Fujiwara v. Sushi Yasuda Ltd.

58 F. Supp. 3d 424, 2014 WL 5840700
CourtDistrict Court, S.D. New York
DecidedNovember 12, 2014
DocketNo. 12CV8742
StatusPublished
Cited by104 cases

This text of 58 F. Supp. 3d 424 (Fujiwara v. Sushi Yasuda Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fujiwara v. Sushi Yasuda Ltd., 58 F. Supp. 3d 424, 2014 WL 5840700 (S.D.N.Y. 2014).

Opinion

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge:

In 1938, Congress enacted the Fair Labor Standards Act (FLSA) to guarantee workers “[a] fair day’s pay for a fair day’s work” and to guard against “the evil of ‘overwork’ as well as ‘underpay.’ ” Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) (quoting 81 Cong. Rec. 4983 (1937) (message of President Roosevelt)).

Recent years have witnessed an explosion in FLSA litigation. FLSA cases constitute nearly 9% of the civil cases filed in the Southern District of New York so far this year. And this district is no outlier. Nationwide, annual FLSA filings are up over 400% from 2001.1

A law is only effective to the extent it is enforced, and this increased litigation has been a positive development for many low-wage workers. The same is true for their lawyers. The danger to workers from underpayment by their employers is clear. The danger of overpaying their lawyers is more subtle.

When cases settle, “the adversarial process melts away.” S.E.C. v. Bear, Stearns & Co., 626 F.Supp.2d 402, 403 (S.D.N.Y.2009). Settling defendants tend to lose interest in how settlement monies are distributed. And a natural tension arises be[430]*430tween plaintiffs’ attorneys and the class they represent, in that both must jockey for payment from a common fund. Often, it is judges alone who are left to safeguard the interests of the class.

Courts typically rely on the adversarial process to strike a balance between competing interests. But the vacuum created by proposed FLSA class action settlements has permitted plaintiffs’ attorneys to write much of the law on what constitutes a reasonable attorney’s fee. Those fees, effectively paid by the class, at times provide lawyers with more than a fair day’s pay for a fair day’s work.

As is often the case, Plaintiffs in this FLSA and New York Labor Law (NYLL) action move, unopposed, for final approval of a class settlement. Their lawyers have expertly guided the case to this point and obtained an excellent settlement for the class. For the following reasons, Plaintiffs’ motion for final approval is granted, but the requested attorney’s fees are reduced and the application for service awards for Class Representatives is denied.

BACKGROUND

In 2011, Eric Asimov, the chief wine critic for the New York Times, wrote that Sushi Yasuda, “with its devotion to sushi in its purist form, unalloyed with other Japanese cuisines or American twists, ... occupies a singular position in New York’s sushi landscape.” Eric Asimov, Quiet Please: Sushi Being Served, N.Y. Times, Nov. 16, 2011 at D8. He noted the restaurant “excelled back in 2000, and ... continues to meet its high standards.” But even three-star restaurants are not immune to wage and hour claims.

Plaintiffs Sakiko Fujiwara, Mayumi Im-oto, and Satoko Nagai (“Named Plaintiffs”) filed this action in December 2012 against Sushi Yasuda and its owners.2 The Named Plaintiffs were current and former wait staff of Sushi Yasuda. They alleged that wait staff, bussers, and sushi chefs were not paid minimum wage during their training period, premiums for overtime work, spread of hours premiums for days in which they worked over ten hours or a split shift, or the gratuities left by customers. Haruko Fujimoto, Kana Hara-yama, and Kiyoe Takada (together with the Named Plaintiffs, “Class Representatives”) joined the suit as FLSA opt-in plaintiffs shortly thereafter.

Not long after this suit was filed, Sushi Yasuda made a well-publicized decision to raise its prices and eliminate tipping. See Patrick McGeehan, Tip 15, 20 or 25 Percent? Here, They Strongly Suggest Zero, N.Y. Times, June 6, 2013, at A21. While most of the reportage emphasized the restaurant’s desire to follow Japanese customs and create a more pleasant customer experience, it appears this lawsuit may also have prompted the move. See Ryan Sutton, NYC’s Sushi Yasuda Eliminates Tipping. Gratuities No Long Accepted (Updated) [sic], The Price Hike, http:// thepricehike.com/post/52308734397/nycssushi-yasuda-eliminates-tipping-gratuitiesno (noting Sushi Yasuda’s owner stated “[t]he laws around tipping and how they’re divided get really convoluted and there aren’t really clear guidelines on how to tally it up”).

After taking initial discovery, Plaintiffs moved for class certification of their NYLL claims in September 2013. Before Sushi Yasuda filed any opposition, the parties entered mediation and settled in principle. They finalized the settlement in [431]*431April 2014, and this Court authorized notice to the class on May 14, 2014.

I.The Settlement

Defendants are paying $2.4 million to settle the case on a classwide basis.3 They are joining Plaintiffs’ motion to certify a class consisting of all persons who worked 90 days or more at Sushi Yasuda between December 3, 2006 and May 12, 2013 as sushi chefs, bussers, and/or wait staff. The parties originally proposed the $2.4 million settlement be distributed as follows:

1. $20,000 service awards to each of the six Class Representatives;
2. $800,000 in fees and costs to Plaintiffs’ counsel;
3. $100,000 to create an Administration & Errors fund; and
4. The remainder (“Net Settlement Fund”) to be distributed among class members.

After this Court questioned the magnitude of the proposed attorney’s fees award at the fairness hearing, Plaintiffs’ counsel reduced their request to $600,000. (ECF No. 52.) The portion to be distributed to the class is to be allocated pro rata based on the number of shifts worked by class members during the class period. For example, if the entire class worked a total of 100 shifts during the class period, and a class member worked 10 of those shifts, she would be entitled to one-tenth of the Net Settlement Fund. The number of shifts worked by Class Representatives is to be increased by 50% in calculating their awards.

. If a distribution check goes uncashed for six months, the settlement provides for funds to be allocated as follows:

1. Uncashed payments to Class Representatives will revert to Defendants;
2. Uncashed payments to class members who worked as sushi chefs will revert to Defendants; and
3. Half of any uncashed payments to any other class member will revert to Defendants, with the other half redistributed to participating class members on a pro rata basis, provided that no class member will receive more than 175% of his or her original share.

This Court reserves the right to modify this plan and will require the parties to file a report on the status of class payments and seek this Court’s approval before any uncashed funds revert to Defendants.

The Administration & Errors fund will cover any errors or omissions in distributing the settlement, and any amount remaining in the fund will be redistributed to participating class members. Defendants or the settlement administrator will report each settlement payment to the IRS and make appropriate withholdings.

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Bluebook (online)
58 F. Supp. 3d 424, 2014 WL 5840700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fujiwara-v-sushi-yasuda-ltd-nysd-2014.