Lebenns v. Frost Productions

Opinion

USDC SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: _ 4/22/2024 ANDREW LEBENNS, Plaintiff, 21-CV-11155 (BCM) -against- ORDER FROST PRODUCTIONS, et al., Defendants

BARBARA MOSES, United States Magistrate Judge. The parties having settled their dispute, including claims brought under the Fair Labor Standards Act (FLSA) and having thereafter consented to Judge Moses's authority for all remaining proceedings pursuant to 28 U.S.C. § 636(c); It is hereby ORDERED that all deadlines previously set in this action are vacated. It is further ORDERED that the parties shall submit, no later than May 6, 2024: (a) a joint letter demonstrating that their FLSA settlement is fair and reasonable and should be approved in light of the factors enumerated in Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335-36 (S.D.N.Y. 2012); (b) a copy of their written FLSA settlement agreement, executed by all parties, which will be placed on the public docket, see Wolinsky, 900 F. Supp. 2d at 335; and (c) counsel's retainer agreement(s), and time and expense records, to the extent necessary to support any award of attorneys’ fees and costs in connection with their FLSA settlement. The parties are cautioned that "it would be the very rare case, if any, where confidentiality terms in a settlement agreement would be appropriate in resolving a wage-and-hour lawsuit given the policy concerns underlying the FLSA.” Souza v. 65 St. Marks Bistro, 2015 WL 7271747, at *4 (S.D.N.Y. Nov. 6, 2015). This caution extends to so-called non-disparagement clauses, if such clauses prevent a plaintiff from making truthful statements concerning his employment, the lawsuit underlying the proposed settlement, or the settlement itself. See Weng v. T&W Rest., Inc., 2016

WL 3566849, at *4 (S.D.N.Y. June 22, 2016) (Moses, M.J.) (non-disparagement clause "must include a carve-out for truthful statements about [a plaintiff's] experience in litigating [his] case") (internal quotation marks omitted; modifications in original). The parties are further cautioned that courts in this district ordinarily refuse to approve FLSA settlements that include one-way or overbroad general releases. See, e.g., Lopez v. Poko-St. Ann L.P., 2016 WL 1319088, at *2 (S.D.N.Y. Apr. 4, 2016) (Moses, M.J.); Pinguil v. We Are All Frank, Inc., 2018 WL 2538218 (S.D.N.Y. May 21, 2018) (Moses, M.J.). The parties are further cautioned that this Court's fairness review "extends to the reasonableness of attorneys’ fees and costs." Fisher v. SD Protection, Inc., 948 F. 3d 593, 606 (2d Cir. 2020). Any proposed award of fees and costs must be memorialized in the written FLSA settlement agreement and supported by counsel's retainer agreement(s), and time and expense records, properly authenticated. Jd. at 600. In addition, the Court expects an explanation of the basis for the fee award. "[T]he most critical factor in determining the reasonableness of a fee award is the degree of success obtained.” Jd. at 606 (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)) (internal quotation marks omitted). Dated: New York, New York SO ORDERED. April 22, 2024

BARBARA MOSES it” United States Magistrate Judge