Douglas v. Allied Universal Sec. Servs.

371 F. Supp. 3d 78
CourtDistrict Court, E.D. New York
DecidedMarch 29, 2019
Docket17-CV-6093-SJB
StatusPublished
Cited by26 cases

This text of 371 F. Supp. 3d 78 (Douglas v. Allied Universal Sec. Servs.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas v. Allied Universal Sec. Servs., 371 F. Supp. 3d 78 (E.D.N.Y. 2019).

Opinion

BULSARA, United States Magistrate Judge:

On October 18, 2017, Plaintiff Kirk Douglas ("Douglas") brought this action, on behalf of himself and others similarly situated, against Allied Universal Security Services, Allied Barton Security Services LLC, and Allied Security Holdings LLC (collectively, "Allied") alleging violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") for failure to pay minimum and overtime wages. (Compl., Dkt. No. 1). On November 30, 2018, Douglas filed an unopposed motion *81for class and collective certification and preliminary approval of a settlement agreement reached with Allied. (See Mot. to Certify, Dkt. No. 33 ("Mot.") at 1-2).1

The proposed settlement is a hybrid class and collective action resolution. A FLSA collective would cover employees who worked for Allied at JFK Airport between October 18, 2014 and the present, while a NYLL class would cover employees who worked there between September 1, 2013 and the present. (Id. ; see also Notice of Proposed Class and Collective Action Lawsuit, attached as Ex. 1 to Letter dated Feb. 18, 2019 ("Suppl. Letter"), Dkt. No. 41 ("Class Notice") at 4). The settlement proceeds along the following sequence. After preliminary approval of the settlement by the Court, notice would be mailed to all potential collective and class members. Class members-i.e. those who have NYLL claims-are automatically included in the class unless they affirmatively opt out within 60 days of the mailing of the class notice. (Proposed Schedule for Settlement Approval, attached as Ex. A to Mot., Dkt. No. 33 ("Proposed Schedule") ). The Court would then hold a final approval hearing. If the settlement is approved, checks would be sent to class members and potential collective members. Those employees who cash their settlement checks would be deemed to have opted into the FLSA collective and to have released their FLSA claims.2 (Class Notice at 2; Settlement Agreement, attached as Ex. 1 to Aff. of Christopher Q. Davis, Dkt. No. 34 ("Settlement Agreement") ¶ 2.3).3

The parties have proceeded as if this is a typical class action settlement. It is not. The proposed settlement ignores the special complexities attendant to approval of a settlement of FLSA claims in this Circuit-complexities resulting from the Second Circuit's decision in Cheeks v. Freeport Pancake House, Inc. , 796 F.3d 199 (2d Cir. 2015). The Court first alerted the parties to these issues by Order dated December 20, 2018, after the parties had submitted a motion seeking preliminary approval of the settlement, but failed to cite, let alone address, Cheeks . (Order dated Dec. 20, 2018, Dkt. No. 38 ("Clarification Order"); see generally Mem. in Support of Mot., Dkt. No. 35 ("Pl.'s Mem.") ). In response, Plaintiff's counsel submitted a summary letter that said Cheeks had been addressed in their prior submission, albeit implicitly. (Letter dated Jan. 15, 2019, Dkt. No. 39). The letter did not address attorney's fees, among other things. (See id. ). The Court then held a hearing on February 4, 2019 in which it addressed problems with these proposals and directed parties to revise their submissions to provide, among other things, authority regarding the interaction between a FLSA collective and NYLL class and whether the cashing of a settlement check is an appropriate opt-in procedure for a FLSA collective. (See Minute Entry dated Feb. 4, 2019; Tr. of Mot. to Certify Hr'g on Feb. 4, 2019, Dkt. No. 43 ("Feb. 4 Tr.") at 6:1-5). On February 18, *822019, parties jointly filed a letter providing the Court with additional briefing on the topics discussed at the hearing and a revised settlement notice for Court approval. (See Suppl. Letter; Class Notice). The additional submissions have not resolved the various issues that are present in the agreement, and as a result, the Court cannot approve the proposed settlement.

Rule 23(e) by its terms requires that a class action settlement be "fair, reasonable, and adequate." At the preliminary approval stage of the case, "the district court must determine that a class action settlement is fair, adequate, and reasonable, and not a product of collusion." Joel A. v. Giuliani , 218 F.3d 132, 138 (2d Cir. 2000) ; see Fed. R. Civ. P. 23(e)(2). Under Cheeks , parties cannot privately settle FLSA claims with prejudice absent the approval of the district court and must "satisfy the Court that their agreement is fair and reasonable." Cortes v. New Creators, Inc. , No. 15-CV-5680, 2016 WL 3455383, at *2 (S.D.N.Y. June 20, 2016) (quotations omitted) (citing Cheeks , 796 F.3d at 200 ).

In determining whether the proposed settlement is fair and reasonable, a court should consider the totality of circumstances, including but not limited to the following factors: (1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their respective claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's-length bargaining between experienced counsel; and (5) the possibility of fraud or collusion.

Wolinsky v. Scholastic Inc. , 900 F.Supp.2d 332, 335 (S.D.N.Y. 2012) (quotations omitted). "Making this determination is ... an information intensive undertaking, and the Parties must provide the Court with enough information to evaluate the bona fides of the dispute." Aguirre v. Torino Pizza, Inc. , No. 18-CV-2004, 2019 WL 126059, at *2 (S.D.N.Y. Jan. 8, 2019) (quotations and citations omitted) (alterations omitted).

Cheeks and Wolinsky are integral components of the Rule 23(e) preliminary class approval in this case. For one thing, the proposed settlement results in a dismissal, with prejudice, of FLSA claims. (Settlement Agreement ¶ 3.7(c) ("Any Class Member who endorses and cashes a Settlement Check will ... have any FLSA Claims released and dismissed.") ). That requires Court approval. See Cheeks , 796 F.3d at 206.

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Bluebook (online)
371 F. Supp. 3d 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-allied-universal-sec-servs-nyed-2019.