Motion for Writ in James Mangan, Kimberly Barner individually and on behalf of all others similarly situated v. Walgreen Eastern Co., Inc., Walgreen, Co., Duane Reade, Inc.| Trellis.Law

On November 23, 2022 a Motion-Secondary was filed involving a dispute between James Mangan, Kimberly Barner Individually And On Behalf Of All Others Similarly Situated, and Duane Reade, Inc., Walgreen, Co., Walgreen Eastern Co., Inc., for Torts - Other (NYLL and FLSA violations) in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 12/21/2023 03:51 PM INDEX NO. 616538/2022
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/21/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------------------------------------------- X
JAMES MANGAN and KIMBERLY BARNER, individually :
and on behalf of all others similarly situated, :
:
Plaintiffs, : Index No. 616538/2022
:
- against - :
:
WALGREEN EASTERN CO., INC., WALGREEN, CO. :
AND DUANE READE, INC., :
:
Defendants. :
------------------------------------------------------------------------ X

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
UNOPPOSED MOTION FOR FINAL APPROVAL OF SETTLEMENT

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 1
PROCEDURAL BACKGROUND................................................................................................. 2
I. INVESTIGATION .............................................................................................................. 2
II. SETTLEMENT DISCUSSIONS ........................................................................................ 3
SUMMARY OF THE SETTLEMENT TERMS ............................................................................ 4
I. CLASS MEMBERS............................................................................................................ 4
II. THE SETTLEMENT FUND .............................................................................................. 5
III. NOTICE TO CLASS MEMBERS...................................................................................... 5
IV. RELEASES ......................................................................................................................... 6
V. ALLOCATION FORMULA AND PAYMENT ................................................................ 7
ARGUMENT .................................................................................................................................. 8
I. THE PROPOSED SETTLEMENT MEETS THE REQUIREMENT FOR FINAL
APPROVAL ....................................................................................................................... 8
A. The Proposed Settlement Is Fair, Adequate, and Reasonable ................................ 9
1. Factors 1 & 5: The Likelihood of Success and the Issues at Stake.......... 10
2. Factor 2: Extent of Support from the Class ............................................. 12
3. Factor 3: The Value of the Settlement Balanced Against the Anticipated
Recovery ................................................................................................... 13
4. Factor 4: Judgment of Experienced Class Counsel Favors Final
Approval ................................................................................................... 14
II. THE REQUESTED REPRESENTATIVE PLAINTIFFS PAYMENT SHOULD BE
APPROVED ..................................................................................................................... 15
III. APPROVAL OF THE FLSA SETTLEMENT IS WARRANTED .................................. 16
IV. CLASS COUNSEL’S FEES AND EXPENSES ARE APPROPRIATE AND SHOULD
BE APPROVED ............................................................................................................... 17
A. The Requested Fee is Fair and Reasonable........................................................... 18
1. The Risks of Litigation Warrant Recovery of the Requested Fees ........... 19

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2. The Litigation’s Magnitude and Complexity, and the Responsibility
Counsel Undertook, Warrant Recovery of the Requested Fees ................ 20
3. Counsel Did Not Have the Benefit of a Prior Judgment ........................... 20
4. The Amount Recovered is Proportional to the Requested Fees ............... 21
5. The Case’s History and Work Done by Counsel Was Substantial ........... 21
6. Counsel Maintains Reputable Standing Among the Bar .......................... 21
7. The Fee Is Consistent with What a Victorious Plaintiff Would Pay ........ 22
B. Counsel Is Entitled to Reimbursement of Expenses Under the Settlement .......... 22
CONCLUSION ............................................................................................................................. 22

iii

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TABLE OF AUTHORITIES

CASES PAGE(S)

Ansoumana v. Gristede’s Operating Corp.,
201 F.R.D. 81 (S.D.N.Y. 2001) ...............................................................................................16

In re Austrian & German Bank Holocaust Litig.,
80 F. Supp. 2d 164 (S.D.N.Y. 2000)........................................................................................11

Barrentine v. Arkansas-Best Freight Sys., Inc.,
450 U.S. 728 (1981) ...........................................................................................................10, 11

Beckman v. KeyBank, N.A.,
293 F.R.D. 467 (S.D.N.Y. 2013) .................................................................................11, 17, 21

Capilupi v. People’s United Fin., Inc.,
No. 15 Civ. 5247, 2018 U.S. Dist. LEXIS 167550 (E.D.N.Y. Sept. 27, 2018) .......................21

Capone v. Patchogue-Medford Union Free Sch. Dist.,
No. 04 Civ. 2947, 2011 U.S. Dist. LEXIS 18194 (E.D.N.Y. Feb. 23, 2011) ..........................22

Chambery v. Tuxedo Junction Inc.,
No. 12 Civ. 06539, 2014 U.S. Dist. LEXIS 101939 (W.D.N.Y. July 25, 2014) .....................13

Charles v. Avis Budget Car Rental, LLC,
No. 152627/2017, 2017 N.Y. Slip Op. 32644(U), (Sup. Ct., N.Y. County
2017) ..................................................................................................................................12, 18

Chavarria v. N.Y. Airport Serv., LLC,
875 F. Supp. 2d 164 (E.D.N.Y. 2012) ...............................................................................12, 17

Cheeks v. Freeport Pancake House, Inc.,
796 F.3d 199 (2d Cir. 2015)...............................................................................................16, 21

Cohan v. Columbia Sussex Mgmt., LLC,
No. 12 Civ. 3203, 2018 U.S. Dist. LEXIS 170192 (E.D.N.Y. Sept. 28, 2018) .......................22

Cox v. Microsoft Corp.,
907 N.Y.S.2d 436 (Sup. Ct., N.Y. County, Feb. 2, 2007) .......................................................15

DeLeon v. Wells Fargo Bank, N.A.,
No. 12 Civ. 4494, 2015 U.S. Dist. LEXIS 65261 (S.D.N.Y. May 7, 2015) ............................13

Fernandez v. Legends Hosp., LLC,
No. 152208/2014, 2015 N.Y. Misc. LEXIS 2193 (Sup. Ct., N.Y. County, June
20, 2015) ............................................................................................................................12, 18

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Fiala v. Metro. Life Ins. Co., Inc.,
899 N.Y.S.2d 531 (Sup. Ct., N.Y. County 2010) ......................................................................9

Frank v. Eastman Kodak Co.,
228 F.R.D. 174 (W.D.N.Y. 2005) ................................................................................13, 15, 20

Friedman v. Northville Indus. Corp.,
1991 N.Y. Misc. LEXIS 837 (Sup. Ct., Suffolk County Dec. 4, 1991).............................18, 22

Garcia v. Pancho Villa’s of Huntington Vill., Inc.,
No. 09 Civ. 486, 2012 U.S. Dist. LEXIS 70144 (E.D.N.Y. May 21, 2012) ..........................8, 9

Gordon v. Verizon Commc’ns, Inc.,
46 N.Y.S. 3d 557 (N.Y. App Div. 1st Dep’t 2017) .................................................................14

Hart v. RCI Hosp. Holdings, Inc.,
No. 09 Civ. 3043, 2015 U.S. Dist. LEXIS 126934 (S.D.N.Y. Sept. 22, 2015) .................19, 20

Hastings v. Regeis Care Ctr., LLC,
No. 23900/2016E, 2018 N.Y. Misc. LEXIS 11289 (Sup. Ct., Bronx County,
Oct. 23, 2018) ..............................................................................................................18, 19, 22

Hosue v. Calypso St. Barth, Inc.,
No. 160400/2015, 2017 N.Y. Slip Op. 31928(U), (Sup. Ct., N.Y. County Sept.
11, 2017) ..................................................................................................................................14

In re Ira Haupt & Co.,
304 F. Supp. 917 (S.D.N.Y. 1969)...........................................................................................11

Jiannaras v. Alfant,
No. 09 Civ. 21262, 2012 N.Y. Misc. LEXIS 6692 (Sup. Ct., Queens County,
Jan. 10, 2012) ...........................................................................................................................10

Johnson v. Brennan,
No. 10 Civ. 4712, U.S. Dist. LEXIS 105775 (S.D.N.Y. Sept. 16, 2011) ................................10

Karic v. Major Auto. Co., Inc.,
No. 09 Civ. 5708, U.S. Dist. LEXIS 57782 (E.D.N.Y. April 27, 2016)..................................16

Klein v. Robert’s Am. Gourmet Food, Inc.,
808 N.Y.S.2d 766 (App. Div. 2d Dep’t 2006) ...........................................................................9

Klurfeld v. Equity Enters., Inc.,
436 N.Y.S.2d 303 (App. Div. 2d Dep’t 1981) .........................................................................10

In re Lawrence,
24 N.Y.3d 320 (2014) ..............................................................................................................20

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Lopez v. Dinex Grp., LLC,
No. 155706/14, 2015 N.Y. Slip Op. 31074 (U), (Sup. Ct., N.Y. County 2015) ........................8

Mancia v. HSBC Secs. (USA) Inc.,
No. 15 Civ. 9400, 2016 N.Y. Misc. LEXIS 496 (Sup. Ct., Kings County, Feb.
19, 2016) ..................................................................................................................................10

Mangan et al. v. Walgreen Eastern Co. et al.,
No. 616538/2022 (N.Y. Sup. Ct. July 21, 2022) .......................................................................2

Mendez v. MCSS Rest Corp.,
No. 16 Civ. 2746, 2022 U.S. Dist. LEXIS 154102 (E.D.N.Y. Aug. 26, 2022) .......................13

Mentor v. Imperial Parking Sys.,
No. 05 Civ. 7993, U.S. Dist. LEXIS 132831 (S.D.N.Y. Dec. 15, 2010) .................................16

Milton v. Bells Nurses Registry & Emp. Agency, Inc.,
No. 502303/2015, 2015 N.Y. Misc. LEXIS 4604 (Sup. Ct., Kings County,
Dec. 14, 2015) ..............................................................................................................12, 17, 18

Moses v. N.Y. Times Co.,
79 F.4th 235 (2d Cir. 2023) .....................................................................................................10

In re Prudential Sec. Inc. Ltd. P’ships Litig.,
985 F. Supp. 410 (S.D.N.Y. 1997)...........................................................................................20

Reyes v. Altamarea Grp.,
No. 10 Civ. 6451, U.S. Dist. LEXIS 115984 (S.D.N.Y. Aug. 16, 2011) ................................17

Rodriguez v. Joseph Eletto Transfer, Inc.,
No. 5431/16, 2016 N.Y. Slip Op. 32592(U) (Sup. Ct., Nassau County 2016) ..................16, 18

Ryan v. Volume Servs. Am., Inc.,
No. 12 Civ. 65970, 2013 N.Y. Misc. LEXIS 932 (Sup. Ct., N.Y. County, Mar.
7, 2013) ....................................................................................................................................18

Silberblatt v. Morgan Stanley,
524 F. Supp. 2d 425 (S.D.N.Y. 2007)......................................................................................15

Smith v. Vista Org.,
No. 89 Civ. 48, 1991 U.S. Dist. LEXIS 10484 (S.D.N.Y. July 29, 1991)...............................14

Taft v. Ackermans,
No. 02 Civ. 7951, 2007 U.S. Dist. LEXIS 9144 (S.D.N.Y. Jan. 31, 2007) .............................19

Varela v. Bldg. Serv. Indus., LLC,
No. 600037/16, 2018 N.Y. Slip Op. 33514(U), (Sup. Ct., Nassau County June
21, 2018) ..................................................................................................................................18

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Velez v. Majik Cleaning Serv.,
No. 03 Civ. 8698, 2007 U.S. Dist. LEXIS 46223 (S.D.N.Y. June 22, 2007) ..........................11

Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,
396 F.3d 96 (2d Cir. 2005).......................................................................................................17

Weiss v. Drew Nat’l Corp.,
465 F. Supp. 548 (S.D.N.Y. 1979)...........................................................................................12

STATUTES

NYLL § 190(4) ................................................................................................................................2

NYLL § 191(1)(a) ............................................................................................................................2

RULES

CPLR § 908......................................................................................................................................8

OTHER AUTHORITIES

4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 13.1 (5th ed.) .........................8

vii

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PRELIMINARY STATEMENT

Plaintiffs James Mangan and Kimberly Barner (“Plaintiffs”) and Defendants Walgreen

Eastern Co., Inc., Walgreen, Co., and Duane Reade, Inc. (“Defendants”) have settled this putative

class and collective action for up to Nine Million, Three Hundred and Fifty Thousand Dollars and

Zero Cents ($9,350,000.00), pending final approval of the Court. After the Court preliminarily

approved the settlement (see NYSCEF No. 12, Mot. Seq. 001), the Settlement Administrator

notified the thousands of Class and Putative Collective Members of the Settlement and, to date,

only one individual has opted out of the Settlement and none have objected.

Through this Unopposed Motion for Final Approval of Settlement (“Final Approval

Motion”), Plaintiffs respectfully requests that the Court: (1) grant final approval of the Settlement

Agreement and Release (“Settlement Agreement”), attached as Exhibit 1 to the Affirmation of

Justin M. Swartz in Support of Plaintiffs’ Final Approval Motion (“Swartz Aff.”);1 (2) approve the

proposed Representative Plaintiffs Payment for the Named Plaintiffs and Opt-in Plaintiffs; (3)

approve Class Counsel’s attorneys’ fees and costs; and (4) approve the Settlement Administrator’s

fees and costs.

FACTUAL BACKGROUND

Plaintiffs brought this action on behalf of themselves and other similarly situated

employees who worked in the State of New York as non-exempt, hourly Walgreens and Duane

Reade Assistant Store Managers (“ASMs”); non-exempt, hourly Walgreens and Duane Reade

Shift Leaders (“SLs”); and other non-exempt, hourly Walgreens employees (“non-exempt

Walgreens employees”) (collectively, “Walgreens employees”), seeking to recover for unpaid

1
Unless otherwise indicated, all exhibits referenced herein are attached to the Swartz
Affirmation.

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overtime wages, violations of New York Labor Law (“NYLL”) §§ 190(4), 191(1)(a), and other

damages pursuant to the Fair Labor Standards Act (“FLSA”) and the NYLL. Plaintiffs allege,

inter alia, that Defendants: 1) failed to pay non-exempt, hourly ASMs and SLs all overtime wages

owed for work performed before the shift start time, during their 30-minute meal breaks, and after

their shifts; and 2) paid non-exempt, hourly Walgreens employees, who qualify as manual workers

pursuant to NYLL § 190(4), on a bi-weekly basis instead of within seven days after the end of the

workweek, as required by NYLL § 191(1)(a). See Mangan et al. v. Walgreen Eastern Co. et al.,

No. 616538/2022 (N.Y. Sup. Ct. July 21, 2022) NYSCEF No. 1 ¶¶ 4, 6-8, 38, 55-56 (hereinafter

NYSCEF No. 1 (Complaint)). Defendants vigorously deny any wrong doing and will continue to

contest Plaintiffs’ claims if the action does not settle. The negotiated settlement of up to Nine

Million, Three Hundred and Fifty Thousand Dollars and Zero Cents ($9,350,000.00) is a fair

compromise that easily falls within the range of reasonableness.

PROCEDURAL BACKGROUND

I. INVESTIGATION

Before initiating this action, Plaintiffs’ Counsel conducted a thorough investigation which

included corporate research regarding Defendants’ business locations, corporate ownership, and

past litigation; and factual and legal research regarding the underlying merits of Plaintiffs’ claims,

possible defenses, the proper measure of damages, and the likelihood of class and collective

certification. Swartz Aff. ¶ 14. Plaintiffs’ Counsel also conducted in-depth interviews with the

Named Plaintiffs and other similarly situated ASMs and SLs, including the seven Opt-In Plaintiffs,

Magdalene Addo, Aryanna Dudnath, Devin Garrett, Dawn Luongo, Bobisha Taylor, William

Walters, and Emmanuel Obeng (“Opt-in Plaintiffs”). Id. ¶ 15. These interviews helped Plaintiffs’

Counsel determine the hours that Walgreens employees alleged they worked and recorded, the

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nature of their duties, and Defendants’ policies as they relate to ASMs, SLs, and other non-exempt

employees. Id. ¶ 16.

II. SETTLEMENT DISCUSSIONS

On November 12, 2021, Plaintiffs’ Counsel sent a demand letter to Defendants outlining

the allegations and inviting Defendants to engage in pre-litigation settlement discussions on behalf

of the class of similarly situated employees. Id. ¶ 17. After Defendants reviewed the demand

letter, the Parties agreed to engage in a dialogue regarding the possibility of a resolution of the

alleged claims and, on March 1, 2022, the Parties entered into an agreement that tolled the statutes

of limitations applicable to Plaintiffs’ off-the-clock claims. Id. ¶ 18. The Parties agreed to an

exchange of information and data to facilitate settlement discussions. Id. ¶ 19.

The Parties subsequently agreed to attend a full-day mediation before Martin Scheinman,

an experienced mediator. Id. ¶ 20. In advance of mediation, Defendants produced summary

payroll data for the proposed Class. Id. ¶ 21. Plaintiffs’ Counsel evaluated the claims and

Defendants’ defenses based on the discovery produced by Defendants, as well as Plaintiffs’ own

investigation. Id. ¶ 22. Plaintiffs also used the discovery to calculate damages on a class-wide

basis. Id. ¶ 23. Prior to the mediation, the Parties exchanged detailed mediation statements with

Mr. Scheinman and each other. Id. ¶ 24.

The Parties participated in a full-day mediation session with Mr. Scheinman on June 29,

2022. Id. ¶ 25. The Parties did not reach a settlement, but they agreed to exchange further data

and continue negotiations. Id. On October 11, 2022, the Parties participated in a second half-day

mediation with Mr. Scheinman. Id. ¶ 26. Following this session, the Parties agreed to also discuss

Section 191 claims on behalf of non-exempt employees. Id. ¶ 27. Accordingly, Defendants shared

additional data in advance of a third mediation session. Id. The parties held a third full-day

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mediation with Mr. Scheinman on December 2, 2022. Id. ¶ 28. Following additional negotiations,

the Parties reached an agreement which was memorialized in a Memorandum of Understanding

on March 31, 2023. Id. ¶ 29. The parties subsequently finalized the Settlement Agreement, which

was fully executed on June 9, 2023. At all times, settlement negotiations were conducted on an

arm’s-length basis. Id. ¶ 30.

On November 23, 2022, Plaintiffs filed the instant matter seeking unpaid overtime wages,

NYLL damages, and related damages on behalf of ASMs, SLs, and other non-exempt Walgreens

employees pursuant to federal and state wage and hour laws. See NYSCEF No. 1 (Complaint).

On June 16, 2023, Plaintiffs filed their Unopposed Motion for Preliminary Settlement Approval

(“Preliminary Approval Motion”). On September 29, 2023, this Court granted Plaintiffs’ Motion

for Preliminary Approval. See NYSCEF No. 12.

SUMMARY OF THE SETTLEMENT TERMS

I. CLASS MEMBERS

“Group 1” covers all Walgreens and Duane Reade non-exempt, hourly ASMs who worked

for Defendants in the State of New York at any time from March 1, 2016 to December 2, 2022 and

who are included on the Class List.

“Group 2” covers all Walgreens and Duane Reade SLs who worked for Defendants in the

State of New York at any time from March 1, 2016 to December 2, 2022 and who are included on

the Class List.

“Group 3” covers individuals employed as non-exempt hourly workers, other than ASMs

and SLs, who worked for Defendants in the State of New York from June 1, 2021 to December 2,

2022 and who are included on the Class List.

Collectively, the three Groups are referred to as the “Classes.”

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II. THE SETTLEMENT FUND

Defendants have agreed to pay up to Nine Million, Three Hundred and Fifty Thousand

Dollars and Zero Cents ($9,350,000.00) to cover: (1) individual settlement awards for Class

Members and Putative Collective Members (collectively “Class Members”) (Settlement Ag. §

1.36); (2) a Representative Plaintiff Payment of up to $5,000.00 each to the Named Plaintiffs and

Opt-In Plaintiffs (id. § 3.1(B)); (3) Plaintiffs’ Counsel’s attorneys’ fees of up to one-third of the

Total Settlement Amount, plus reimbursement of actual litigation expenses and costs (id. § 3.2);

and (4) the Settlement Administrator’s fees and costs (id. § 1.36). The employer’s share of payroll

taxes will be paid from any reversion; if the reversion is insufficient to cover payroll taxes, they

shall be paid by Defendants separately from and in addition to the Total Settlement Amount. Id.

§ 1.12.

III. NOTICE TO CLASS MEMBERS

In accordance with the Settlement Agreement and the Court’s Preliminary Approval Order

(NYSCEF No. 11), the Settlement Administrator notified Class Members of the Settlement. See

Ex. 2 (Administrator Aff.) ¶ 11. On December 1, 2023, the Settlement Administrator sent the

Court-approved Notice and Claim Form to Class Members via First-Class U.S. Mail. See id. The

Notice advised Class Members of applicable deadlines and other events, such as the Final

Approval Hearing, and how they could obtain additional information. See id., Ex. A. The Notice

also informed Class Members of Plaintiffs’ request for a Representative Plaintiffs Payment, as

well as Class Counsel’s intention to seek one-third of the Settlement Fund for attorneys’ fees plus

reimbursement of actual litigation expenses and costs. See id.

During the notice period, Class Counsel assisted the Settlement Administrator by speaking

with Class Members about the terms of the Settlement and providing updated mailing addresses

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to the Settlement Administrator. Swartz Aff. ¶ 33. The Settlement Administrator also took

reasonable efforts to locate the address of any Class Member for whom Notice was returned as

undeliverable. Ex. 2 (Administrator Aff.) ¶¶ 12-13. The Settlement Administrator re-mailed

approximately 399 Notices that had initially come back as undeliverable. Id. To date, only 72 of

the approximately 5,410 Notices remain undeliverable by the United States Post Office. Id.

As of the time of this filing, one Class Member has opted out of the Settlement, and no

Class Member has objected to the Settlement. Id. ¶¶ 17-18. Following the latest potential extended

claim form deadline (no later than March 30, 2024), the Administrator will provide an updated

declaration with the final number of claim forms submitted, and objections or opt-out requests

received. In the event any objections are received, the Parties’ counsel will also submit a response

for the Court.

IV. RELEASES

All Class Members who do not timely opt out of the settlement will release the “New York

State Wage and Hour and Labor Law Claims” (“Released Class Claims).2 Settlement Agreement

§ 4.1(A).

Participating Collective Members, i.e., those individuals who receive and cash a Settlement

Check, will also release the “Released FLSA Claims.”3 Id. § 4.1(B).

2
“New York State Wage and Hour and Labor Law Claims” means any and all statutory,
constitutional, contractual, or common law wage and hour claims, including but not limited to
claims under the New York Labor Law and local laws, claims for unpaid regular or overtime
wages, penalties, damages, frequency of pay, spread-of-hours pay, call-in pay, unlawful
deductions, failure to maintain and furnish employees with proper rate of pay notices, and failure
to maintain and furnish employees with proper wage statements, as well as any other State Law
Claims, from the beginning of time through the date on which the Court enters the Final Approval
Order. See Ex. 1 (Settlement Agreement) § 4.1(A).
3
“Released FLSA Claims” means any and all claims under federal law for any wage and
hour violations that may have occurred arising from or relating to each Class Member’s

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Additionally, in consideration of the Representative Plaintiffs Payment, Plaintiffs and Opt-

In Plaintiffs will agree to a general release. Id. § 4.1(C).

V. ALLOCATION FORMULA AND PAYMENT

The Settlement Fund shall be allocated as follows. First, Class Members in Group One

shall receive two (2) points for every week they worked for Defendants during the Relevant

Time Period. Second, Class Members in Group Two shall receive one (1) point for every week

they worked for Defendants during the Relevant Time Period. Third, Class Members in Group

Three shall receive one (1) point for every week they worked for Defendants during the Relevant

Time Period. The Settlement Fund, after deductions for court approved attorneys’ fees and

costs, Claims Administrator’s fees and expenses, Representative Plaintiffs Payments, and all

other court approved expenses or disbursements, will be divided by the aggregate number of

points accrued by all of the Class Members and any points that would have been attributable to

any individuals who opted-out of the settlement had they remained Class Members (“Point

Value”). Each Class Member’s total points will be multiplied by the Point Value to determine

his or her “Individual Settlement Amount.” Settlement Agreement § 3.1(A).

Within twenty (20) business days after the Final Effective Date, Defendants shall deposit

the Total Settlement Amount into the QSF. Id. § 3.1(C). Fifteen (15) business days after the

Funding Date, the Settlement Administrator will mail Settlement Checks to all Participating New

employment or engagement with Releasees, including, but not limited to, any and all claims for
unpaid wages, overtime pay, penalties, and all other claims that were or could have been asserted
in the Litigation, whether known or unknown, under federal wage and hour laws (including, but
not limited to, the Fair Labor Standards Act (“FLSA”)), through the date on which the Court enters
the Final Approval Order. This release includes all claims for all damages arising from any such
released claims, including claims for liquidated damages, interest, and attorneys’ fees and costs,
but excludes retaliation claims. See Ex. 1 (Settlement Agreement) § 4.1(B).

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York Class Members and Putative Collective Members. Id. § 3.1(D). Each Participating New

York Class Member and Putative Collective Member will have one hundred and twenty (120)

days following the issuance of Settlement Checks to negotiate the check. Id. § 3.1(E). The

Settlement Administrator will send Check Reminders via First-Class U.S. Mail thirty (30) days

prior to the expiration deadline for Participating Claimants who have not yet cashed their

Settlement Checks reminding them to negotiate their checks prior to the one-hundred and twenty

(120) day deadline. Id. § 3.1(E).

ARGUMENT

I. THE PROPOSED SETTLEMENT MEETS THE REQUIREMENT FOR FINAL
APPROVAL

New York Civil Practice Law and Rules (“CPLR”) § 908 requires judicial approval for any

compromise of claims brought on a class basis. This approval process includes three steps: (1)

preliminary approval of the proposed settlement after submission to the Court of a motion for

preliminary approval; (2) dissemination of notice of settlement to all class members; and (3) a final

settlement approval after class members have had the opportunity to be heard regarding the

settlement in which argument concerning the fairness, adequacy, and reasonableness of the

settlement may be presented. See CPLR § 908; see, e.g., Lopez v. Dinex Grp., LLC, No.

155706/14, 2015 N.Y. Slip Op. 31074 (U), at *2-4 (Sup. Ct., N.Y. County 2015); cf. 4 Herbert B.

Newberg & Alba Conte, Newberg on Class Actions § 13.1 (5th ed.) (describing the similar process

under Federal Rule of Civil Procedure 23). This process protects class members’ due process

rights while enabling the Court to safeguard the class members’ interests. See Garcia v. Pancho

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Villa’s of Huntington Vill., Inc., No. 09 Civ. 486, 2012 U.S. Dist. LEXIS 70144, at *11 (E.D.N.Y.

May 21, 2012).

With this Motion, Plaintiffs requests that the Court take the third and final step – granting

final approval of the Settlement Agreement, approving the Representative Plaintiffs Payment and

Class Counsel’s fees and costs, and authorizing the Settlement Administrator to disburse the

settlement fund. Plaintiffs asks the Court to approve the following schedule:

Deadline Date
Deadline for Defendant to deposit the 20 business days after issuance of the Final
Settlement Fund into the QSF Effective Dave. Ex. 1 (Settlement Agreement)
§ 3.1(C) (“Funding Date”)
Deadline for Settlement Administrator to 5 business days after the Funding Date. Id. §
transmit Class Counsel’s Court-approved 3.1(D)
attorneys’ fees and costs
Deadline for Settlement Administrator to 5 business days after the Funding Date. Id. §
transmit Court-approved Representative 3.1(D)
Plaintiffs Payments
Deadline for Settlement Administrator to 15 business days after the Funding Date. Id. §
transmit all payments to Participating New 3.1(D)
York Class and Collective Members
Deadline for Settlement Administrator to 30 days prior to check expiration deadline. Id.
send reminders to Participating Claimants § 3.1(E)
who have not yet cashed their Settlement
Check
Deadline for Participating Claimants to cash 120 days after the date the Settlement Checks
payments are mailed. Id. § 3.1(E)

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

Courts examine “the fairness of the settlement, its adequacy, its reasonableness and the

best interests of the class members.” Fiala v. Metro. Life Ins. Co., Inc., 899 N.Y.S.2d 531, 537

(Sup. Ct., N.Y. County 2010) (collecting cases); accord Klein v. Robert’s Am. Gourmet Food,

Inc., 808 N.Y.S.2d 766, 774 (App. Div. 2d Dep’t 2006). To determine whether to approve a

settlement, courts consider the following factors: (1) the likelihood of success; (2) the support

from the class; (3) the settlement value balanced against the potential recovery, in light of the

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litigation risks; (4) counsel’s judgment; and (5) the issues at stake. See Jiannaras v. Alfant, No.

09 Civ. 21262, 2012 N.Y. Misc. LEXIS 6692, at *10 (Sup. Ct., Queens County, Jan. 10, 2012)

(listing factors) (citations omitted); see also Mancia v. HSBC Secs. (USA) Inc., No. 15 Civ. 9400,

2016 N.Y. Misc. LEXIS 496, at *3-4 (Sup. Ct., Kings County, Feb. 19, 2016) (same).4 These

factors are applied flexibly based on the circumstances of the case and the “strong judicial

policy” favoring class action settlements. Jiannaras, 2012 N.Y. Misc. LEXIS 6692, at *11

(quotation and citations omitted). Here, each factor weighs in favor of settlement approval.

1. Factors 1 & 5: The Likelihood of Success and the Issues at Stake.

Although Plaintiffs believe their case is strong, it is subject to risk. Risks are inherent in

litigation. See Klurfeld v. Equity Enters., Inc., 436 N.Y.S.2d 303, 310 (App. Div. 2d Dep’t 1981)

(“All lawsuits, more or less, present the risk of defeat[.]”). These risks are pronounced in wage

and hour class actions, which are “‘inherently complex’” and often burdened by “‘costs, delays

and multitude of other problems associated with them.’” Johnson v. Brennan, No. 10 Civ. 4712,

U.S. Dist. LEXIS 105775, at *25 (S.D.N.Y. Sept. 16, 2011) (quoting In re Austrian & German

Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000)). These cases “typically involve

complex mixed questions of fact and law” that must be resolved in light of “over [eight] decades

of legal interpretation and administrative rulings.” Barrentine v. Arkansas-Best Freight Sys., Inc.,

4
Courts have also listed as a factor the presence of bargaining in good faith. See Jiannaras, 2012
N.Y. Misc. LEXIS 6692, at *10; Mancia, 2016 N.Y. Misc. LEXIS 496, at *3-4. The Second Circuit
recently held that Rule 23(e)(2) prohibits courts from applying a presumption of fairness to a
settlement agreement based on its negotiation at arm’s length. See Moses v. N.Y. Times Co., 79
F.4th 235, 243 (2d Cir. 2023). Plaintiffs have therefore not relied on the presence of bargaining in
good faith in arguing that the Settlement should be approved. If the Court continues to value this
factor in considering settlement approval, then Plaintiffs posit that Mediator Scheinman’s
brokering of this settlement over multiple mediation sessions further demonstrates that it warrants
Court approval. Swartz Aff. ¶¶ 25-30.

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450 U.S. 728, 743 (1981). Furthermore, “[m]ost class actions are inherently complex and

settlement avoids the costs, delays and multitude of other problems associated with them.” In re

Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000) (citation

omitted). In fact, “if settlement has any purpose at all, it is to avoid a trial on the merits because

of the uncertainty of the outcome.” In re Ira Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y. 1969);

see also Velez v. Majik Cleaning Serv., No. 03 Civ. 8698, 2007 U.S. Dist. LEXIS 46223, at *19

(S.D.N.Y. June 22, 2007) (noting settlement benefits plaintiffs because they will “recover a

monetary award immediately, without having to risk that an outcome unfavorable to the plaintiff

will emerge from a trial”).

Plaintiffs recognize the legal, factual, and procedural obstacles to recovery. Swartz Aff. ¶

36. To fully succeed, Plaintiffs would have to, among other things: (1) defeat Defendants’

arguments that Plaintiffs and Class Members did not work any off the clock hours and were not

subject to common policies, which would require several findings of fact and law in Plaintiffs’

favor; (2) prove the amount of overtime Class Members allegedly worked; (3) prove that

Defendants failed to provide Class Members with proper wage statements and notices that

complied with all applicable laws; (4) succeed in proving there is a private right of action under

NYLL § 191; and (5) succeed in proving that Plaintiffs and class members were “manual workers.”

Id. ¶ 37. Plaintiffs would also have to obtain class certification and maintain a class action through

trial, which is not easy. Id. ¶ 38; see, e.g., Beckman v. KeyBank, N.A., 293 F.R.D. 467, 480

(S.D.N.Y. 2013) (collecting wage and hour cases denying or decertifying class action status).

Plaintiffs would need to achieve all of this in the face of Defendants’ vigorous opposition at each

stage of the proceedings, including class certification (and decertification), dispositive motion

practice, trial, and potential appeals. Swartz Aff. ¶ 39.

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Moreover, if this lawsuit continued, any recovery may not occur for several years. Swartz

Aff. ¶ 40. Despite these risks, this Settlement commits Defendant to pay up to $9,350,000.00 to

compensate the Class and Collective. While Plaintiffs believes that they would ultimately prevail,

the Settlement eliminates these risks and allows Class Members to recover now.

These factors therefore favor approval. See Charles v. Avis Budget Car Rental, LLC, No.

152627/2017, 2017 N.Y. Slip Op. 32644(U), at *4 (Sup. Ct., N.Y. County 2017) (weighing that

“Defendant has and will continue to vigorously contest Plaintiffs[’] claims if the action does not

settle” in favor of settlement); Fernandez v. Legends Hosp., LLC, No. 152208/2014, 2015 N.Y.

Misc. LEXIS 2193, at *4 (Sup. Ct., N.Y. County, June 20, 2015) (same).

Case Info

Judge

Francis Ricigliano Track Judge’s New Case

Case No.

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Document Filed Date

December 21, 2023

Case Filing Date

November 23, 2022

County

Parties

DAVIDSON, JENNIFER MARIE Attorney for the Plaintiff
Duane Reade, Inc. Defendant
EGONU, ELISA CHIKA Attorney for the Defendant
HALE, ASHLEY J Attorney for the Defendant
James Mangan Plaintiff
Kimberly Barner individually and on behalf of all others similarly situated Plaintiff
PALITZ, MICHAEL JOHN Attorney for the Plaintiff
PARLO, CHRISTOPHER A. Attorney for the Defendant
SWARTZ, JUSTIN MITCHELL Attorney for the Plaintiff
Walgreen, Co. Defendant
Walgreen Eastern Co., Inc. Defendant

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Motion-Secondary: James Mangan, Kimberly Barner individually and on behalf of all others similarly situated v. Walgreen Eastern Co., Inc., Walgreen, Co., Duane Reade, Inc.

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Parties