Preview
FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
VINCENT SETTECASI and xxxxxxxx xxxx;
Index No.: 154038/2018
individually and on behalf of others similarly situated,
Plaintiffs,
- against -
ARK RESTAURANTS CORP.; ARK BRYANT PARK
LLC; ARK BRYANT PARK SOUTHWEST, LLC;
MICHAEL WEINSTEIN; and
any other related entities,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
LEEDS BROWN LAW, P.C.
Michael A. Tompkins, Esq.
Anthony M. Alesandro, Esq.
One Old Country Road, Suite 347
Carle Place, New York 11514
Attorneys for Plaintiff & the Settlement Class
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
SETTLEMENT & LITIGATION HISTORY ................................................................................ 3
A. Overview and Procedural History ................................................................................ 3
B. Settlement Negotiation Process .................................................................................... 4
C. The Proposed Settlement Agreement ........................................................................... 5
ARGUMENT .................................................................................................................................. 6
I. THE COURT SHOULD UTILIZE THE TWO-STEP PROCESS FOR APPROVING THE
SETTLEMENT ................................................................................................................... 6
II. THE PROPOSED SETTLEMENT AGREEMENT PROVIDES “PROBABLE CAUSE”
FOR PRELIMINARY APPROVAL .................................................................................. 7
A. The Settlement is Fair and Reasonable......................................................................... 7
B. Courts Routinely Approve Similar Settlements ......................................................... 13
III. CLASS CERTIFICATION SHOULD BE GRANTED ..................................................... 14
CONCLUSION ............................................................................................................................. 22
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Table of Authorities
Cases
Contreras v. Yonkers Racing Corp.,
No. 67170/2018, 2020 N.Y. Misc. LEXIS 1226 (N.Y. Sup. Ct. Mar. 16, 2020) .................................. 4
Davis v. J.P. Morgan Chase & Co. ,
827 F. Supp. 2d 172 (W.D.N.Y. 2011) ...............................................................................................
12
deMunecas v. Bold Food, L.L.C.,
No. 09 Civ. 00440 (DAB), 2010 WL 3322580 (S.D.N.Y. Aug. 23, 2010) ......................................... 12
Fernandez v. Hospitality,
No. 152208/2014, 2015 N.Y. Misc. LEXIS 2193 (N.Y. Sup. Ct. June 20, 2015) ..............................
13
Fiala v. Metro. Life Ins. Co.,
27 Misc. 3d 599 (N.Y. Sup. Ct. 2010) ..................................................................................................
8
In re Gilat Satellite Networks, Ltd.,
No. CV-02-1510 (CPS), 2007 U.S. Dist. LEXIS 29062, 2007 WL 1191048 ....................................... 7
In re Penthouse Exec. Club Comp. Litig.,
No. 10 Civ. 1145 (KMW), 2013 U.S. Dist. LEXIS 63065 (S.D.N.Y. Apr. 29, 2013) .......................... 7
In re Penthouse Exec. Club Comp. Litig.,
No. 10 Civ. 1145 (KMW), 2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014) ............................. 6
In re Take Two Interactive Secs. Litig.,
No. 06 Civ. 1733 (RJS), 2010 U.S. Dist. LEXIS 143837 (S.D.N.Y. June 29, 2010) ...........................
7
Kelen v. World Fin. Network Nat’l Bank,
No. 12-CV-9418 (VSB), 2014 U.S. Dist. LEXIS 112079 (S.D.N.Y. July 28, 2014) ...........................
8
Lopez v. Dinex Grp.,
No. 155706/2014, 2015 N.Y. Misc. LEXIS 2192 (N.Y. Sup. Ct. June 23, 2015) ................................
6
Lovaglio v. W & E Hosp., Inc. ,
No. 10 CIV 7351 (LLS), 2012 WL 2775019 (S.D.N.Y. July 5, 2012) ...............................................
11
Martin v. Rest. Assoc. Events Corp.,
35 Misc. 3d 215, 937 N.Y.S.2d 556 (N.Y. Sup. Ct. Jan. 7, 2012) ..................................................... 2-3
McMahon v. Olivier Cheng Catering & Events, L.L.C. ,
No. 08 Civ. 8713 (PGG), 2010 U.S. Dist. LEXIS 18913 (S.D.N.Y. Mar. 2, 2010) ...........................
13
McReynolds v. Richards-Cantave,
588 F.3d 790 (2d Cir. 2009) ..................................................................................................................
8
Mohney v. Shelly's Prime Steak, Stone Crab & Oyster Bar ,
No. 06 Civ. 4270 (PAC), 2009 U.S. Dist. LEXIS 27899 (S.D.N.Y. Mar. 31, 2009) .......................... 12
Montero v. 333 Bayville Ave. Rest. Corp., Index No. 603760/2017
(Sup. Ct. Nassau Cty. Oct. 10 2018) ...................................................................................................
13
ii
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Ramirez v. Lovin' Oven Catering Suffolk, Inc.,
No. 11 Civ. 0520 (JGK) (JLC), 2011 U.S. Dist. LEXIS 138475 (S.D.N.Y. Oct. 27, 2011) ............... 13
Ramirez v. Mansions Catering, Inc.,
74 A.D.3d 490 (1st Dep’t 2010) ............................................................................................................
2
Samiento v. World Yacht Inc.,
10 N.Y.3d 70 (2008) .............................................................................................................................
2
Sewell v. Bovis Lend Lease LMB, Inc.,
No. 09 Civ. 6548 (RLE), 2012 WL 1320124 (S.D.N.Y. Apr. 16, 2012) ............................................
11
Slobodan Karic v. Major Auto. Cos.,
No. 09 CV 5708 (ENV), 2015 U.S. Dist. LEXIS 171730 (E.D.N.Y. Dec. 22, 2015) ..........................
7
Spicer v. Pier Sixty L.L.C.,
No. 08 Civ. 10240 (PAE), 2012 U.S. Dist. LEXIS 137409 (S.D.N.Y. Sept. 14, 2012) .....................
13
Tamburino v. Madison Sq. Garden, LP,
115 A.D.3d 217 (1st Dep’t 2014) ..........................................................................................................
3
Tart v. Lions Gate Ent. Corp.,
No. 14-CV-8004 (AJN), 2015 U.S. Dist. LEXIS 139266 (S.D.N.Y. Oct. 13, 2015) ........................ 7, 9
Toure v. Amerigroup Corp.,
No. 10 Civ. 5391 (RLM), 2012 U.S. Dist. LEXIS 110300 (E.D.N.Y. Aug. 6, 2012) ........................
12
Toure v. Amerigroup Corp.,
No. 10 Civ. 5391 (RLM), 2012 WL 3240461 (E.D.N.Y. Aug. 6, 2012) ............................................
11
Willix v. Healthfirst, Inc.,
No. 07 Civ. 1143 (ENV)(RER), 2011 U.S. Dist. LEXIS 21102 (E.D.N.Y. Feb. 18, 2011) ...............
12
Statutes
N.Y. C.P.L.R. 901, 902 .........................................................................................................................
3, 14
N.Y. C.P.L.R. 908 .......................................................................................................................................
6
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Plaintiffs respectfully submit this memorandum of law in support of their unopposed
motion for preliminary approval of the proposed class action settlement. For settlement purposes
only, Defendants do not oppose Plaintiffs’ motion. Plaintiffs seek an order pursuant to Article 9 of
the New York Civil Practice Law and Rules (“CPLR”) granting: (1) preliminary approval of the
proposed settlement as set forth in the proposed Settlement Agreement and Release
(“Agreement”); (2) certification of the proposed Settlement Class for settlement purposes only;
(3) appointment of Leeds Brown Law, P.C. as Class Counsel; (4) authorization to
publish/distribute the proposed Notice of Proposed Class Action Settlement (“Notice”) and Claim
Form to Receive a Portion of the Settlement Funds and Release (“Claim Form”); (5) approval of
the procedures for implementing the Agreement; and (6) any other relief this Court deems just and
proper.
PRELIMINARY STATEMENT
This action was brought by Named Plaintiffs VINCENT SETTECASI and xxxxxxxx
xxxx (“the Named Plaintiffs”), on behalf of themselves and a putative class of individuals
(“Class Members”, who, collectively with the Named Plaintiffs, are “Plaintiffs”), against Ark
Restaurants Corp.; Ark Bryant Park LLC; Ark Bryant Park Southwest, LLC; Michael Weinstein;
Robert J. Stewart 1 ; and any other related entities, (collectively, “Defendants”). Plaintiffs are
alleged to have generally performed service work at Ark Restaurants Corp.’s catered events held
in the State of New York on or off Ark Restaurants Corp.’s premises either as employees of Ark
Restaurants Corp. or through third-party staffing agencies from May 2012 through the date the
Class List is provided to the Settlement Claims Administrator in such trades, classifications,
positions, jobs, and professions that customarily receive gratuities, including but not limited to
1
Mr. Stewart passed away in July 2018 and has been removed as a defendant from this matter.
1
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wait staff, waiters, servers, captains, bussers, bartenders, bathroom attendants, and coat check
attendants . 2 This memorandum of law is submitted in support of a proposed settlement on behalf
of a “Class” or “Settlement Class” defined as:
All individuals employed, used or engaged by Ark Restaurants Corp., from May
1, 2012 through the date the Class List is provided to the Settlement Claims
Administrator, who performed work at Ark Restaurants Corp.’s catered events
held on or off Ark Restaurants Corp.’s premises, in such trades, classifications,
positions, jobs, and professions that customarily receive gratuities, including
but not limited to wait staff, waiters, servers, captains, bussers, bartenders,
bathroom attendants, and coat check attendants. Individuals who performed
work at Ark Restaurants Corp. in these or similar positions but were supplied
and/or paid by third-party staffing agencies shall be considered Class Members,
provided that (i) they are included on the Class List with the information set
forth in Section 1.6 [of the Settlement Agreement] to the extent such
information is available to Ark Restaurants Corp, or (ii) Notice is provided to
Class Members via first class mail, email, a static website and/or via other
agreed upon mediums of notice/publication. The Settlement Class does not
include maintenance workers, corporate officers, salespersons, cooks, food
preparers, chefs, dishwashers, directors, clerical staff, office workers, event
coordinators, or any other person whose trade, work, duties, classification or
profession does not customarily have direct contact with guests.
See Settlement Agreement and Release annexed to the Affirmation of Michael A. Tompkins
(“Tompkins Aff.”) 3 as Exhibit A at § 1.32.
Plaintiffs respectfully request that, in the event that the Court grants preliminary approval
of the proposed settlement, the Court authorize the publication/distribution of the proposed Notice
(Exhibit B) and proposed Claim Form (Exhibit C) – as agreed to by the parties. For facilitating
the preliminary approval of the settlement and the publication/distribution of these documents, the
parties have also agreed to the proposed preliminary approval order, and respectfully request that
this Court endorse said order. See Exhibit D.
For the reasons set forth below, Plaintiffs’ motion should be granted in its entirety.
2
The term “Settlement Period” means May 1, 2012 through the date of the Final Order. See Ex. A § 1.34.
3
Unless otherwise indicated, all exhibits are attached to the Tompkins Aff.
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SETTLEMENT & LITIGATION HISTORY
A. Overview and Procedural History
On May 1, 2018, the Named Plaintiffs filed a Class Action Complaint, alleging violations
of Article 6 of the New York Labor Law (“NYLL”), specifically NYLL § 196-d, which prohibits
the withholding of gratuities or charges purported to be a gratuity, as understood by a reasonable
patron. See Doc. No. 1, filed via NYSCEF under Index No. 154038/2018. 4 Plaintiffs allege that
Defendants purportedly assessed mandatory charges (“service charges”) in connection with Ark
Restaurant Corp.’s catered events held in New York, but did not distribute the service charges to
the Class Members who worked at these catered events. Plaintiffs allege that the charges in
question are charges purported to be gratuities pursuant to NYLL § 196-d, the Hospitality Wage
Order (12 NYCRR Part 146) and should have been distributed to the putative Class Members. See
id. Defendants moved to dismiss the Complaint pursuant to CPLR § 3211. See Doc. No. 47.
Plaintiffs’ opposed that motion. Id. That motion was denied by a Decision and Order, dated June
27, 2019. Id.
Defendants deny Plaintiffs’ allegations in their entirety, including that any mandatory
charge at issue could be construed as a gratuity. See Doc. No. 7; see also Samiento v. World Yacht,
10 N.Y.3d 70 (2008) (holding that a “service charge” on a catering contract would be weighed
against the expectations of a reasonable patron to determine if the charge was purported to be a
gratuity for NYLL § 196-d purposes, and, therefore, required to be distributed to the service staff).
Defendants also maintain that the Class Members were paid properly at all times, that a majority
of the Class Members that were/are employed by Ark Restaurants Corp. signed arbitration
4
All documents filed via NYSCEF under Index No. 154038/2018 will be referred to as “Doc. No. [xx].”
3
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agreements and their claims are not appropriate for this forum, and deny any wrongdoing or
liability to the Class Members.
The Complaint alleges that Defendants contracted with customers to hold catered events.
Plaintiffs worked these events in customarily tipped positions. See Doc. No. 1. As food service
workers at Ark Restaurants Corp.’s catered events, the Complaint alleges that Defendants failed
to remit gratuities or charges purported to be gratuities to Plaintiffs as required by NYLL § 196-d
and the Hospitality Wage Order, 12 NYCRR Part 146. See generally id. The Complaint alleges
that Ark Restaurant s Corp.’s customers were required to pay a mandatory service charge, such as
a fixed percentage of the total event bill. See id. The Complaint alleges that the mandatory service
charge was not distributed to the putative Class Members, but, instead, was retained by
Defendants. See id. Defendants generally deny the material allegations in the Complaint and any
wrongdoing or liability to the putative Class Members, and maintain that the Class Members were
paid properly at all times. See Doc. No. 7.
B. Extensive Pre-Class Certification Discovery
The Parties engaged in substantial discovery during the pendency of this action, including
pre-class certification discovery such as to allow the Court to render a decision on CPLR §§ 901,
902. During that phase of litigation, Ark Restaurants Corp. produced thousands of pages of
catering records including event files (i.e., contracts, invoices, orders, final bills, menus,
correspondence, proposals, staffing records and other documents and records reflecting catered
events at Ark Restaurant Corp.’s catering facilities or that were held or off-site). Ark Restaurants
Corp. also produced copies of arbitration agreements signed by putative Class Members, and
calculations relating to the total value of service charges assessed and collected by Ark Restaurants
Corp. during the relevant period.
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C. Settlement Negotiation Process
In addition to the formal discovery that the parties exchanged, Ark Restaurants Corp.
produced thousands of pages of documents for settlement purposes, which Plaintiffs’ Counsel
reviewed, including financial documents and representative samplings of catering event contracts,
invoices, communications and other related documents. During the course of negotiations, the
parties held numerous telephonic conferences, corresponded electronically, shared their respective
views on the validity and potential value of Plaintiffs’ claims and Defendants’ defenses.
Ultimately, after months of negotiations, the parties reached what is respectfully submitted as a
fair and reasonable compromise, given the risks that ongoing litigation would pose for each side
particularly in light of the COVID-19 pandemic and its negative effect on the hospitality industry.
The Agreement is presented here to the Court for preliminary approval and publication/distribution
of the Notice and Claim Form to all effected members of the Class.
D. The Proposed Settlement Agreement
The Agreement establishes a Gross Settlement Fund, up to the amount of Nine Hundred
Thousand Dollars and Zero Cents ($900,000.00). See Ex. A § 1.19. Upon approval by the Court,
the Agreement would establish a fund that will provide members of the Settlement Class a
significant recovery for the alleged charges purported to be gratuities that Plaintiffs maintain were
unlawfully withheld by Defendants during the Settlement Period. As presented here, this amount
fairly reflects the relative merits of their claims and the defenses they would have to overcome in
litigation. See id.
Under the allocation formula set forth in the Agreement, each Class Member’s allocated
share will be based on the individual Class Member’s total points which shall be allocated
generally based on the amount of work each individual class member provided in connection with
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Ark Restaurant Corp.’s catered events from May 1, 2012 to the date the Class List is provided to
the Settlement Claims Administrator. See Ex. A § 3.5. Each Class Member will be placed into one
of two groups: (1) Direct Workers, i.e., workers that received payment directly from Ark
Restaurants Corp. or (2) Temporary Workers, i.e., all other individual Class Members, with
specific calculations to be applied for each such group.
Additionally, the Agreement sets aside a reserve fund of $5,000 for late-filed claims, errors,
and omissions, which will be available for six (6) months following the mailing of the Settlement
Checks. Id. at § 3.1.B.
ARGUMENT
I. THE COURT SHOULD UTILIZE THE TWO-STEP PROCESS
FOR APPROVING THE SETTLEMENT
CPLR § 908 states that “[a] class action shall not be dismissed, discontinued, or
compromised without the approval of the court. Notice of the proposed dismissal, discontinuance,
or compromise shall be given to all members of the class in such manner as the court directs.”
Courts in New York typically utilize a two-step process when reviewing the fairness and
reasonableness of a settlement agreement in the class-action context: (1) preliminarily approving
the settlement and distribution of notice; and (2) scheduling a fairness hearing for considering final
approval of the settlement based on an application with supporting materials. See Contreras v.
Dania Marina, Inc., Index No. 54536/2018 (Sup. Ct. Westchester Cty., Oct. 3, 2019) (approving
settlement after the effectuation of notice to class members); Lopez v. Dinex Grp., Index No.
155706/2014, 2015 N.Y. Misc. LEXIS 2192, at *5-6 (Sup. Ct. N.Y. Cty. June 23, 2015) (noting
that courts generally use the two-step process); see also In re Penthouse Exec. Club Comp. Litig.,
2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014) (Judge Kimba M. Wood granting final
approval of the settlement after the distribution notice to class members and the holding of a
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fairness hearing); xxxx v. Hornblower New York, LLC, Index No. 160993/2014 (Sup. Ct. N.Y.
Cty Aug. 9, 2017) (Justice Carol R. Edmead granting final approval after the distribution of notice
to all class members who worked as service employees and the holding of a fairness hearing); Pino
v. Guastavino's, Inc., Index No. 156976/2015 (Sup. Ct. N.Y. Cty. May 11, 2017) (Justice Lucy
Billings granting preliminary approval and authorizing distribution of notice, and subsequently
conducting a fairness hearing to determine whether the settlement should be finally approved);
Bello v. Spring Soho Inc., Index No. 162683/2015 (Sup. Ct. N.Y. Cty. Mar. 6, 2018) (Justice
Kolter granting final approval after the two-step approach).
II. THE PROPOSED SETTLEMENT AGREEMENT PROVIDES “PROBABLE CAUSE”
FOR PRELIMINARY APPROVAL
A. The Settlement is Fair and Reasonable
“In reviewing a proposed settlement for preliminary approval, rather than final approval,
the Court need only determine whether the proposed settlement is possibly fair, adequate, and
reasonable.” In re Take Two Interactive Secs. Litig., 2010 U.S. Dist. LEXIS 143837, at *31
(S.D.N.Y. June 29, 2010). Courts grant preliminary approval so long as they find “probable cause
to submit the [settlement] proposal to class members and hold a full-scale hearing as to its
fairness.” In re Penthouse, 2013 U.S. Dist. LEXIS 63065 at *7 (quoting In re Traffic Exec. Ass’n,
627 F.2d 631, 634 (2d Cir. 1980) (internal citation omitted)).
Preliminary approval of a proposed settlement is considered appropriate where, as here,
the agreement is the result of “serious, informed, and non-collusive negotiations, where there are
no grounds to doubt its fairness and no other obvious deficiencies … and where the settlement
appears to fall within the range of possible approval.” In re Gilat Satellite Networks, Ltd., No. 02
Civ. 1510 (CPS), 2007 U.S. Dist. LEXIS 29062, 2007 WL 1191048, at *9 (E.D.N.Y. April 19,
2007); see also Tart v. Lions Gate Entm’t Corp., No. 14-CV-8004 (AJN), 2015 U.S. Dist. LEXIS
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139266, at *13 (S.D.N.Y. Oct. 13, 2015) (explaining that preliminary approval should be granted
as long as the proposed settlement “appears to fall within the range of possible approval”) (quoting
Clark v. Ecolab, Inc., 2009 U.S. Dist. LEXIS 108736, at *15 (S.D.N.Y. Nov. 17, 2009)) (internal
quotations omitted); Karic v. Major Auto. Cos., No. 09 CV 5708 (ENV), 2015 U.S. Dist. LEXIS
171730, at *22 (E.D.N.Y. Dec. 22, 2015) (explaining that probable cause exists if the proposed
settlement appears to be “fair, adequate, and reasonable, and not the product of collusion”)
(quoting Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000)).
To determine whether a settlement is possibly fair, adequate, and reasonable, courts
consider “both the negotiating process that led to the settlement and the terms of the agreement
itself.” In re Take Two Interactive Secs. Litig., 2010 U.S. Dist. LEXIS 143837, at *31.
1. The Settlement Should Be Granted the Presumption of Procedural Fairness
On a motion for preliminary approval, procedural fairness is presumed so long as the
proposed agreement is the result of (1) arm’s-length negotiations, (2) among experienced counsel,
(3) after due diligence or discovery. See McReynolds v. Richards-Cantave, 588 F.3d 790, 803 (2d
Cir. 2009); see also Fiala v. Metro. Life Ins. Co., 27 Misc. 3d 599, 607 (Sup. Ct. N.Y. Cty. 2010)
(“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement
reached in arm’s-length negotiations between experienced, capable counsel after meaningful
discovery.”) (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005)
(internal quotations omitted)).
Here, all three elements are satisfied, as discussed below.
i. The Agreement Resulted from Arm’s-Length Negotiations
As outlined in more detail in the Tompkins Aff., this case involves a bona fide dispute that
was litigated in an adversarial manner prior to reaching a settlement. The proposed Settlement
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Agreement was the product of extensive negotiations between Plaintiffs’ counsel and Defendants’
counsel following the exchange of documents and data.
ii. The Parties Are Represented by Competent, Experienced Counsel
The Named Plaintiffs are represented by Leeds Brown Law, P.C. (“Leeds Brown”), whose
attorneys are experienced in labor and employment law. To wit, in a recent decision granting
preliminary approval of a class and collective action settlement, the Honorable Alison J. Nathan
noted:
… Leeds Brown Law, P.C. [and co-counsel] are experienced and well-qualified
employment and class action lawyers with expertise in prosecuting and settling
labor law cases. The substantial work that Plaintiffs’ counsel has performed in
investigating, litigating and reaching a settlement in this case demonstrates their
commitment to the class and representing the class’ interests, as well as their
general ability to conduct this litigation…As noted above, [co-counsel and]
Leeds Brown Law, P.C. have extensive experience in labor law class actions
and have devoted considerable time and effort to litigating and settling this
action on behalf of the class.
Tart, 2015 U.S. Dist. LEXIS 139266 at *7.
Leeds Brown has represented numerous clients in wage and hour litigations under state and
federal law, including many litigations that have settled with court approval. See, e.g., Marcus v.
AXA Advisors, LLC, Case No. 11-CV-2339 (SMG) (E.D.N.Y. May 6, 2016); Arias v. Clear
Channel Broadcasting, Inc., Case No. 14-CV-5088 (SN) (S.D.N.Y. Feb. 2, 2016); Grant v. Warner
Music Group Corp., Case No. 13-CV-4449 (PGG) (S.D.N.Y. Mar. 11, 2016); xxxx v. IHG
Management Maryland LLC, Index No. 050823/2014 (Sup. Ct. Westchester Cty., Feb. 8, 2016);
O’Jeda v. Viacom, Case No. 13-CV-5658 (GWG) (S.D.N.Y. Jan. 13, 2016); Vitetta v. Sirius XM
Radio Inc., Case No. 14-2926 (VEC) (S.D.N.Y. Dec. 18, 2015); Hornblower, Index No.
160993/2014 (Sup. Ct. N.Y. Cty Aug. 9, 2017); Pino v. Guastavino’s, Index No. 156976/2015
(Sup. Ct. N.Y. Cty. May 11, 2017); Macaluso v. Woodbury Int’l, Inc., Index No. 11/105520 (Sup.
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Ct. Nassau Cty., Sept. 9, 2013); Toledo v. DCJ Catering Corp., Index No. 600994/2011 (Sup. Ct.
Nassau Cty., Dec, 21, 2012); Khaimov v. Jem Caterers of Roslyn, LLC, Index No. 003215/2012
(Sup. Ct. Nassau Cty., Oct. 16, 2013) .
Like Leeds Brown, Defendants’ counsel, McGuireWoods LLP, including Michael J.
DiMattia and Philip A. Goldstein, is an experienced and competent firm with expertise in labor
and employment law and wage and hour class action litigation, among other practice areas. See
Tomkins Aff. ¶___.
iii. Plaintiffs’ Counsel Has Engaged in Due Diligence to Ensure that the
Settlement is Fair and Reasonable
Plaintiffs’ Counsel reviewed thousands of pages of documents including representative
samples of Ark Restaurant Corp.’s catered event files comprised of contracts, proposals, orders,
invoices, final bills, correspondence, and other records related to catered events at which the
Named Plaintiffs and putative class members worked during the Settlement Period. Plaintiffs’
Counsel also reviewed copies of arbitration agreements signed by putative Class Members along
with information demonstrating how much Ark Restaurants Corp. collected in service charges for
all catered events during the Settlement Period. Tompkins Aff. ¶¶ 13-14. These document and
information exchanges enabled Plaintiffs’ Counsel to validate Ark Restaurant Corp.’s
representations regarding the charges at issue and the relative strength and consistent publication
of disclaimers that existed in Ark Restaurant Corp.’s catering policies, practices and written event
documents. Tompkins Aff. ¶¶ 14-15. Additionally, Plaintiffs’ counsel served subpoenas on third-
party staffing agencies to assure that relevant records were available for review or will be by the
time the settlement allocation calculations are performed.
2. The Settlement is Substantively Fair and Reasonable
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i. The Settlement is Fair for All Class Members
As noted, at the preliminary approval stage, a proposed settlement agreement is presumed
to be substantively fair so long as it contains no obvious defects. It is not necessary for the Court
at this stage to conduct a thorough evaluation of the Agreement. However, it is worth noting that
a more thorough review of the Agreement would demonstrate that the agreement is substantively
fair to all Class Members.
The Agreement establishes a Gross Settlement Fund up to the amount of Nine Hundred
Thousand Dollars and Zero Cents ($900,000.00). See Ex. A § 1.19. Upon final approval by the
Court, this fund will provide members of the Settlement Class with a fair percentage of their
allegedly unpaid gratuities for the period between May 1, 2012 and the date the Class List is
provided to the Settlement Claims Administrator, particularly given the significant questions about
liability and damages in this case, as discussed below. See generally id.
ii. The Settlement Contains No Obvious Defects
In this case, even a cursory review of the Agreement would reveal that the Agreement
contains no obvious deficiencies. See Ex. A. Under the terms of the Agreement, Named Plaintiffs
are compensated using the same formula as the putative Class Members. The proposed service
award of no more than the cumulative total of $15,000 to Named Plaintiffs Settecasi and xxxx is
comparable to service awards that have been approved in similar cases. See, e.g., In re Penthouse
Executive Club Litig., 10-CV-1145(KMW) (approving service awards of $15,000 for each named
plaintiff and $8,750 for each opt-in Plaintiff); Chavarria v. Crest Hollow Country Club, Index No.
17464/2011 (Sup. Ct. Nassau Cty., Dec. 13, 2013) (J. DeStefano) (approving service awards of a
combined $25,000 and $8,333.33 for each named plaintiff); Toure v. Amerigroup Corp., No. 10
Civ. 5391, 2012 WL 3240461, at *6 (E.D.N.Y. Aug. 6, 2012) (approving awards of $10,000 for
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each class representative); Lovaglio v. W & E Hospitality, Inc., N
Preview
FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VINCENT SETTECASI and xxxxxxxx xxxx; Index No.: 154038/2018 individually and on behalf of others similarly situated, Plaintiffs, - against - ARK RESTAURANTS CORP.; ARK BRYANT PARK LLC; ARK BRYANT PARK SOUTHWEST, LLC; MICHAEL WEINSTEIN; and any other related entities, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT LEEDS BROWN LAW, P.C. Michael A. Tompkins, Esq. Anthony M. Alesandro, Esq. One Old Country Road, Suite 347 Carle Place, New York 11514 Attorneys for Plaintiff & the Settlement Class 1 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 SETTLEMENT & LITIGATION HISTORY ................................................................................ 3 A. Overview and Procedural History ................................................................................ 3 B. Settlement Negotiation Process .................................................................................... 4 C. The Proposed Settlement Agreement ........................................................................... 5 ARGUMENT .................................................................................................................................. 6 I. THE COURT SHOULD UTILIZE THE TWO-STEP PROCESS FOR APPROVING THE SETTLEMENT ................................................................................................................... 6 II. THE PROPOSED SETTLEMENT AGREEMENT PROVIDES “PROBABLE CAUSE” FOR PRELIMINARY APPROVAL .................................................................................. 7 A. The Settlement is Fair and Reasonable......................................................................... 7 B. Courts Routinely Approve Similar Settlements ......................................................... 13 III. CLASS CERTIFICATION SHOULD BE GRANTED ..................................................... 14 CONCLUSION ............................................................................................................................. 22 i 2 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 Table of Authorities Cases Contreras v. Yonkers Racing Corp., No. 67170/2018, 2020 N.Y. Misc. LEXIS 1226 (N.Y. Sup. Ct. Mar. 16, 2020) .................................. 4 Davis v. J.P. Morgan Chase & Co. , 827 F. Supp. 2d 172 (W.D.N.Y. 2011) ............................................................................................... 12 deMunecas v. Bold Food, L.L.C., No. 09 Civ. 00440 (DAB), 2010 WL 3322580 (S.D.N.Y. Aug. 23, 2010) ......................................... 12 Fernandez v. Hospitality, No. 152208/2014, 2015 N.Y. Misc. LEXIS 2193 (N.Y. Sup. Ct. June 20, 2015) .............................. 13 Fiala v. Metro. Life Ins. Co., 27 Misc. 3d 599 (N.Y. Sup. Ct. 2010) .................................................................................................. 8 In re Gilat Satellite Networks, Ltd., No. CV-02-1510 (CPS), 2007 U.S. Dist. LEXIS 29062, 2007 WL 1191048 ....................................... 7 In re Penthouse Exec. Club Comp. Litig., No. 10 Civ. 1145 (KMW), 2013 U.S. Dist. LEXIS 63065 (S.D.N.Y. Apr. 29, 2013) .......................... 7 In re Penthouse Exec. Club Comp. Litig., No. 10 Civ. 1145 (KMW), 2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014) ............................. 6 In re Take Two Interactive Secs. Litig., No. 06 Civ. 1733 (RJS), 2010 U.S. Dist. LEXIS 143837 (S.D.N.Y. June 29, 2010) ........................... 7 Kelen v. World Fin. Network Nat’l Bank, No. 12-CV-9418 (VSB), 2014 U.S. Dist. LEXIS 112079 (S.D.N.Y. July 28, 2014) ........................... 8 Lopez v. Dinex Grp., No. 155706/2014, 2015 N.Y. Misc. LEXIS 2192 (N.Y. Sup. Ct. June 23, 2015) ................................ 6 Lovaglio v. W & E Hosp., Inc. , No. 10 CIV 7351 (LLS), 2012 WL 2775019 (S.D.N.Y. July 5, 2012) ............................................... 11 Martin v. Rest. Assoc. Events Corp., 35 Misc. 3d 215, 937 N.Y.S.2d 556 (N.Y. Sup. Ct. Jan. 7, 2012) ..................................................... 2-3 McMahon v. Olivier Cheng Catering & Events, L.L.C. , No. 08 Civ. 8713 (PGG), 2010 U.S. Dist. LEXIS 18913 (S.D.N.Y. Mar. 2, 2010) ........................... 13 McReynolds v. Richards-Cantave, 588 F.3d 790 (2d Cir. 2009) .................................................................................................................. 8 Mohney v. Shelly's Prime Steak, Stone Crab & Oyster Bar , No. 06 Civ. 4270 (PAC), 2009 U.S. Dist. LEXIS 27899 (S.D.N.Y. Mar. 31, 2009) .......................... 12 Montero v. 333 Bayville Ave. Rest. Corp., Index No. 603760/2017 (Sup. Ct. Nassau Cty. Oct. 10 2018) ................................................................................................... 13 ii 3 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 Ramirez v. Lovin' Oven Catering Suffolk, Inc., No. 11 Civ. 0520 (JGK) (JLC), 2011 U.S. Dist. LEXIS 138475 (S.D.N.Y. Oct. 27, 2011) ............... 13 Ramirez v. Mansions Catering, Inc., 74 A.D.3d 490 (1st Dep’t 2010) ............................................................................................................ 2 Samiento v. World Yacht Inc., 10 N.Y.3d 70 (2008) ............................................................................................................................. 2 Sewell v. Bovis Lend Lease LMB, Inc., No. 09 Civ. 6548 (RLE), 2012 WL 1320124 (S.D.N.Y. Apr. 16, 2012) ............................................ 11 Slobodan Karic v. Major Auto. Cos., No. 09 CV 5708 (ENV), 2015 U.S. Dist. LEXIS 171730 (E.D.N.Y. Dec. 22, 2015) .......................... 7 Spicer v. Pier Sixty L.L.C., No. 08 Civ. 10240 (PAE), 2012 U.S. Dist. LEXIS 137409 (S.D.N.Y. Sept. 14, 2012) ..................... 13 Tamburino v. Madison Sq. Garden, LP, 115 A.D.3d 217 (1st Dep’t 2014) .......................................................................................................... 3 Tart v. Lions Gate Ent. Corp., No. 14-CV-8004 (AJN), 2015 U.S. Dist. LEXIS 139266 (S.D.N.Y. Oct. 13, 2015) ........................ 7, 9 Toure v. Amerigroup Corp., No. 10 Civ. 5391 (RLM), 2012 U.S. Dist. LEXIS 110300 (E.D.N.Y. Aug. 6, 2012) ........................ 12 Toure v. Amerigroup Corp., No. 10 Civ. 5391 (RLM), 2012 WL 3240461 (E.D.N.Y. Aug. 6, 2012) ............................................ 11 Willix v. Healthfirst, Inc., No. 07 Civ. 1143 (ENV)(RER), 2011 U.S. Dist. LEXIS 21102 (E.D.N.Y. Feb. 18, 2011) ............... 12 Statutes N.Y. C.P.L.R. 901, 902 ......................................................................................................................... 3, 14 N.Y. C.P.L.R. 908 ....................................................................................................................................... 6 iii 4 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 Plaintiffs respectfully submit this memorandum of law in support of their unopposed motion for preliminary approval of the proposed class action settlement. For settlement purposes only, Defendants do not oppose Plaintiffs’ motion. Plaintiffs seek an order pursuant to Article 9 of the New York Civil Practice Law and Rules (“CPLR”) granting: (1) preliminary approval of the proposed settlement as set forth in the proposed Settlement Agreement and Release (“Agreement”); (2) certification of the proposed Settlement Class for settlement purposes only; (3) appointment of Leeds Brown Law, P.C. as Class Counsel; (4) authorization to publish/distribute the proposed Notice of Proposed Class Action Settlement (“Notice”) and Claim Form to Receive a Portion of the Settlement Funds and Release (“Claim Form”); (5) approval of the procedures for implementing the Agreement; and (6) any other relief this Court deems just and proper. PRELIMINARY STATEMENT This action was brought by Named Plaintiffs VINCENT SETTECASI and xxxxxxxx xxxx (“the Named Plaintiffs”), on behalf of themselves and a putative class of individuals (“Class Members”, who, collectively with the Named Plaintiffs, are “Plaintiffs”), against Ark Restaurants Corp.; Ark Bryant Park LLC; Ark Bryant Park Southwest, LLC; Michael Weinstein; Robert J. Stewart 1 ; and any other related entities, (collectively, “Defendants”). Plaintiffs are alleged to have generally performed service work at Ark Restaurants Corp.’s catered events held in the State of New York on or off Ark Restaurants Corp.’s premises either as employees of Ark Restaurants Corp. or through third-party staffing agencies from May 2012 through the date the Class List is provided to the Settlement Claims Administrator in such trades, classifications, positions, jobs, and professions that customarily receive gratuities, including but not limited to 1 Mr. Stewart passed away in July 2018 and has been removed as a defendant from this matter. 1 5 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 wait staff, waiters, servers, captains, bussers, bartenders, bathroom attendants, and coat check attendants . 2 This memorandum of law is submitted in support of a proposed settlement on behalf of a “Class” or “Settlement Class” defined as: All individuals employed, used or engaged by Ark Restaurants Corp., from May 1, 2012 through the date the Class List is provided to the Settlement Claims Administrator, who performed work at Ark Restaurants Corp.’s catered events held on or off Ark Restaurants Corp.’s premises, in such trades, classifications, positions, jobs, and professions that customarily receive gratuities, including but not limited to wait staff, waiters, servers, captains, bussers, bartenders, bathroom attendants, and coat check attendants. Individuals who performed work at Ark Restaurants Corp. in these or similar positions but were supplied and/or paid by third-party staffing agencies shall be considered Class Members, provided that (i) they are included on the Class List with the information set forth in Section 1.6 [of the Settlement Agreement] to the extent such information is available to Ark Restaurants Corp, or (ii) Notice is provided to Class Members via first class mail, email, a static website and/or via other agreed upon mediums of notice/publication. The Settlement Class does not include maintenance workers, corporate officers, salespersons, cooks, food preparers, chefs, dishwashers, directors, clerical staff, office workers, event coordinators, or any other person whose trade, work, duties, classification or profession does not customarily have direct contact with guests. See Settlement Agreement and Release annexed to the Affirmation of Michael A. Tompkins (“Tompkins Aff.”) 3 as Exhibit A at § 1.32. Plaintiffs respectfully request that, in the event that the Court grants preliminary approval of the proposed settlement, the Court authorize the publication/distribution of the proposed Notice (Exhibit B) and proposed Claim Form (Exhibit C) – as agreed to by the parties. For facilitating the preliminary approval of the settlement and the publication/distribution of these documents, the parties have also agreed to the proposed preliminary approval order, and respectfully request that this Court endorse said order. See Exhibit D. For the reasons set forth below, Plaintiffs’ motion should be granted in its entirety. 2 The term “Settlement Period” means May 1, 2012 through the date of the Final Order. See Ex. A § 1.34. 3 Unless otherwise indicated, all exhibits are attached to the Tompkins Aff. 2 6 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 SETTLEMENT & LITIGATION HISTORY A. Overview and Procedural History On May 1, 2018, the Named Plaintiffs filed a Class Action Complaint, alleging violations of Article 6 of the New York Labor Law (“NYLL”), specifically NYLL § 196-d, which prohibits the withholding of gratuities or charges purported to be a gratuity, as understood by a reasonable patron. See Doc. No. 1, filed via NYSCEF under Index No. 154038/2018. 4 Plaintiffs allege that Defendants purportedly assessed mandatory charges (“service charges”) in connection with Ark Restaurant Corp.’s catered events held in New York, but did not distribute the service charges to the Class Members who worked at these catered events. Plaintiffs allege that the charges in question are charges purported to be gratuities pursuant to NYLL § 196-d, the Hospitality Wage Order (12 NYCRR Part 146) and should have been distributed to the putative Class Members. See id. Defendants moved to dismiss the Complaint pursuant to CPLR § 3211. See Doc. No. 47. Plaintiffs’ opposed that motion. Id. That motion was denied by a Decision and Order, dated June 27, 2019. Id. Defendants deny Plaintiffs’ allegations in their entirety, including that any mandatory charge at issue could be construed as a gratuity. See Doc. No. 7; see also Samiento v. World Yacht, 10 N.Y.3d 70 (2008) (holding that a “service charge” on a catering contract would be weighed against the expectations of a reasonable patron to determine if the charge was purported to be a gratuity for NYLL § 196-d purposes, and, therefore, required to be distributed to the service staff). Defendants also maintain that the Class Members were paid properly at all times, that a majority of the Class Members that were/are employed by Ark Restaurants Corp. signed arbitration 4 All documents filed via NYSCEF under Index No. 154038/2018 will be referred to as “Doc. No. [xx].” 3 7 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 agreements and their claims are not appropriate for this forum, and deny any wrongdoing or liability to the Class Members. The Complaint alleges that Defendants contracted with customers to hold catered events. Plaintiffs worked these events in customarily tipped positions. See Doc. No. 1. As food service workers at Ark Restaurants Corp.’s catered events, the Complaint alleges that Defendants failed to remit gratuities or charges purported to be gratuities to Plaintiffs as required by NYLL § 196-d and the Hospitality Wage Order, 12 NYCRR Part 146. See generally id. The Complaint alleges that Ark Restaurant s Corp.’s customers were required to pay a mandatory service charge, such as a fixed percentage of the total event bill. See id. The Complaint alleges that the mandatory service charge was not distributed to the putative Class Members, but, instead, was retained by Defendants. See id. Defendants generally deny the material allegations in the Complaint and any wrongdoing or liability to the putative Class Members, and maintain that the Class Members were paid properly at all times. See Doc. No. 7. B. Extensive Pre-Class Certification Discovery The Parties engaged in substantial discovery during the pendency of this action, including pre-class certification discovery such as to allow the Court to render a decision on CPLR §§ 901, 902. During that phase of litigation, Ark Restaurants Corp. produced thousands of pages of catering records including event files (i.e., contracts, invoices, orders, final bills, menus, correspondence, proposals, staffing records and other documents and records reflecting catered events at Ark Restaurant Corp.’s catering facilities or that were held or off-site). Ark Restaurants Corp. also produced copies of arbitration agreements signed by putative Class Members, and calculations relating to the total value of service charges assessed and collected by Ark Restaurants Corp. during the relevant period. 4 8 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 C. Settlement Negotiation Process In addition to the formal discovery that the parties exchanged, Ark Restaurants Corp. produced thousands of pages of documents for settlement purposes, which Plaintiffs’ Counsel reviewed, including financial documents and representative samplings of catering event contracts, invoices, communications and other related documents. During the course of negotiations, the parties held numerous telephonic conferences, corresponded electronically, shared their respective views on the validity and potential value of Plaintiffs’ claims and Defendants’ defenses. Ultimately, after months of negotiations, the parties reached what is respectfully submitted as a fair and reasonable compromise, given the risks that ongoing litigation would pose for each side particularly in light of the COVID-19 pandemic and its negative effect on the hospitality industry. The Agreement is presented here to the Court for preliminary approval and publication/distribution of the Notice and Claim Form to all effected members of the Class. D. The Proposed Settlement Agreement The Agreement establishes a Gross Settlement Fund, up to the amount of Nine Hundred Thousand Dollars and Zero Cents ($900,000.00). See Ex. A § 1.19. Upon approval by the Court, the Agreement would establish a fund that will provide members of the Settlement Class a significant recovery for the alleged charges purported to be gratuities that Plaintiffs maintain were unlawfully withheld by Defendants during the Settlement Period. As presented here, this amount fairly reflects the relative merits of their claims and the defenses they would have to overcome in litigation. See id. Under the allocation formula set forth in the Agreement, each Class Member’s allocated share will be based on the individual Class Member’s total points which shall be allocated generally based on the amount of work each individual class member provided in connection with 5 9 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 Ark Restaurant Corp.’s catered events from May 1, 2012 to the date the Class List is provided to the Settlement Claims Administrator. See Ex. A § 3.5. Each Class Member will be placed into one of two groups: (1) Direct Workers, i.e., workers that received payment directly from Ark Restaurants Corp. or (2) Temporary Workers, i.e., all other individual Class Members, with specific calculations to be applied for each such group. Additionally, the Agreement sets aside a reserve fund of $5,000 for late-filed claims, errors, and omissions, which will be available for six (6) months following the mailing of the Settlement Checks. Id. at § 3.1.B. ARGUMENT I. THE COURT SHOULD UTILIZE THE TWO-STEP PROCESS FOR APPROVING THE SETTLEMENT CPLR § 908 states that “[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court. Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.” Courts in New York typically utilize a two-step process when reviewing the fairness and reasonableness of a settlement agreement in the class-action context: (1) preliminarily approving the settlement and distribution of notice; and (2) scheduling a fairness hearing for considering final approval of the settlement based on an application with supporting materials. See Contreras v. Dania Marina, Inc., Index No. 54536/2018 (Sup. Ct. Westchester Cty., Oct. 3, 2019) (approving settlement after the effectuation of notice to class members); Lopez v. Dinex Grp., Index No. 155706/2014, 2015 N.Y. Misc. LEXIS 2192, at *5-6 (Sup. Ct. N.Y. Cty. June 23, 2015) (noting that courts generally use the two-step process); see also In re Penthouse Exec. Club Comp. Litig., 2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014) (Judge Kimba M. Wood granting final approval of the settlement after the distribution notice to class members and the holding of a 6 10 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 fairness hearing); xxxx v. Hornblower New York, LLC, Index No. 160993/2014 (Sup. Ct. N.Y. Cty Aug. 9, 2017) (Justice Carol R. Edmead granting final approval after the distribution of notice to all class members who worked as service employees and the holding of a fairness hearing); Pino v. Guastavino's, Inc., Index No. 156976/2015 (Sup. Ct. N.Y. Cty. May 11, 2017) (Justice Lucy Billings granting preliminary approval and authorizing distribution of notice, and subsequently conducting a fairness hearing to determine whether the settlement should be finally approved); Bello v. Spring Soho Inc., Index No. 162683/2015 (Sup. Ct. N.Y. Cty. Mar. 6, 2018) (Justice Kolter granting final approval after the two-step approach). II. THE PROPOSED SETTLEMENT AGREEMENT PROVIDES “PROBABLE CAUSE” FOR PRELIMINARY APPROVAL A. The Settlement is Fair and Reasonable “In reviewing a proposed settlement for preliminary approval, rather than final approval, the Court need only determine whether the proposed settlement is possibly fair, adequate, and reasonable.” In re Take Two Interactive Secs. Litig., 2010 U.S. Dist. LEXIS 143837, at *31 (S.D.N.Y. June 29, 2010). Courts grant preliminary approval so long as they find “probable cause to submit the [settlement] proposal to class members and hold a full-scale hearing as to its fairness.” In re Penthouse, 2013 U.S. Dist. LEXIS 63065 at *7 (quoting In re Traffic Exec. Ass’n, 627 F.2d 631, 634 (2d Cir. 1980) (internal citation omitted)). Preliminary approval of a proposed settlement is considered appropriate where, as here, the agreement is the result of “serious, informed, and non-collusive negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies … and where the settlement appears to fall within the range of possible approval.” In re Gilat Satellite Networks, Ltd., No. 02 Civ. 1510 (CPS), 2007 U.S. Dist. LEXIS 29062, 2007 WL 1191048, at *9 (E.D.N.Y. April 19, 2007); see also Tart v. Lions Gate Entm’t Corp., No. 14-CV-8004 (AJN), 2015 U.S. Dist. LEXIS 7 11 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 139266, at *13 (S.D.N.Y. Oct. 13, 2015) (explaining that preliminary approval should be granted as long as the proposed settlement “appears to fall within the range of possible approval”) (quoting Clark v. Ecolab, Inc., 2009 U.S. Dist. LEXIS 108736, at *15 (S.D.N.Y. Nov. 17, 2009)) (internal quotations omitted); Karic v. Major Auto. Cos., No. 09 CV 5708 (ENV), 2015 U.S. Dist. LEXIS 171730, at *22 (E.D.N.Y. Dec. 22, 2015) (explaining that probable cause exists if the proposed settlement appears to be “fair, adequate, and reasonable, and not the product of collusion”) (quoting Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000)). To determine whether a settlement is possibly fair, adequate, and reasonable, courts consider “both the negotiating process that led to the settlement and the terms of the agreement itself.” In re Take Two Interactive Secs. Litig., 2010 U.S. Dist. LEXIS 143837, at *31. 1. The Settlement Should Be Granted the Presumption of Procedural Fairness On a motion for preliminary approval, procedural fairness is presumed so long as the proposed agreement is the result of (1) arm’s-length negotiations, (2) among experienced counsel, (3) after due diligence or discovery. See McReynolds v. Richards-Cantave, 588 F.3d 790, 803 (2d Cir. 2009); see also Fiala v. Metro. Life Ins. Co., 27 Misc. 3d 599, 607 (Sup. Ct. N.Y. Cty. 2010) (“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.”) (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (internal quotations omitted)). Here, all three elements are satisfied, as discussed below. i. The Agreement Resulted from Arm’s-Length Negotiations As outlined in more detail in the Tompkins Aff., this case involves a bona fide dispute that was litigated in an adversarial manner prior to reaching a settlement. The proposed Settlement 8 12 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 Agreement was the product of extensive negotiations between Plaintiffs’ counsel and Defendants’ counsel following the exchange of documents and data. ii. The Parties Are Represented by Competent, Experienced Counsel The Named Plaintiffs are represented by Leeds Brown Law, P.C. (“Leeds Brown”), whose attorneys are experienced in labor and employment law. To wit, in a recent decision granting preliminary approval of a class and collective action settlement, the Honorable Alison J. Nathan noted: … Leeds Brown Law, P.C. [and co-counsel] are experienced and well-qualified employment and class action lawyers with expertise in prosecuting and settling labor law cases. The substantial work that Plaintiffs’ counsel has performed in investigating, litigating and reaching a settlement in this case demonstrates their commitment to the class and representing the class’ interests, as well as their general ability to conduct this litigation…As noted above, [co-counsel and] Leeds Brown Law, P.C. have extensive experience in labor law class actions and have devoted considerable time and effort to litigating and settling this action on behalf of the class. Tart, 2015 U.S. Dist. LEXIS 139266 at *7. Leeds Brown has represented numerous clients in wage and hour litigations under state and federal law, including many litigations that have settled with court approval. See, e.g., Marcus v. AXA Advisors, LLC, Case No. 11-CV-2339 (SMG) (E.D.N.Y. May 6, 2016); Arias v. Clear Channel Broadcasting, Inc., Case No. 14-CV-5088 (SN) (S.D.N.Y. Feb. 2, 2016); Grant v. Warner Music Group Corp., Case No. 13-CV-4449 (PGG) (S.D.N.Y. Mar. 11, 2016); xxxx v. IHG Management Maryland LLC, Index No. 050823/2014 (Sup. Ct. Westchester Cty., Feb. 8, 2016); O’Jeda v. Viacom, Case No. 13-CV-5658 (GWG) (S.D.N.Y. Jan. 13, 2016); Vitetta v. Sirius XM Radio Inc., Case No. 14-2926 (VEC) (S.D.N.Y. Dec. 18, 2015); Hornblower, Index No. 160993/2014 (Sup. Ct. N.Y. Cty Aug. 9, 2017); Pino v. Guastavino’s, Index No. 156976/2015 (Sup. Ct. N.Y. Cty. May 11, 2017); Macaluso v. Woodbury Int’l, Inc., Index No. 11/105520 (Sup. 9 13 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 Ct. Nassau Cty., Sept. 9, 2013); Toledo v. DCJ Catering Corp., Index No. 600994/2011 (Sup. Ct. Nassau Cty., Dec, 21, 2012); Khaimov v. Jem Caterers of Roslyn, LLC, Index No. 003215/2012 (Sup. Ct. Nassau Cty., Oct. 16, 2013) . Like Leeds Brown, Defendants’ counsel, McGuireWoods LLP, including Michael J. DiMattia and Philip A. Goldstein, is an experienced and competent firm with expertise in labor and employment law and wage and hour class action litigation, among other practice areas. See Tomkins Aff. ¶___. iii. Plaintiffs’ Counsel Has Engaged in Due Diligence to Ensure that the Settlement is Fair and Reasonable Plaintiffs’ Counsel reviewed thousands of pages of documents including representative samples of Ark Restaurant Corp.’s catered event files comprised of contracts, proposals, orders, invoices, final bills, correspondence, and other records related to catered events at which the Named Plaintiffs and putative class members worked during the Settlement Period. Plaintiffs’ Counsel also reviewed copies of arbitration agreements signed by putative Class Members along with information demonstrating how much Ark Restaurants Corp. collected in service charges for all catered events during the Settlement Period. Tompkins Aff. ¶¶ 13-14. These document and information exchanges enabled Plaintiffs’ Counsel to validate Ark Restaurant Corp.’s representations regarding the charges at issue and the relative strength and consistent publication of disclaimers that existed in Ark Restaurant Corp.’s catering policies, practices and written event documents. Tompkins Aff. ¶¶ 14-15. Additionally, Plaintiffs’ counsel served subpoenas on third- party staffing agencies to assure that relevant records were available for review or will be by the time the settlement allocation calculations are performed. 2. The Settlement is Substantively Fair and Reasonable 10 14 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 i. The Settlement is Fair for All Class Members As noted, at the preliminary approval stage, a proposed settlement agreement is presumed to be substantively fair so long as it contains no obvious defects. It is not necessary for the Court at this stage to conduct a thorough evaluation of the Agreement. However, it is worth noting that a more thorough review of the Agreement would demonstrate that the agreement is substantively fair to all Class Members. The Agreement establishes a Gross Settlement Fund up to the amount of Nine Hundred Thousand Dollars and Zero Cents ($900,000.00). See Ex. A § 1.19. Upon final approval by the Court, this fund will provide members of the Settlement Class with a fair percentage of their allegedly unpaid gratuities for the period between May 1, 2012 and the date the Class List is provided to the Settlement Claims Administrator, particularly given the significant questions about liability and damages in this case, as discussed below. See generally id. ii. The Settlement Contains No Obvious Defects In this case, even a cursory review of the Agreement would reveal that the Agreement contains no obvious deficiencies. See Ex. A. Under the terms of the Agreement, Named Plaintiffs are compensated using the same formula as the putative Class Members. The proposed service award of no more than the cumulative total of $15,000 to Named Plaintiffs Settecasi and xxxx is comparable to service awards that have been approved in similar cases. See, e.g., In re Penthouse Executive Club Litig., 10-CV-1145(KMW) (approving service awards of $15,000 for each named plaintiff and $8,750 for each opt-in Plaintiff); Chavarria v. Crest Hollow Country Club, Index No. 17464/2011 (Sup. Ct. Nassau Cty., Dec. 13, 2013) (J. DeStefano) (approving service awards of a combined $25,000 and $8,333.33 for each named plaintiff); Toure v. Amerigroup Corp., No. 10 Civ. 5391, 2012 WL 3240461, at *6 (E.D.N.Y. Aug. 6, 2012) (approving awards of $10,000 for 11 15 of 27 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/17/2021 each class representative); Lovaglio v. W & E Hospitality, Inc., N