Motion for Modification in Samuel Goldsmith, Christopher Lynch, Andrew Pierce, Oney Temple, Julio Vargas on behalf of themselves, All Others Similarly Situated v. Molo Solutions, Llc., Arcbest Ii, Inc.| Trellis.Law

On April 03, 2024 a Motion-Secondary was filed involving a dispute between All Others Similarly Situated, Andrew Pierce, Christopher Lynch, Julio Vargas On Behalf Of Themselves, Oney Temple, Samuel Goldsmith, and Arcbest Ii, Inc., Molo Solutions, Llc., for Torts - Other (FLSA overtime violations) in the District Court of Suffolk County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------------------------------------------------------------------------- X
SAMUEL GOLDSMITH, CHRISTOPHER LYNCH, :
ANDREW PIERCE, ONEY TEMPLE, and JULIO :
VARGAS, on behalf of themselves and all others similarly :
situated, :
: Index No.: 608373/2024
Plaintiffs, :
:
- against - :
:
MOLO SOLUTIONS, LLC and ARCBEST II, INC., :
:
Defendants. X
---------------------------------------------------------------------------

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

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 1
PROCEDURAL BACKGROUND................................................................................................. 2
I. INVESTIGATION .............................................................................................................. 2
II. SETTLEMENT DISCUSSIONS ........................................................................................ 2
SUMMARY OF THE SETTLEMENT TERMS ............................................................................ 3
I. ELIGIBLE MEMBERS ...................................................................................................... 3
II. THE SETTLEMENT FUND............................................................................................... 4
III. RELEASES ......................................................................................................................... 5
IV. ALLOCATION FORMULA .............................................................................................. 5
V. SETTLEMENT ADMINISTRATOR ................................................................................. 6
VI. PROPOSED NOTICE......................................................................................................... 6
VII. CLASS AND COLLECTIVE ACTION SETTLEMENT PROCEDURE ...................... 7
ARGUMENT .................................................................................................................................. 9
I. SETTLEMENT PROCEDURE .......................................................................................... 9
A. The Proposed Settlement is Fair, Adequate, and Reasonable. ...................................... 10
B. The Proposed Settlement Is the Product of Extensive, Arm’s-Length Negotiations. ... 11
C. The Proposed Settlement Has No Obvious Deficiencies. ............................................. 12
II. CERTIFICATION OF THE SETTLEMENT CLASS IS APPROPRIATE. ..................... 13
A. The Class Certification Statute Should Be Liberally Construed. ................................. 13
B. All Prerequisites of CPLR § 901 Are Satisfied. ........................................................... 14
1. Numerosity: Joinder of All Members Is Impracticable. ........................................... 15
2. Questions of Law and Fact Common to the Class Predominate. .............................. 15
3. Plaintiffs’ Claims Are Typical of the Claims of the Class........................................ 16
4. Plaintiffs Will Fairly and Adequately Protect the Interests of the Class .................. 17
5. A Class Action is Superior to Other Available Methods. ......................................... 18
C. CPLR § 902 Factors Support Provisional Certification of a Settlement Class. ............ 19
III. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL. .......... 20
IV. THE PROPOSED NOTICE IS APPROPRIATE. ............................................................. 20
V. PLAINTIFFS ALSO SEEK APPROVAL OF THE FLSA SETTLEMENT. .................... 21

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CONCLUSION ............................................................................................................................. 22

iii

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TABLE OF AUTHORITIES

Cases Page(s)
Ackerman v. Price Waterhouse,
252 A.D.2d 179 (1st Dep’t 1998) ........................................................................................... 13
Adams v. Bigsbee Enters.,
No. 14 Civ. 3615, 2015 N.Y. Slip Op. 52008(U) (Sup. Ct. Albany Cnty. 2015) ................... 17
Beckman v. KeyBank, N.A.,
293 F.R.D. 467 (S.D.N.Y. 2013) ............................................................................................ 18
Beller v. William Penn Life Ins. Co. of N.Y.,
37 A.D.3d 747 (2d Dep’t 2007) .............................................................................................. 13
Blum v Merrill Lynch & Co.,
Nos. 15 Civ. 1636, 15 Civ. 2960, 2016 U.S. Dist. LEXIS 197385
(S.D.N.Y. May 15, 2017) ....................................................................................................... 18
Borden v. 400 E. 55th St. Assocs., L.P.,
24 N.Y.3d 382 (2014) ....................................................................................................... 15, 19
Caballero v. Senior Health Partners, Inc.,
No. 16 Civ. 326 2018 U.S. Dist. LEXIS 207128 (E.D.N.Y. Dec. 7, 2018) ........................... 10
Capilupi v. People’s United Fin., Inc,
No. 15 Civ. 5247, 2018 U.S. Dist. LEXIS 167550 (E.D.N.Y. Sept. 27, 2018) ...................... 18
Carlin v. Singh Hosp. Grp.,
No. 12 Civ. 14702, 2013 N.Y. Slip Op. 34200(U) (Sup. Ct. Nassau Cnty. 2013) ................. 15
Cherry v. Res. Am., Inc.,
15 A.D.3d 1013 (4th Dep’t 2005) ........................................................................................... 16
City of New York v. Maul,
14 N.Y.3d 499 (2010) ............................................................................................................. 13
Clark v. Ecolab, Inc,
No. 04 Civ. 4488 2009, U.S. Dist. LEXIS 108736 (S.D.N.Y. Nov. 27, 2009) ................. 10-11
Fiala v. Metro. Life Ins. Co., Inc.,
899 N.Y.S.2d 531 (Sup. Ct. N.Y. Cnty. 2010) ....................................................................... 10
Friar v. Vanguard Holding Corp.,
78 A.D.2d 83, 91 (2d Dep’t 1980) ............................................................................................. 16
Galdamez v. Biordi Constr. Corp.,
No. 05 Civ. 107984, 2006 N.Y. Slip Op. 51969(U) (Sup. Ct. N.Y. Cnty. 2006) ............. 17, 19

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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) ............................ 9
Geiger v. Am. Tobacco Co.,
181 Misc. 2d 875 (Sup. Ct. Queens County1999) .................................................................. 16
Gilman v. Merril Lynch, Pierce, Fenner & Smith,
404 N.Y.S.2d 258 (Sup. Ct. N.Y. Cnty. 1978) ....................................................................... 20
In re Initial Pub. Offering Sec. Litig.,
226 F.R.D 186 (S.D.N.Y. 2005) ............................................................................................. 11
In re Traffic Exec. Ass’n-E. R.Rs.,
627 F.2d 631 (2d Cir. 1980) ................................................................................................... 10
Indergit v. Rite Aid Corp.,
293 F.R.D. 632 (S.D.N.Y. 2013) ............................................................................................ 19
Isufi v. Prometal Const., Inc.,
No. 12 Civ. 653265, 2017 N.Y. Slip Op. 30643(U) (Sup. Ct. N.Y. Cnty. 2017) ................... 14
Jiannaras v. Alfant,
No. 09 Civ. 21262, 2012 N.Y. Misc. LEXIS 6692 (Sup. Ct. Queens Cnty. Apr. 6, 2011) .... 10
Kehn v. Plainview Hosp., LLC,
No. 12 Civ. 9866, 2014 N.Y. Slip Op. 33985(U) (Sup. Ct. Nassau Cnty. 2014) ................... 14
Klein v. Robert’s Am. Gourmet Food, Inc.,
28 A.D.3d 63 (2nd Dep’t 2006) ........................................................................................ 10, 11
Kolb v. Bankers Conseco Life Ins. Co.,
No. 13 Civ. 5116, 2014 N.Y. Slip Op. 33984(U) (Sup. Ct. Nassau Cnty. 2014) ................... 14
Krebs v. Canyon Club, Inc.,
22 Misc.3d 1125(A), 2009 N.Y. Slip Op. 50291(U) (Sup. Ct.
Westchester Cnty. 2009) ................................................................................................. passim
Long v. HSBC USA Inc.,
No. 14 Civ. 6233, 2015 U.S. Dist. LEXIS 122655 (S.D.N.Y. Sept. 11, 2015) ...................... 21
Lopez v. Dinex Grp., LLC, ,
No. 14 Civ. 155706, 2015 N.Y. Slip Op. 31074(U) (Sup. Ct. N.Y. Cnty. 2015) ..................... 9
Macaluso v. Woodbury Int’l, Inc.,
No. 12 Civ. 3216 2013, N.Y. Slip Op. 34211 (Sup. Ct. Nassau Cnty. 2013) ........................ 14
Nawrocki v. Proto Constr. & Dev. Corp.,
82 A.D.3d 534 (1st Dep’t 2011) ............................................................................................. 19

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Pajaczek v. CEMA Const.,
18 Misc. 3d 1140(A), 2008 N.Y. Slip. Op. 50386(U) (Sup.
Ct. N.Y. Cnty. 2008) ................................................................................................... 16, 17, 19
Pesantez v. Boyle Envtl. Servs., Inc.,
251 A.D.2d 11 (1st Dep’t 1998) ................................................................................. 14, 16, 19
Piccolo v. Top Shelf Provisions, Co. Inc.,
No. 16 Civ. 6930, 2019 U.S. Dist. LEXIS 132695 (E.D.N.Y. Aug. 7, 2019) ........................ 12
Pludeman v. N. Leasing Sys., Inc.,
74 A.D.3d 420 (1st Dep’t 2010) ............................................................................................. 13
Pruitt v. Rockefeller Ctr. Props.,
167 A.D.2d 14 (1st Dep’t 1991) ............................................................................................. 14
Reyes v. 600 W. 169th Rest., Inc.,
No. 16. Civ. 159303, 2018 N.Y. Slip Op. 32730 (Sup. Ct. N.Y. Cnty. 2018) ....................... 11
Reyes v. Altamarea Grp., LLC,
No. 10 Civ. 6451, 2011 U.S. Dist. LEXIS 115984 (S.D.N.Y. Aug. 16, 2011) ...................... 12
Schriver v. Golden Corral Corp.,
No. 17 Civ. 136, 2017 U.S. Dist. LEXIS 204372 (N.D. Ohio Dec. 11, 2017) ....................... 13
Stecko v. RLI Ins. Co.,
121 A.D.3d 542 (1st Dep’t 2014) ................................................................................ 14, 16, 19
Sukhnandan v. Royal Health Care of Long Island LLC,
No. 12 Civ. 4216, 2014 U.S. Dist. LEXIS 105596 (S.D.N.Y. July 31, 2014) ....................... 21
Weinstein v. Jenny Craig Operations, Inc.,
No. 11 Civ. 105520, 2013 N.Y. Slip Op. 51783(U) (Sup. Ct. N.Y. Cnty. 2013) ....... 15, 16, 17
Yim v. Carey Limousine NY, Inc.,
No. 14 Civ. 5883, 2016 U.S. Dist. LEXIS 47134 (E.D.N.Y. Mar. 31, 2016) ........................ 11

Statutes
CPLR 104 ..................................................................................................................................... 13
CPLR § 902 .................................................................................................................................. 20

Other Authorities
Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”), § 13.1 (5th ed.) ...9
Manual for Complex Litigation (Fourth) § 21.632 at 320 (2004). ............................................... 10

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PRELIMINARY STATEMENT

Plaintiffs Samuel Goldsmith, Christopher Lynch, Andrew Pierce, Oney Temple, Jr., and

Julio Vargas (collectively, “Plaintiffs”) and Defendants MoLo Solutions, LLC and ArcBest II, Inc.

(“Defendants”) have settled this class and collective action subject to Court approval. The

proposed Settlement satisfies all the criteria for preliminary settlement approval. Accordingly,

Plaintiffs respectfully request that the Court: (1) grant preliminary approval of the Settlement

Agreement and Release (“Agreement”);1 (2) provisionally certify the proposed Class under Article

9 of the New York Civil Practice Law and Rules (“CPLR”), for settlement purposes only; (3)

conditionally certify the proposed Collective (as defined below) pursuant to 29 U.S.C. §216(b), for

settlement purposes only; (4) appoint Outten & Golden LLP (“O&G”) and Misiano, Serio &

Associates, PLLC as Class Counsel, for settlement purposes only; (5) appoint ILYM Group, Inc.

(“ILYM”) as the Settlement Administrator; (6) approve the Notice and direct its distribution; and

(7) enter the Proposed Order Granting Preliminary Approval.

FACTUAL BACKGROUND

Plaintiffs brought this action on behalf of themselves and similarly situated employees who

worked as Logistics Employees, alleging, among other things, that Logistics Employees should

have been classified as non-exempt, overtime-eligible employees and, as a result, did not receive

overtime pay in violation of the Fair Labor Standards Act (“FLSA”) and Illinois Law. See

Goldsmith et al. v. MoLo Solutions, LLC et al., No. 608373/2024 (N.Y. Sup. Ct. April 3, 2024)

NYSCEF No. 1 ¶¶ 1-8 (hereinafter “Compl.”). The negotiated Total Settlement Amount of Nine

1
The Agreement is attached as Exhibit 1 to the Affirmation of Melissa L. Stewart in Support
of Plaintiffs’ Motion for Preliminary Settlement Approval (“Stewart Aff.”). Unless otherwise
indicated, all exhibits hereto are attached to the Stewart Aff. All capitalized terms utilized in this
Motion are defined herein and/or in the Agreement.

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Million Five Hundred Thousand Dollars ($9,500,000) is a fair compromise that easily falls within

the range of reasonableness.

PROCEDURAL BACKGROUND

I. INVESTIGATION

Before initiating this action, the undersigned counsel (“Plaintiffs’ Counsel”) conducted a

thorough investigation which included corporate research regarding Defendants’ business

locations, corporate ownership, past federal and state litigation, as well as factual and legal

research into the underlying merits of Plaintiffs’ claims, possible defenses, the proper measure of

damages, and the likelihood of class and collective certification. Stewart Aff. ¶ 12. Plaintiffs’

Counsel also conducted in-depth interviews with the five Plaintiffs and numerous other similarly

situated Logistics Employees. Id. ¶ 13. These interviews helped Plaintiffs’ Counsel determine

the hours that Plaintiffs worked, the nature of their duties, and Defendants’ policies as they relate

to Logistics Employees. Id. ¶ 14. Plaintiffs’ Counsel also reviewed employment documents,

including handbooks, compensation plans, offer letters, and job descriptions. Id. ¶ 15.

II. SETTLEMENT DISCUSSIONS

On April 7, 2023, Plaintiffs’ Counsel sent a letter to Defendants outlining their FLSA and

state law claims and inviting Defendants to engage in pre-litigation settlement discussions on

behalf of the class of similarly situated employees. Id. ¶ 16. After Defendants reviewed the

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

alleged claims and, on May 1, 2023, the Parties entered into an agreement that tolled the statute

of limitations applicable to Logistics Employees’ claims. Id. ¶ 17. The Parties further agreed to

an exchange of information and payroll data to facilitate settlement discussions. Id. ¶ 18.

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The Parties subsequently agreed to participate in mediation with Martin F. Scheinman, an

experienced mediator. Stewart Aff. ¶ 19. Plaintiffs’ Counsel evaluated the claims and

Defendants’ defenses based on the payroll data produced by Defendants, as well as Plaintiffs’

own investigation. Id. ¶ 20. Plaintiffs also used Defendants’ data to calculate estimated damages

on a class-wide basis. Id. ¶ 21. Prior to the mediation, Plaintiffs submitted a detailed mediation

statement to Mr. Scheinman and to Defendants’ counsel. Id. ¶ 22.

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

November 27, 2023 and accepted a mediator’s proposal for a settlement in principle. Id. ¶ 23.

After additional discussions, the Parties memorialized the settlement in a term sheet executed on

February 1, 2024. Id. ¶ 24. Over the next month, the Parties continued negotiating the terms of

the finalized Agreement, which was fully executed on March 29, 2024. Id. ¶ 25. At all times,

settlement negotiations were conducted on an arm’s-length basis. Id. ¶ 26.

On April 3, 2024, Plaintiffs filed the instant matter seeking unpaid wages and related

relief on behalf of Logistics Employees pursuant to federal and state law. See Compl.

SUMMARY OF THE SETTLEMENT TERMS

I. ELIGIBLE MEMBERS

The Settlement Class or Settlement Class Members means the 1,099 Class Members and

Putative Collective Members, as reflected in the pre-mediation data Defendants’ Counsel produced

to Plaintiffs’ Counsel prior to mediation, employed by Defendants as exempt-classified Business

Development Representatives, Business Development Leads, National Account Managers, Carrier

Sales Representatives, National Carrier Sales, Representatives, Senior Carrier Sales

Representatives, Carrier Sales Specialists, Customer Account Managers, Customer Account

Representatives, Customer Operations Representatives, Customer Operations Specialists,

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Customer Operations Leads, and Critical Freight Sales Representatives (“Logistics Employees”).

Ex. 1 (Agreement) §§ 1.5, 1.22, 1.36, 1.47.

The Class or Class Members means the 547 exempt-classified Logistics Employees

employed by Defendants in Illinois during the period from May 1, 2020 to June 10, 2023. Id. §

1.5. The Collective or Putative Collective Members means the 552 exempt-classified Logistics

Employees employed by Defendants nationwide, except in Illinois, from May 1, 2020 to June 10,

2023. Id. § 1.36.

II. THE SETTLEMENT FUND

Defendants have agreed to pay up to Nine Million Five Hundred Thousand Dollars

($9,500,000) (the “Total Settlement Amount”), which will be used to pay: (1) all Settlement

Checks or Electronic Payments to Participating Class and Participating Collective Members (id.

§§ 1.14, 1.45); (2) Service Awards of up to Twelve Thousand and Five-Hundred Dollars

($12,500) to each of the Plaintiffs (id. § 1.42); (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. § 1.2); and (4) the Settlement Administrator’s fees and costs (id. § 1.48). The

Employer Payroll Taxes will be paid by Defendants separately from and in addition to the Total

Settlement Amount. Id. § 1.48.2

2
Any Settlement Checks issued to Participating Class Members that are not cashed shall
be remitted to the Illinois unclaimed property fund in the Participating Class Member’s name.
Ex. 1 (Agreement) § 9.2(a). Any Settlement Checks issued to Putative Collective Members that
are not cashed will remit to Defendants. Id. § 9.2(b).

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III. RELEASES

Class Members who do not timely submit an Opt-Out Statement will release the Released

Class Claims.3 Id. § 10.2. Participating Collective Members, and those Participating Class

Members who timely cash their Settlement Checks or timely elect to receive Electronic Payment,

will release the Released Collective Claims.4 Id. § 10.1. Additionally, in consideration of the

Service Awards, Plaintiffs will execute and agree to a general release. Id. §§ 9.4(c), 10.3.

IV. ALLOCATION FORMULA

The Settlement Administrator will determine the Settlement Amounts for each Settlement

Class Member which allocates each Settlement Class Member’s share based on the number of

Eligible Workweeks worked during the Collective Period and/or Class Period. Id. §§ 1.15, 9.5.

To calculate each Class Member’s proportionate amount, the Settlement Administrator will: (1)

Add all points for all Settlement Class Members together to obtain the “Denominator” (2) divide

the number of points for each Settlement Class Member by the Denominator to obtain each

Settlement Class Member’s “Portion of the Net Settlement Fund” and (3) multiply each

Settlement Class Member’s Portion of the Net Settlement Fund by the sum of the Net Fund to

3
Released Class Claims means any and all Illinois wage and hour claims pled in the
operative Complaint or that could have been pled based on the facts alleged in the operative
Complaint, and that accrued during employment as exempt-classified Logistics Employees,
relating back to the full extent of the applicable statutes of limitations, including any period
tolled by the parties’ May 1, 2023 tolling agreement, and continuing through December 31,
2023, including, without limitations, claims for unpaid overtime wages and related claims for
penalties, interest, liquidated damages (including treble damages), attorneys’ fees, costs, and
expenses. Id. § 1.38.
4
Released Collective Claims means any and all wage and hour claims pled in the operative
Complaint, or that could have been pled based on the facts alleged in the operative Complaint,
and that accrued during employment as exempt-classified Logistics Employees, relating back to
the full extent of the statutes of limitations, including any period tolled by the parties’ May 1,
2023 tolling agreement, and continuing through December 31, 2023, including, without
limitations, state and federal claims for unpaid overtime wages and related claims for penalties,
interest, liquidated damages, attorneys’ fees, costs, and expenses. Id. § 1.39.

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determine each Settlement Class Member’s Settlement Amount. Id. § 9.5(b). Putative

Collective Members will receive one (1) point for each Eligible Workweek during the Collective

Period, and Class Members will receive two (2) points for each Eligible Workweek during the

Class Period. Id. § 9.5(a).

V. SETTLEMENT ADMINISTRATOR

The Parties have selected ILYM Group, Inc. to serve as the Settlement Administrator

following a competitive bidding process. Stewart Aff. ¶ 27. ILYM’s fees and costs in this

matter shall be paid from the Total Settlement Amount. Ex. 1 (Agreement) § 1.48.

VI. PROPOSED NOTICE

The Notice will include a description of the claims and this Agreement, the Settlement

Class Member’s Work Dates, information about how to dispute Work Dates, the estimated

amount of each Settlement Class Member’s Settlement Amount, and the opportunity (and

consequences) of objecting or opting out (for Class Members) or participating by either electing

Electronic Payment or endorsing and cashing a Settlement Check (for Participating Class

Members and Putative Collective Members), and/or to appear at the Fairness Hearing, as

applicable. Id. §§ 1.24, 4.2. The Notice will advise Settlement Class Members of a website

where they can review information regarding the settlement and elect Electronic Payment. Id. §

4.2.

The Settlement Administrator will send to all Settlement Class Members the court-

approved Notice via First class U.S. Mail, e-mail, and text message, with a link and/or QR code

to the settlement website. Id. § 4.3. In the event that a Notice is returned as undeliverable, the

Settlement Administrator shall attempt to obtain a correct address, including by tracing any

Notices returned undeliverable by mail, email, or text up to two times to obtain a new mailing

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address, email address, or phone number and resending the Notices by First Class U.S. Mail

and/or other relevant means, provided that no remailing takes place after the 60th day after the

initial mailing is sent out. Id. § 4.4. The Settlement Administrator shall also mail or email a

Notice to any Settlement Class Member who contacts the Settlement Administrator or Plaintiffs’

Counsel during the period between the initial mailing of the Notice and the Bar Date and

requests a Notice. Id.

VII. CLASS AND COLLECTIVE ACTION SETTLEMENT PROCEDURE

The Parties respectfully submit the following proposed schedule for final resolution of

this matter for the Court’s consideration and approval:

1. Within seven (7) Days of the Preliminary Approval Order, Defendants’ Counsel
shall provide the Settlement Administrator and Plaintiffs’ Counsel with the Class
List; provided, however, that the Class List provided to Plaintiffs’ Counsel will not
include the Settlement Class Members’ social security numbers, and the Settlement
Administrator shall not share the social security numbers with Plaintiffs’ Counsel.
Ex. 1 (Agreement) § 4.1.

2. Within twenty-one (21) Days of the Preliminary Approval Order, the Settlement
Administrator shall send to all Settlement Class Members the Court-approved Notice
via First class U.S. Mail, e-mail, and text message, with a link and/or QR code to the
website. Id. § 4.3.

3. The Settlement Administrator shall use all reasonable means to confirm Settlement
Class Members’ addresses and obtain new addresses, as necessary. In the event
that a Notice is returned as undeliverable, the Settlement Administrator shall
attempt to obtain a correct address, including by tracing any Notices returned
undeliverable by mail, email, or text up to two times to obtain a new mailing
address, email address, or phone number and resending the Notices by First Class
U.S. Mail and/or other relevant means, provided that no remailing takes place after
the 60th day after the initial mailing is sent out. Id. § 4.4.

4. At the Fairness Hearing, Plaintiffs shall request that the Court enter an Order
Granting Final Approval in accordance with the Agreement, including: (1) finally
certify the Class and Collective for purposes of settlement only; (2) approve the
Settlement and this Agreement as fair, reasonable, adequate, and binding on all
Participating Class Members and Participating Collective Members; (3) order the
Settlement Administrator to distribute Electronic Payments to Participating Class
Members and Participating Collective Members who timely elected Electronic

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Payment and to distribute Settlement Checks to all other Participating Class
Members and Putative Collective Members; (4) order Service Awards, Attorneys’
Fees and Costs, and settlement administration to be paid from the QSF; (5) order
dismissal with prejudice of all Released Class Claims asserted in the Complaint, as
set forth herein; (6) order entry of the Final Approval Order, in accordance with
this Agreement; and (7) retain jurisdiction over the interpretation, implementation,
and enforcement of this Agreement as well as any and all matters arising out of, or
related to, the interpretation or implementation or enforcement of this Agreement
and of the settlement contemplated hereby. Id. § 7.2.

5. The Effective Date means the date that the Court’s Final Approval Order becomes
final and unappealable. Id. at § 1.13.

6. On or before the Funding Date (seven (7) days after the Effective Date), Defendants
shall pay the Total Settlement Amount (less the Settlement Amounts allocated to
Class Members who do not become Participating Class Members) into the QSF
established by the Settlement Administrator. Id. § 9.1(b).

7. Fourteen (14) Days after the Funding Date, the Settlement Administrator will issue
Electronic Payments to Participating Class Members and Participating Collective
Members who timely elected the Electronic Payment and mail Settlement Checks
to all other Participating Class Members and Putative Collective Members. Seven
(7) Days after the Funding Date, the Settlement Administrator will wire Court-
approved Attorneys’ Fees and Costs to Plaintiffs’ Counsel; and the Settlement
Administrator will mail the Service Awards to Plaintiffs. Id. § 9.7.

8. Participating Class Members and Putative Collective Members who did not timely
elect the Electronic Payment option and who will therefore receive Settlement
Checks will have one hundred twenty (120) calendar days from the date that
Settlement Checks are mailed to cash, deposit, deposit, or otherwise negotiate their
checks. Id. § 9.8(a).

9. The Settlement Administrator will send Reminders thirty (30) Days, sixty (60)
Days, and ninety (90) Days after the issuance of checks via First Class U.S. Mail,
e-mail, and text message to Participating Class Members and Putative Collective
Members who have not yet cashed their Settlement Checks or received Electronic
Payment, reminding them to cash their checks. After sixty (60) Days from the
issuance of the Settlement Checks, the Settlement Administrator shall provide a
report of any uncashed checks sent to Participating Class Members and Putative
Collective Members to the Parties’ counsel. To the extent any mailed Settlement
Check is returned as undeliverable, the Settlement Administrator shall attempt re-
mailings to Participating Class Members and Putative Collective Members for
whom it obtains a more recent address, provided that no remailing takes place after
the 120th Day. Id. § 9.8(b).

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10. Any Settlement Checks issued to Participating Class Members that are not cashed
before the expiration of the Check Cashing Period shall be cancelled by the
Settlement Administrator within fourteen (14) Days after the Check Cashing Period
expires, and the Settlement Administrator shall promptly remit the amounts
covered by such Settlement Checks to the Illinois unclaimed property fund in the
applicable Participating Class Member’s name. Any Settlement Checks issued to
Putative Collective Members that are not cashed before the expiration of the Check
Cashing Period shall be canceled by the Settlement Administrator within fourteen
(14) Days after the Check Cashing Period expires, and the Settlement Administrator
shall promptly remit the amounts covered by such Settlement Checks to
Defendants, along with the Employer Payroll Taxes previously paid into the QSF
with respect to such Settlement Checks. Id. § 9.2.

ARGUMENT

I. SETTLEMENT PROCEDURE

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

written motion for preliminary approval;

2. Dissemination of notice of settlement to all class members; and

3. A final settlement approval hearing at which class members may be heard regarding the

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

settlement may be presented.

Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”), § 13.1 (5th ed.); see,

e.g., Lopez v. Dinex Grp., LLC, No. 14 Civ. 155706, 2015 N.Y. Slip Op. 31074(U), *3 (Sup. Ct.

N.Y. Cnty. 2015). This process protects the class members’ due process rights and enables the

Court to safeguard the class members’ interests. See Garcia v. Pancho 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 request that the Court take the first step: provisionally certifying

the Class for settlement purposes only, conditionally certifying the Collective for settlement

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purposes only, granting preliminary approval of the Agreement, approving the proposed Notice, and

authorizing the Settlement Administrator to distribute the Notice.

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

In reviewing a motion for preliminary approval, 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. Cnty. 2010). This analysis is

made in light of the “strong judicial policy” favoring the settlement of class action suits.

Jiannaras v. Alfant, No. 09 Civ. 21262, 2012 N.Y. Misc. LEXIS 6692, at *11 (Sup. Ct. Queens

Cnty. Apr. 6, 2011) (internal quotation marks omitted); see Caballero v. Senior Health Partners,

Inc., No. 16 Civ. 326, 2018 U.S. Dist. LEXIS 207128, at *9 (E.D.N.Y. Dec. 7, 2018). Courts

refer to New York and federal precedent in making this determination, given that the two statutory

schemes are similar. See, e.g., Fiala, 899 N.Y.S.2d at 537 (collecting cases); Klein v. Robert’s Am.

Gourmet Food, Inc., 28 A.D.3d 63, 73 (2nd Dep’t 2006) (relying on federal authority to assess

reasonableness of settlement).

At this first step in the settlement approval process, the parties “submit the proposed

terms of settlement and the judge makes a preliminary fairness evaluation.” Manual for

Complex Litigation (Fourth) § 21.632 at 320 (2004). The Court need only find that there is

“‘probable cause’ to submit the [settlement] to class members and hold a full-scale hearing as to

its fairness.” In re Traffic Exec. Ass’n-E. R.Rs., 627 F.2d 631, 634 (2d Cir. 1980); see Newberg,

§ 13:10 (“[I]f a court’s preliminary evaluation of the proposed settlement showed that it [is

neither illegal nor collusive and is within the range of possible approval], the court would direct

that notice of the settlement be given to the class members[.]”).

After the notice period, the Court will evaluate the settlement with the benefit of the class

members’ input. Clark v. Ecolab, Inc., No. 04 Civ. 4488, 2009 U.S. Dist. LEXIS 108736, at *14

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(S.D.N.Y. Nov. 27, 2009) (preliminary approval “simply allows notice to issue to the class and

for class members to object to or opt-out of the settlement”).

Preliminary approval is subject to a less rigorous standard than final approval. At the final

approval stage, the Court “balanc[es] the value of that settlement against the present value of the

anticipated recovery following a trial on the merits, discounted for the inherent risks of litigation.”

Klein, 28 A.D.3d at 73. Preliminary approval, however, is granted “[w]here the proposed

settlement appears to be the product of serious, informed, non-collusive negotiations, has no

obvious deficiencies, does not improperly grant preferential treatment to class representatives or

segments of the class and falls within the range of possible approval[.]” In re Initial Pub.

Offering Sec. Litig., 226 F.R.D 186, 191 (S.D.N.Y. 2005) (internal quotation marks omitted); see

also Reyes v. 600 W. 169th Rest., Inc., No. 16. Civ. 159303, 2018 N.Y. Slip Op. 32730, at *1 (Sup.

Ct. N.Y. Cnty. 2018) (granting preliminary approval where settlement was “the result of extensive,

arm’s length negotiations by counsel well-versed in the prosecution of wage and hour class and

collective actions, and [ ] the proposed settlement has no obvious deficiencies”); Yim v. Carey

Limousine NY, Inc., No. 14 Civ. 5883, 2016 U.S. Dist. LEXIS 47134, at *9 (E.D.N.Y. Mar. 31,

2016) (“Preliminary approval of settlements should be given if the settlement is the result of

serious, informed and non-collusive negotiations and the proposed settlement has no obvious

deficiencies[.]” (internal quotation marks omitted)).

B. The Proposed Settlement Is the Product of Extensive, Arm’s-Length
Negotiations.

This Settlement is the result of extensive, arm’s-length negotiations. Stewart Aff. ¶ 28.

As discussed above, the Parties exchanged substantial pre-litigation discovery relating to liability

and damages. Id. ¶ 29. Subsequently, Plaintiffs’ Counsel created a detailed damages model based

on the data provided by Defendants. Id. ¶ 30. In addition, the Parties engaged in vigorous

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settlement negotiations, which included attending a full-day, class-wide mediation before Martin F.

Scheinman, an experienced wage and hour and class and collective action mediator. Id. ¶ 31. That

the Settlement was reached with the expert assistance of Mr. Scheinman demonstrates that it is a

product of arm’s-length negotiations. See Reyes v. Altamarea Grp., LLC, No. 10 Civ. 6451, 2011

U.S. Dist. LEXIS 115984, at *11 (S.D.N.Y. Aug. 16, 2011) (finding class and collective

settlement reached with mediator indicative of arm’s length negotiation and complying with due

process). These negotiations were c

Case Info

Judge

Alison J. Napolitano Track Judge’s New Case

Case No.

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Document Filed Date

April 10, 2024

Case Filing Date

April 03, 2024

County

Parties

all others similarly situated Plaintiff
Andrew Pierce Plaintiff
ArcBest II, Inc. Defendant
Christopher Lynch Plaintiff
Julio Vargas on behalf of themselves Plaintiff
LIU, THEANNE YANG Attorney for the Plaintiff
MISIANO, JAMES FRANK Attorney for the Plaintiff
MoLo Solutions, LLC. Defendant
Oney Temple Plaintiff
SALTARELLI, JOSEPH J Attorney for the Defendant
Samuel Goldsmith Plaintiff
STEWART, MELISSA LARDO Attorney for the Plaintiff

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Motion-Secondary: Samuel Goldsmith, Christopher Lynch, Andrew Pierce, Oney Temple, Julio Vargas on behalf of themselves, All Others Similarly Situated v. Molo Solutions, Llc., Arcbest Ii, Inc.

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