them at a reduced tipped rate of pay, which Plaintiff contends is a mandatory prerequisite to paying employees at a tipped rate of pay. Defendants dispute that they failed to provide a tip credit notice to the Plaintiff and the Class Members. Moreover, Defendants contend that a written tip credit notice is not required to strictly comply with the NYLL’s requirements to entitle them to pay at a tipped rate of pay. Instead, Defendants rely on case law that they contend permits a court to excuse, in certain circumstances, an employer’s failure to provide a tip credit notice that strictly complies with the NYLL’s requirements. Plaintiff also asserts that Defendants failed to comply with other prerequisites that are required to entitle an employer to pay employees at a reduced hourly tipped rate of pay, including, but not limited to, by allegedly: (1) permitting a non-exempt manager to participate in and retain tips and gratuities from Defendants’ tip pool; and (2) inaccurately recording the amount of tips and gratuities received by Plaintiff and the Class Members. Defendants vehemently deny these factual allegations. The resolution of these disputes is likely to determine whether Defendants are liable for nearly all of the causes of action asserted in this case. Therefore, the outcome of the 9 10 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 resolution of these disputes, which will turn primarily on the credibility of the parties and the Court’s interpretation of conflicting case law, are inherently risky and difficult to predict. Additionally, Defendants contend that Plaintiff and the Class Members are not entitled to spread of hours compensation and that, even if Plaintiff and the Class Members are successful on this cause of action, that they are entitled to lesser damages than alleged. Because Plaintiff alleges that Defendants have failed to pay certain wages and failed to remit certain tips and gratuities owed by them, Plaintiff has also asserted a cause of action under NYLL § 191 for failure to timely pay Plaintiff and the Class Members their wages earned. Under NYLL § 191, individuals classified as manual workers must be paid their wages weekly and not later than seven days of when their wages were earned. Were this matter to proceed in litigation, Defendants are likely to assert certain legal defenses, including an argument that there is no private right of action for violations of NYLL § 191. The parties staunchly disagree as to whether a private right of action exists, which Plaintiff contends exists pursuant to Appellate Division case law and subsequent decisions by other federal and New York courts. Defendants would also have challenged whether the Class Members, or possibly particular categories of Class Members, qualify as manual workers under the NYLL. Furthermore, the parties also dispute the proper remedy for violations of NYLL § 191, if Plaintiff were successful at trial. If successful, Defendants’ legal arguments could defeat the NYLL § 191 class claim in its entirety or dramatically reduce the amount of damages owed to Plaintiff and the Class Members. While Plaintiff believes that he could prove his factual allegations and that his legal contentions are correct, Plaintiff recognizes that Defendants’ defenses, if successful, could prevent Plaintiff and the Class Members from obtaining a recovery or substantially limit the 10 11 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 amount of that recovery at trial. Thus, Plaintiff and the Class Members face substantial risk with respect to establishing both liability and the amount of damages owed to them. Moreover, Defendants would also likely challenge whether certain categories of employees covered by the Class are sufficiently similarly-situated to constitute Class Members. If these various arguments (which Plaintiff disputes) were successful, Defendants’ arguments could possibly limit the number the Class Members covered by the lawsuit or defeat the class causes of action in their entirety. Given these risks, 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, especially in light of the aforementioned risks faced by Plaintiff and the Class Members. Additionally, Defendants asserted, and Plaintiff verified to the extent possible, that Defendants could not withstand a larger judgment or settlement. Indeed, Defendants, as a restaurant, are part of an industry that has suffered from a substantial downturn as a result of the Covid-19 pandemic. As a result, Plaintiff and the Class Members could succeed at trial, yet be unable to collect a substantial portion or possibly any portion of a judgment due to Defendants’ financial circumstances. Thus, if approved, Plaintiff and the Class Members are assured a recovery through the proposed settlement, secured by a confession of judgment, that will result in an expeditious payment of the settlement sum. As such, the parties’ settlement appropriately reflects both the strengths and substantial risks that Plaintiff and the Class Members face with respect to establishing both liability and the amount of damages owed to them and Defendants’ strengths and risks regarding establishing their defenses. Quite simply, even if a judgment were obtained against Defendants at trial, the relief might be no greater, and indeed might be far less, than that provided by the proposed 11 12 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 settlement. Therefore, the proposed class settlement permits a greater recovery than might be achieved at trial or as part of any dispositive motions. In sum, this settlement makes a guaranteed measure of monetary relief available to Class Members in a prompt and efficient manner without any of the uncertainties or risks of continued litigation. B. The Proposed Settlement has been Well-Received by the Class The reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy. Chavarria v. New York Airport Serv., LLC, 875 F. Supp. 2d 164, 173 (E.D.N.Y. 2012). A positive reaction of the class to the proposed settlement favors its approval by the Court. Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d 650, 663 (S.D.N.Y. 2015). 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. Wright v. Stern, 553 F. Supp. 2d 337, 345 (S.D.N.Y. 2008) (“The fact that the vast majority of class members neither objected nor opted out is a strong indication that the proposed settlement is fair, reasonable, and adequate.”). In this case, the overall reaction of the Class to the proposed settlement has been positive. The Notice was successfully mailed to 101 of the 107 Class Members. Of those, Rust received 10 valid claims from the Class Members, consisting of 9 timely claims for the Class and the claim of the named Plaintiff, representing 9.35 percent of the Class. Barnhorn Aff. at ¶¶ 34, 38, 41; Rust Decl. at ¶¶ 8, 15-16; Exhibit A at ¶ 1.3. Additionally, none of the Class Members objected to the settlement. Id. at ¶¶ 35, 40; Rust Decl. at ¶ 16. Rust received only 3 requests for exclusion from the Class. Barnhorn Aff. at ¶¶ 36, 39; Rust Decl. at ¶ 14. 12 13 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Quite simply, it is clear that the response from the Class has been extremely positive. Barnhorn Aff. at ¶¶ 34-42. Indeed, 104 Class Members – representing 97.2 percent of the original Class – elected to remain in the settlement. Id. Of these, none have objected to any term of the proposed class settlement. Id. Notably, the percentage of the Class Members that elected to submit claims – 9.35 percent – strongly reflects that the Class is satisfied with the parties’ proposed class settlement and is within the typical range for similar class action settlements. Id. Thus, Class Members have shown a positive reaction to this settlement and are awaiting the finalization of this matter. The favorable reception by the Class Members constitutes strong evidence of the fairness and adequacy of the proposed settlement and supports judicial approval. Rosenfeld, 655 N.Y.S.2d at 473. C. The Judgment of Experienced Counsel Favors Approval of the Settlement The settlement should be approved because the parties were represented by counsel who are competent and experienced in wage and hour litigation. In re Colt Indus. S’holder Lit., 155 A.D.2d 154, 160 (1st Dep’t 1990); Gordon v. Verizon Commc’ns, Inc., 148 A.D.3d 146, 157 (1st Dep’t 2017). Class Counsel has substantial experience prosecuting and settling wage and hour lawsuits, including class action lawsuits, is well-versed in wage and hour class action law, and is well-qualified to represent the interests of the class. Barnhorn Aff. at ¶¶ 43-51. Indeed, Class Counsel practices almost exclusively in the area of employment law and focuses primarily on wage and hour litigation, including numerous cases such as the instant lawsuit. Id. Moreover, federal and New York state courts have repeatedly found Class Counsel to be qualified class counsel in many other wage and hour class actions. Id.; see Krebs v . The Canyon Club, 22 Misc.3d 1125(A), at *20 (Sup. Ct. Westchester Cnty. Jan. 2, 2009) (appointing class counsel on the basis of attorney’s affirmation containing a description of his experience litigating class 13 14 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 actions). The Firm’s experience in wage and hour litigation, including class action wage and hour lawsuits, combined with Class Counsel’s judgment that the settlement is fair and reasonable when compared to the risks of litigation, weighs in favor of approval of the parties’ settlement. D. The Presence of Good Faith Bargaining Favors Approval of the Settlement Where, as here, there is no evidence to the contrary, “negotiations are presumed to have been conducted at arm’s length and in good faith.” Gordon, 148 A.D.3d at 157. Prior to settling this case, the parties exchanged and reviewed relevant documents and information before participating in mediation. The parties only reached a settlement after engaging in contentious settlement negotiations and with the extensive assistance of mediator Giulio Zanolla, Esq., an experienced and highly reputable mediator that regularly handles employment and wage and hour disputes, including high-stakes class actions. Thereafter, the Parties engaged in spirited negotiations regarding the terms of the Parties’ formal settlement agreement. Notably, the presence of a mediator during the settlement process “provides assurance that the settlement was not the product of collusion.” Bilbao v. LCS Enters. Inc., 2018 WL 1399199, at *2 (S.D.N.Y. Mar. 19, 2018); see also Hernandez v. Anjost Corp., 2013 WL 4145952, at *2 (S.D.N.Y. Aug. 14, 2013) (“The assistance of an experienced mediator . . . reinforces that the Settlement Agreement is non-collusive."); Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 618- 619 (S.D.N.Y. 2012) (citing In re Giant Interactive Grp., Inc. Sec. Litig., 279 F.R.D. 151, 159- 160 (S.D.N.Y. 2011)) (explaining parties entitled to a presumption of fairness where mediator facilitated arms’-length settlement). Thus, it is clear that the settlement was reached through contested, protracted, and contentious arms’-length negotiations. 14 15 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 E. Nature of the Issues of Law and Fact Litigating this case to a conclusion would be complex, lengthy and expensive. Defendants were prepared to defend the case vigorously. As discussed above, continued litigation would have required substantial discovery and motion practice, including dispositive motions, a class certification motion, and likely an appeal. Due to the nature of Defendants’ defenses, Plaintiff faced substantial obstacles in maintaining the current class action through trial and establishing liability. Defendants would have likely appealed any order granting class certification or for summary judgment with respect to liability and/or damages. It would undoubtedly be years before the issues were resolved. Considering the difficult and unpredictable litigation that would ensue should this settlement not be approved, the risk that the current case law may change for the worse for the Class Members during that time, and the substantial monetary relief made available to Class Members in a prompt and efficient manner without any of the uncertainties or risks of continued litigation, the settlement should be approved. II. THE CLAIMS ADMINSTRATOR’S FEES AND COSTS SHOULD BE APPROVED Rust Consulting Inc., a third-party settlement claims administrator, was retained to administer the settlement. Rust Consulting Inc.’s fee for their services amounts to $12,979.00. Rust Decl. at ¶ 17. The Settlement Claims Administrator’s fee is reasonable given the extensive work involved in administering this settlement. See Bijoux v. Amerigroup New York, LLC, 2016 WL 2839797, at *2 (E.D.N.Y. May 12, 2016) (approving claims administrator’s fees of $50,000); Wisdom v. Walgreen Co., Index No. 614014/2021 (Sup. Ct. Nassau Cnty. Sept. 14, 2022) (See Dkt. Nos. 15, 19) (approving claims administrator's fees of $90,000); Kingston v. Buy Buy Baby, Inc., Index No. 603184/2021 (Sup. Ct. Nassau Cnty. Apr. 8, 2022) (See Dkt. No. 20) 15 16 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 (approving claims administrator’s fees of $60,000); Williams v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No. 35) (approving claims administrator's fees of $30,858); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No. 25 ) (approving claims administrator's fees of $22,872); Diaz v. Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Nov. 23, 2021) (See Dkt. No. 24) (approving claims administrator's fees of $30,000); Medina v. Neri’s Bakery Products, Inc., Index. No. 22916/2019 (Sup. Ct. Bronx Cnty. Feb. 26, 2020) (See Dkt. No. 25) (approving claims administrator’s fees of $30,000); Canales v. Manhasset Restaurant LLC, Index No. 603053/2017 (Sup. Ct. Nassau Cnty. Oct. 10, 2018) (See Dkt. No. 35) (approving claims administrator's fees of $50,000). Accordingly, Plaintiff respectfully requests that the Court approve payment of the remainder of the Settlement Claims Administrator’s fees and costs. III. CLASS COUNSEL’S ATTORNEYS’ FEES SHOULD BE APPROVED The Settlement Agreement provides for attorneys’ fees in an amount equal to one-third of the Settlement Amount (i.e. $116,666.66), plus litigation costs discussed below. See Exhibit A at ¶ 3.3. The Class Notice approved by the Court and sent to Class Members indicated that the Settlement Agreement provides for attorneys’ fees of one-third of the Settlement Amount, as well as an additional amount for litigation expenses. Exhibit A to Rust Decl. No Class Member has objected to the payment of these attorneys’ fees. Rust Dec. at ¶ 16. The amount of fees requested is fair and reasonable using the percentage of recovery of one-third of the settlement sum. Bijoux, 2016 WL 2839797, at *1 (approving $550,000 in attorneys’ fees, which is one-third of the total settlement amount, plus $14,270.00 in costs and expenses); Mendez v. MCSS Rest. Corp., 2022 WL 3704591, at *9 (E.D.N.Y. Aug. 26, 2022) (quoting Kochilas v. Nat’l Merch. 16 17 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Servs., 2015 WL 5821631, at *9, (E.D.N.Y. Oct. 2, 2015)) (holding “Class Counsel’s fee request of one-third (33.33%) of the Settlement Fund is ‘reasonable and consistent with the norms of class litigation in this circuit,’ including wage and hour cases, and ‘should be awarded on the basis of the total funds made available’” and collecting cases for these propositions); Toure v. Amerigroup Corp., 2012 WL 3240461, at *5 (E.D.N.Y. Aug. 6, 2012) (approving attorneys’ fees of $1,483,333, or one-third of the settlement); Cucuzza v. National Debt Relief, LLC, Index No. 601631/2021 (Sup. Ct. Nassau Cnty. Apr. 20, 2022) (See Dkt. No. 21); Cortes v. Mexican Hospitality Operator LLC, Index No. 601406/2021 (Sup. Ct. Nassau Cnty. Feb. 28, 2022) (See Dkt. No. 18); Gabriel v. Homyn Enterprises Corp., Index No. 504595/2021 (Sup. Ct. Kings. Cnty. Nov. 23, 2021) (See Dkt. No. 15); Coba v. Wagamama USA, LLC, Index No. 614988/2020 (Sup. Ct. Nassau Cnty. Nov. 3, 2021) (See Dkt. No. 17); Flowers v. FSNY Restaurant Associates, LLC, Index No. 600976/2021 (Sup. Ct. Nassau Cnty. Oct. 21, 2021) (See Dkt. No. 19); Hyken v. Greenwich BBQ, LLC, Index No. 608689/2020 (Sup. Ct. Nassau Cnty. Jun. 3, 2021) (See Dkt. No. 19); Figueroa v. United American Security, LLC, Index No. 613892/2020 (Sup. Ct. Nassau Cnty. May 24, 2021) (See Dkt. No. 21); Luna v. Zuma NYC, LLC, Index No. 509547/2020 (Sup. Ct. Kings Cnty. May 10, 2021) (See Dkt. No. 40); Lemma v. 103W77 Partners LLC, Index No. 513125/2019 (Sup. Ct. Kings Cnty. Mar. 31, 2021) (See Dkt. No. 24); Guzman v. Del Frisco’s of New York, LLC, Index No. 617666/2019 (Sup. Ct. Nassau Cnty. Mar. 18, 2021) (See Dkt. No. 61); Jackson v. Ferguson Enterprises, LLC, Index No. 607329/2023 (Sup. Ct. Nassau Cnty. Oct. 19, 2023) (See Dkt. Nos. 16, 23, 26); Williams v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No. 35); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Mar. 1, 2023) (See Dkt. No. 25 ); Medina v. Neri’s Bakery Products, Inc., Index. No. 22916/2019 (Sup. 17 18 of 23 FILED: NASSAU COUNTY CLERK 12/27/2023 11:04 PM INDEX NO. 606033/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/27/2023 Ct. Bronx Cnty. Feb. 26, 2020) (See Dkt. No. 25); Canales v. Manhasset Restaurant LLC, Index No. 603053/2017 (Sup. Ct. Nassau Cnty. Oct. 10, 2018) (See Dkt. No. 35); Robinson v. Big City Yonkers, Inc., Index No. 600159/2016 (Sup. Ct. Nassau Cnty. Feb. 16, 2018) (See Dkt. No. 291). The fee that Class Counsel seeks – 33.33% of the settlement fund – is consistent with those routinely awarded in class action settlements. See Wisdom v. Walgreen Co., Index No. 614014/2021 (Sup. Ct. Nassau Cnty. Sept. 14, 2022) (See Dkt. Nos. 15, 19) (awarding $9,700,000 as attorneys’ fees in a class action settlement, which was one-third of the settlement sum); Rodriguez v. Delta Air Lines, Inc., Index No. 602842/2021 (Sup. Ct. Nassau Cnty. July 26, 2022) (See Dkt. Nos. 17, 21) (awarding $1,916,666.67 as attorneys’ fees in a class action settlement, which was one-third of the settlement sum, and an additional amount for litigation costs); Kingston v. Buy Buy Baby, Inc., Index No. 603184/2021 (Sup. Ct. Nassau Cnty. Apr. 8, 2022) (See Dkt. No. 20) (awarding $1,100,000 as attorneys’ fees in a class action settlement, which was one-third of the settlement sum); Puglisi v. TD Bank, N.A., 2015 WL 4608655, at *1 (E.D.N.Y. July 30, 2015) (approving $3,300,000.00 in attorneys’ fees equal to one-third of the settlement fund); Clerrosier v. 7-Eleven, Inc., Index No. 614321/2021 (Sup. Ct. Nassau Cnty. Feb. 13, 2023) (See Dkt. No. 21) (awarding $583,333.33 as attorneys’ fees in a claims made class action settlement, which was one-third of the maximum settlement sum, and an additional amount for litigation costs); Mendez, 2022 WL 3704591, at *9 (approving attorney’s fees of $163,595.33, or one-third of the maximum settlement sum in claims made class settlement, and an additional amount for litigation costs); Jackson v. Ferguson Enterprises, LLC, Index No. 607329/2023 (Sup. Ct. Nassau Cnty. Oct. 19, 2023) (See Dkt. Nos. 16, 23, 26) (approving attorney’s fees of $1,100,000, which was one-third of the maximum settlement sum in claims made class settlement, and an additional amount for litigation costs); Williams v. Sunrise Senior 18