Amigon v. Safeway Construction Enterprises LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

ANTONIO AMIGON, Individually and On Behalf :

of All Others Similarly Situated, :

: DECISION AND ORDER

Plaintiff, :

: 20-CV-5222 (PK)

-against- :

:

SAFEWAY CONSTRUCTION ENTERPRISES, :

LLC and STEVEN CESTARO, Jointly and :

Severally, :

:

Defendants. :

:

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Peggy Kuo, United States Magistrate Judge:

Antonio Amigon (“Amigon” or “Plaintiff”) has filed a consent Motion for Preliminary

Approval of Class Action Settlement. (“Motion,” Dkt. 65.) The parties have consented to magistrate

judge jurisdiction. (Dkts. 69, 70.) For the reasons stated below, the Motion is granted.

BACKGROUND

I. Factual and Procedural Background

Plaintiff brought this action on October 29, 2020 against Safeway Construction Enterprises,

LLC (“Safeway”) and Steven Cestaro (“Cestaro”) (collectively, “Defendants”) alleging violations of

the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). (See Dkt. 1.)

Plaintiff filed an Amended Complaint on June 9, 2022 alleging he (along with others similarly situated)

was not paid the applicable prevailing rate of wages or supplemental benefits for all hours that he

worked on excavation projects on New York City public streets, roadways and sidewalks, or for time

spent traveling between job sites and Defendants’ yard and for time spent working in Defendants’

yard, resulting in significant unpaid regular and overtime wages. (Dkt. 41 at ¶ 2.) Plaintiff also alleges

that Defendants failed to provide Plaintiff with proper wage statements. (Id. at ¶ 4.) The Court

conditionally approved the FLSA collective asserted by Plaintiff. (January 23, 2022 Minute Entry and

Order.)

After mediation, the parties reached an agreement to settle this case. (Dkt. 62.) Plaintiff, with

Defendants’ consent, now requests preliminary approval of the proposed Settlement Agreement

(“Settlement Agreement,” Dkt. 68-1); approval of the proposed Notice of Proposed Settlement

(“Notice,” Dkt. 66-3), Claim Form (Dkt. 66-4), and Reminder Notice (Dkt. 66-5); and a date for a

final approval and fairness hearing. (“Pls. Mem.,” Dkt. 67 at 8-9.1)

II. The Settlement Agreement and Procedure

The Parties stipulate, for settlement purposes only, to the certification of a Fed. R. Civ. P.

23(a) and 23(b)(3) settlement class (“Settlement Class”) comprised of:

all current and former individuals who worked for Safeway in New York as backhoe

operators at any time during the period of March 15, 2014, through March 26, 2024.

(Settlement Agreement ¶ 1.7.) The “Class Period” is defined as the period between March 15, 2014,

through March 26, 2024. (Id. ¶ 1.8.)

Under the terms of the Settlement Agreement, in exchange for payment of a “Gross

Settlement Amount” not to exceed $3,000,000.00, Plaintiff agrees to release all claims against

Defendants. (Id. ¶¶ 1.18, 1.21.) “Participating Claimants,” or those who submit a claim form, release

all claims for any wage and hour violations that may have occurred arising from or relating to each

Participating Claimant’s employment or engagement with Defendants or related entities under federal,

New York State or local law. (Id. ¶¶ 1.27, 1.34.) Class members who do not submit a claim form

release all claims for any wage and hour violations that may have occurred arising from or relating to

each Class Member’s employment or engagement with Defendants or any related entities under New

York State or local law. (Id. ¶ 1.33.)

1 All page references are to ECF pagination unless otherwise noted.

The settlement amount, which will not exceed $3,000,000.00, plus all interest and accretions

(the “Settlement Fund”) will be used to pay service awards, attorneys’ fees, costs, and settlement

administration fees. (Declaration of Brent Pelton (“Affidavit”), Dkt. 66 ¶ 30.) Within ten days of

receiving preliminary approval of the settlement, Defendants will transfer $100,000.00 to the claims

administrator. Within thirty days after the final approval order, Defendants will transfer the remaining

$2,900,000.00 to the claims administrator as well. (Id. ¶ 31.) The parties have not yet agreed to

attorneys’ fees, although Plaintiff’s counsel will not seek more than one-third of the total Settlement

Fund. (Id. ¶ 41.) The parties have also preliminarily agreed to service awards for Plaintiff in the

amount of $10,000.00 and four other opt-in plaintiffs in the amount of $2500.00 each for a total of

$20,000.00 and a claims administrator fee limited to a maximum of $20,000.00. (Settlement

Agreement ¶¶ 1.37, 9.1(C).)

After these payments are made, the remaining “Net Settlement Amount” is to be distributed

to Participating Claimants who timely submit a valid claim form. (Id. ¶¶ 1.22, 1.27.) The share of each

Class Member is calculated with reference to Defendants’ business records as follows:

1) Each Class Member will receive one (1) point for each week worked during the Class Period.

2) Each Class Member will receive an additional 0.5 points for each workweek during the Class

Period in which he or she received a laborer pay rate.

3) Each Class Member’s points will be totaled and then divided by the aggregate number of

points accrued by all Participating Claimants to determine the percentage of the Net

Settlement Amount that he or she will receive.

4) For any Participating Claimant whose percentage of the Net Settlement Amount yields an

Individual Settlement Share of less than Five Hundred Dollars ($500.00), that person will

receive a guaranteed minimum payment of Five Hundred Dollars ($500.00) (the “Guaranteed

Minimum Payment”).

5) After subtracting from the Net Settlement Amount the total individual settlement shares of

all class members who would receive a Guaranteed Minimum Payment should they become

Participating Claimants, each remaining Class Member who would not be subject to a

Guaranteed Minimum Payment will have their previously calculated percentage multiplied by

the remainder of the Net Settlement Amount after the subtraction of all Guaranteed Minimum

Payments to determine the individual settlement share of each remaining Class Member.

(Id. ¶ 9.2(B).) Only claimants who submit a Claim Form will receive settlement proceeds. (Id. ¶

9.2(A).) Potential Settlement Class members may also exclude themselves from the Settlement Class,

thus preserving their claims against Defendants, or may object to the settlement. (Id.) Potential class

members who do not exclude themselves, object, or submit a Claim Form waive any claims they may

have against Defendants and may not participate in the settlement. (Id. ¶ 6.1-6.3.)

After receiving quotes from multiple claims administrators, CPT Group (the “Claims

Administrator”) was selected to administer notice of the settlement and the claims process. (Pls. Mem.

at 15.) Within fifteen days of this Order, Defendants will provide a finalized class member list to the

Claims Administrator. (Id. ¶¶ 1.6, 5.2.) Within seven days of receiving the finalized list, the Claims

Administrator will email and mail by registered mail the Notice and Claim Form to all identified class

members in both English and Spanish. (Id. ¶ 5.2(A).) The Claims Administrator will send the

Reminder Notice to the class members forty days after the initial notice is distributed. (Id. ¶ 1.36.)

Claimants must return the Claim Form or opt out within sixty days of the date the Claims

Administrator mails the Notice and Claim Form, subject to any good cause reason for delay. (Id. ¶

1.25, 6.2(A).)

The Claims Administrator will review the Claim Forms and distribute the Net Settlement

Amount to claimants pursuant to the formula outlined in Plaintiff’s Memorandum. (Pls. Mem. at

13-14.)

DISCUSSION

I. Preliminary Approval of Proposed Settlement Agreement

Class settlements under Federal Rule of Civil Procedure Rule 23 require court approval. Fed.

R. Civ. P. 23(e).

“A class action settlement approval procedure typically occurs in two stages: (1) preliminary

approval—where ‘prior to notice to the class, a court makes a preliminary evaluation of fairness,’ and

(2) final approval—where ‘notice of a hearing is given to the class members, [and] class members and

settling parties are provided the opportunity to be heard on the question of final court approval.’” In

re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11, 27 (E.D.N.Y. 2019)

(alteration in original) (quoting In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-CV-5450

(NRB), 2016 WL 7625708, at *2 (S.D.N.Y. Dec. 21, 2016)).

Under Rule 23(e), in considering a motion for preliminary approval of a proposed settlement,

a court must consider whether “giving notice is justified by the parties’ showing that the court will

likely be able to: (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of

judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B)(i)-(ii). Factors relevant to the Court’s decision

whether to approve a proposed class action settlement include “(1) adequacy of representation, (2)

existence of arm’s-length negotiations, (3) adequacy of relief, and (4) equitableness of treatment of

class members.” In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d 686, 692 (S.D.N.Y. 2019) (citing Fed.

R. Civ. P. 23(e)(2)).

Courts look to the nine “Grinnell factors to fill in any gaps and complete the analysis.”

Cymbalista v. JPMorgan Chase Bank, N.A., No. 20-CV-456 (RPK)(LB), 2021 WL 7906584, at *5

(E.D.N.Y. May 25, 2021) (collecting cases), R&R adopted, Order dated Nov. 22, 2021. These include:

(1) the complexity, expense and likely duration of the litigation; (2) the reaction

of the class to the settlement; (3) the stage of the proceedings and the amount

of discovery completed; (4) the risks of establishing liability; (5) the risks of

establishing damages; (6) the risks of maintaining the class action through the

trial; (7) the ability of the defendants to withstand a greater judgment; (8) the

range of reasonableness of the settlement fund in light of the best possible

recovery; (9) the range of reasonableness of the settlement fund to a possible

recovery in light of all the attendant risks of litigation.

City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (citations omitted), abrogated on other

grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); accord Charron v. Wiener, 731 F.3d

241, 247 (2d Cir. 2013).

Considering both the procedural and substantive factors set forth in Fed. R. Civ. P. 23(e)(2),

as well as the Grinnell factors, I find that the Court will likely be able to approve the parties’ proposed

settlement agreement as fair, reasonable, and adequate.

i. Rule 23(e)(2) Factors

In determining the adequacy of representation by class representatives and class counsel,

courts consider “whether (1) plaintiff’s interests are antagonistic to the interest[s] of other members

of the class and (2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.”

Mikhlin v. Oasmia Pharm. AB, No. 19-CV-4349 (NGG)(RER), 2021 WL 1259559, at *4 (E.D.N.Y. Jan.

6, 2021) (alteration in original) (quoting Cordes & Co. Fin. Servs. v. A.G. Edwards & Sons, Inc., 502 F.3d

91, 99 (2d Cir. 2007)).2 “An adequate class representative is one who has ‘an interest in vigorously

pursuing the claims of the class’ and ‘no interests antagonistic to the interests of other class members.’”

Id. (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)). “Courts find class counsel

qualified when they are experienced and ‘knowledge[able] in the area of complex class actions.’”

2 “Because this factor is ‘nearly identical to the Rule 23(a)(4) prerequisite of adequate representation in the class

certification context,’” the Court’s consideration of this factor is guided by Rule 23(a)(4) case law. Mikhlin,

2021 WL 1259559, at *4 n.3 (quoting In re Payment Card, 330 F.R.D. at 30 n.25).

Cymbalista, 2021 WL 7906584, at *5 (alteration in original) (quoting In re Payment Card, 330 F.R.D.

at 33).

The parties in this action seek preliminary approval of Plaintiff as representative of the

Settlement Class. (Pls. Mem. at 29.) The parties also seek preliminary approval of Pelton Graham

LLC, Plaintiff’s counsel, as class counsel. (Id. at 29, 32.)

Plaintiff is an adequate class representative and his interests are not antagonistic to those of

the Settlement Class members. Plaintiff has vigorously pursued the interests of the Settlement Class,

including assisting with the preparation of the initial complaint and the amended complaint, assisting

with the factual investigations of the claims, producing documents, providing information used in the

damages analysis, attending a deposition, and attending a mediation session. (Pls. Mem. at 10.) There

is no indication that his interests are in any way antagonistic to other class members. (Id. at 29.)

Furthermore, Pelton Graham LLC has “extensive experience litigating and settling wage and hour

cases and other employment cases” and “has expended significant time identifying, investigating, and

pursuing discovery of relevant information and settlement in this case in an effort to identify and

properly prosecute the claims on behalf of the affected individuals.” (Id. at 32.) As a result, this factor

weighs in favor of preliminary approval. Plaintiff is hereinafter referred to as the “Lead Plaintiff” and

Pelton Graham LLC is hereinafter referred to as “Lead Counsel.”

A class settlement “reached through arm’s-length negotiations between experienced, capable

counsel knowledgeable in complex class litigation . . . ‘enjoy[s] a presumption of fairness.’” In re GSE

Bonds, 414 F. Supp. 3d at 693 (quoting In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d

164, 173-74 (S.D.N.Y. 2000)); accord Mikhlin, 2021 WL 1259559, at *5.

The parties, counsel for whom are experienced and capable in this field, reached the settlement

after participating in a mediation session with mediator Martin F. Scheinman, Esq. (Pls. Mem. at 10.)

This factor weighs in favor of preliminary approval.

In evaluating whether the proposed settlement provides adequate relief for the class, the Court

considers: “(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed

method of distributing relief to the class, including the method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s fees, including the timing of payment; and (iv) any

agreement required to be identified under Rule 23(e)(3).” Fed. R. Civ. P. 23(e)(2)(C).

i. Costs, Risks, and Delay of Trial and Appeal – Fed. R.

Civ. P. 23(e)(2)(C)(i)

The first factor set forth under Rule 23(e)(2)(C), “the ‘costs, risks, and delay of trial and appeal,’

‘subsumes several Grinnell factors,’ including the complexity, expense and likely duration of litigation,

the risks of establishing liability, the risks of establishing damages, and the risks of maintaining the

class through trial.” Mikhlin, 2021 WL 1259559, at *5 (quoting In re Payment Card, 330 F.R.D. at 36);

accord Cymbalista, 2021 WL 7906584, at *6.

Courts favor settlement when it “results in ‘substantial and tangible present recovery, without

the attendant risk and delay of trial.’” In re Payment Card, 330 F.R.D. at 36 (quoting Sykes v. Harris, No.

09-CV-8486 (DC), 2016 WL 3030156, at *12 (S.D.N.Y. May 24, 2016) (citation omitted)). Class action

lawsuits “have a well-deserved reputation as being most complex.” Id. (quoting In re Sumitomo Copper

Litig., 189 F.R.D. 274, 281 (S.D.N.Y. 1999) (citation omitted)); see also Garland v. Cohen & Krassner, No.

08-CV-4626 (KAM)(RLM), 2011 WL 6010211, at *7 (E.D.N.Y. Nov. 29, 2011) (“Given the

complexity of any class action lawsuit . . . it is reasonable to assume that absent the instant Settlement,

continued litigation would have required extensive time and expense.”).

“In considering the risks of establishing liability, the court ‘need only assess the risks of

litigation against the certainty of recovery under the proposed settlement.’” Mikhlin, 2021 WL

1259559, at *5 (quoting In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 459 (S.D.N.Y. 2004)).

“Settlement is favored in cases in which ‘plaintiffs would have faced significant legal and factual

obstacles to proving their case.’” Id. (quoting In re Glob. Crossing, 225 F.R.D. at 459).

The parties have been engaged in substantial discovery and settlement negotiations. (Pls.

Mem. at 23.) Throughout the litigation, Defendants have strongly disputed liability for all damages

claimed by Plaintiff and have disputed the appropriateness of collective and class treatment. (Id. at

20.) Plaintiff has recognized the risks of establishing liability for all damages claimed by Plaintiff and

the appropriateness of collective and class treatment given that Defendants have strongly disputed

these factors throughout the litigation. (Id.) Plaintiff otherwise believes the Settlement Class could

have recovered up to $24,354,618.94. (Id.) Plaintiff also recognizes, however, that Defendants have

represented that their current financial status is dire and therefore recovery of any significant judgment

is uncertain. (Id. at 21.) In sum, the “costs, risks and delay of trial and appeal” are significant and

weigh in favor of preliminary approval of the proposed settlement. Fed. R. Civ. P. 23(e)(2)(C)(i). As

a result, I agree that the settlement represents a favorable outcome, and that in light of the claims and

defenses of the parties, the risks and uncertainties of litigation, and Defendants’ likely inability to pay

a higher judgment, the Grinnell factors suggest that the proposed settlement is fair, reasonable, and

adequate. (Id.)

ii. Effectiveness of Proposed Method of Distributing Relief

– Fed. R. Civ. P. 23(e)(2)(C)(ii)

A court must consider the effectiveness of the parties’ “proposed method of distributing relief

to the class, including the method of processing class-member claims.” Fed. R. Civ. P. 23(e)(2)(C)(ii).

“A plan for allocating settlement funds ‘need not be perfect[,]’” and “need only have a reasonable,

rational basis, particularly if recommended by experienced and competent class counsel.” Mikhlin,

2021 WL 1259559, at *6 (first quoting In re EVCI Career Colleges Holding Corp. Sec. Litig., No. 05-CV-

10240 (CM), 2007 WL 2230177, at *11 (S.D.N.Y. July 27, 2007); then quoting In re WorldCom, Inc. Sec.

Litig., 388 F. Supp. 2d 319, 344 (S.D.N.Y. 2005)).

The parties have outlined a proposed method of distributing relief to the class that is

reasonably and rationally based upon weeks worked by each class member. (See Settlement Agreement

¶ 9.2(B).) The proposed Notice describes the terms of the Settlement Agreement and provides clear

explanations of how to make a claim, opt out of the class, or object. (See, e.g., Notice at 2-3, 5-8.) The

distribution plan appears fair and equitable. This factor, therefore, weighs in favor of preliminary

approval.

iii. Terms of Proposed Award of Attorneys’ Fees, Including

Timing of Payment – Fed. R. Civ. P. 23(e)(2)(C)(iii)

“When analyzing the proposed settlement agreement for final approval, this Court will review

Plaintiffs’ application for attorneys’ fees, taking into account the interests of the class.” Hart v. BHH,

LLC, 334 F.R.D. 74, 79 (S.D.N.Y. 2020). One method for calculating attorneys’ fees, which is the

trend in this Circuit, is the “‘percentage of the fund’ method.” McGreevy v. Life Alert Emergency Response,

Inc., 258 F. Supp. 3d 380, 384 (S.D.N.Y. 2017). Under this method, the Court considers whether the

requested fees are reasonable as compared to the settlement amount. Id. at 385. Factors to consider

include fees awarded in similar cases, the risks to Class Counsel, and the lodestar calculation. Id. at

384 (citing Goldberger, 209 F.3d at 43).

Plaintiff and four “Opt-In Plaintiffs” will seek a total award of $20,000.00 to compensate them

for the services they provided in representing the class. (Id. at 18.) Plaintiff has not yet applied for

attorneys’ fees; however, Lead Counsel will not apply for an award representing more than one-third

of the total settlement amount. Since Lead Counsel have not yet submitted a fee application,

application for service award, or application for costs, the Court cannot assess the reasonableness of

the requested attorneys’ fees or service award until a motion for final settlement approval is filed.

This factor does not weigh against preliminary approval.

A court must consider whether the proposed settlement “treats class members equitably

relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). A court may consider “whether the apportionment

of relief among class members takes appropriate account of differences among their claims, and

whether the scope of the release may affect class members in different ways that bear on the

apportionment of relief.” Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment.

As stated supra, the method of distribution appears fair and reasonable. Other than the Service

Awards sought for Plaintiff and the four Opt-In Plaintiffs, the proposed Plan of Allocation treats all

claimants uniformly—each claimant will receive a pro rata distribution of the Net Settlement Amount

based on a formula that accounts for each claimant’s individual rate of pay received and weeks worked.

(Settlement Agreement ¶ 9.2(B).)

This factor weighs in favor of preliminary approval.

ii. Remaining Factors

The Grinnell factors not covered by Rule 23(e)(2)(C)(i) are the reaction of the class to the

settlement, the stage of the proceedings and the amount of discovery completed, the ability of the

defendants to withstand a greater judgment, the range of the settlement fund in light of the best

possible recovery, and the range of reasonableness of the settlement fund to a possible recovery in

light of all the attendant risks of litigation. A court’s consideration of the stage of the proceedings and

the amount of discovery completed “is intended to assure the Court ‘that counsel for plaintiffs have

weighed their position based on a full consideration of the possibilities facing them.’” In re Glob.

Crossing, 225 F.R.D. at 458 (quoting Klein ex rel. Ira v. PDG Remediation, Inc., No. 95-CV-4954 (DAB),

1999 WL 38179, at *2-3 (S.D.N.Y. Jan. 28, 1999)).

The Court cannot consider the class’s reaction to the proposed settlement until after notice

has been provided to the class. The Court is, therefore, unable to consider this factor at this stage of

the proceedings. See Mikhlin, 2021 WL 1259559, at *4 n.2; Caballero ex rel. Tong v. Senior Health Partners,

Inc., Nos. 16-CV-0326 (CLP), 18-CV-2380 (CLP), 2018 WL 4210136, at *11 (E.D.N.Y. Sept. 4, 2018).

With regard to the remaining factors, the parties have engaged in discovery and discovery

review, substantial investigation and prosecution of the claims, and substantial informal and formal

settlement negotiations. (Pls. Mem. at 23.) Defendants have represented that their current financial

status is dire. (Id. at 21.) The estimated best possible recovery for Plaintiff and the Settlement Class

is $24,354,618.94, including $10,571,054.51 in unpaid wages (id. at 20); the maximum settlement

amount is $3,000,000.00, approximately 12.32% of the best possible recovery or approximately

28.38% of the alleged unpaid wages. This Court has awarded similar percentages of the best possible

recovery in recent years. See, e.g., D’Angelo v. Hunter Bus. Sch., Inc., 2023 WL 4838156, at *7-8 (E.D.N.Y.

July 28, 2023) (granting final approval of a settlement fund of 5% of potential maximum damages);

Rosario v. EMZ Solutions LLC, 2020 WL 8413532, at *7 (E.D.N.Y. Aug. 7, 2020), rep. & rec. adopted,

2020 WL 7777955 (E.D.N.Y. Dec. 31, 2020) (granting preliminary approval of a settlement fund

representing approximately 22% of the maximum potential recovery, calculated without liquidated

damages or statutory penalties but before removing attorneys’ fees). As a result, the remaining Grinnell

factors weigh in favor of preliminary approval.

iii. Identification of Other Agreements

Rule 23(e)(3) requires the parties to identify “any agreement made in connection with the

proposal.” The parties represent that no agreements other than the proposed settlement agreement

have been entered into. (Affidavit at ¶¶ 23, 42.)

* * *

Having weighed the Rule 23(e)(2) and Grinnell factors, I find that the Court will likely be able

to approve the proposed settlement as fair, reasonable, and adequate.

II. Preliminary Certification of Rule 23 Settlement Class

Plaintiff moves to provisionally certify, with Defendants’ consent, a class for settlement

purposes comprised of:

all current and former individuals who worked for Safeway in New York as backhoe

operators at any time during the period of March 15, 2014, through March 26, 2024[.]

(Settlement Agreement ¶ 1.7.)

“The ultimate decision to certify the class for purposes of settlement cannot be made until the

hearing on final approval of the proposed settlement.” Fed. R. Civ. P. 23 advisory committee’s note

to 2018 Amendment. The Court may, however, grant preliminary approval when it will “likely be able

to . . . certify the class for purposes of judgment on the proposal.” In re Payment Card, 330 F.R.D. at

50 (omission in original) (emphasis removed) (quoting Fed. R. Civ. P. 23(e)(1)(B)(ii)).

To qualify for certification, a class must meet the prerequisites set forth in Rule 23 of the

Federal Rules of Civil Procedure. A plaintiff seeking certification under Rule 23 has the burden to

establish (1) numerosity, (2) commonality, (3) typicality, (4) adequacy of representation, (5) superiority

of the class action over other procedures, and (6) predominance. Mazzei v. Money Store, 829 F.3d 260,

270 (2d Cir. 2016); see Fed. R. Civ. P. 23(a), (b)(3). The Second Circuit has also recognized an implied

requirement of ascertainability. Brecher v. Republic of Arg., 806 F.3d 22, 24 (2d Cir. 2015) (“Like our

sister Circuits, we have recognized an ‘implied requirement of ascertainability’ in Rule 23 of the Federal

Rules of Civil Procedure” (citation omitted)); see McBean v. N.Y.C., 260 F.R.D. 120, 132-33 (S.D.N.Y.

2009).

To certify a class, a district court must definitively assess each class certification element and

find that each requirement is “established by at least a preponderance of the evidence.” In re U.S.

Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013) (quoting Brown v. Kelly, 609 F.3d 467, 476

(2d Cir. 2010)).

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). “[N]umerosity is presumed at a level of 40 members.” Consol.

Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). The parties estimate that the class is

composed of approximately ninety-one individuals. (Affidavit at ¶ 29.) Given that joinder of all

ninety-one members is presumptively impractical, the Court finds that numerosity is satisfied.

Under Rule 23(a)(2), there must be “questions of law or fact common to the class.” Fed. R.

Civ. P. 23(a)(2). The questions must be capable of “class[-]wide resolution—which means the

determination of its truth or falsity will resolve an issue that is central to the validity of each one of

the claims in one stroke.” Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 80 (2d Cir. 2015)

(alteration in original) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).

Plaintiff convincingly alleges that the proposed Settlement Class members share common

questions of law and fact regarding the class members regularly performing work for which they were

not compensated, being misclassified, being paid a laborer rate as opposed to a higher operating

engineer rate, and not being properly provided with wage notices and wage statements that included

all hours worked (as required by the NYLL). (Pls. Mem. at 28.) These types of common questions

are sufficient to satisfy commonality. See Lora v. To-Rise, LLC, 452 F. Supp. 3d 5, 11 (E.D.N.Y. 2019)

(commonality requirement satisfied where the class members shared the common issues of fact and

law concerning whether the defendants failed to pay them wages in violation of state wage and

hour laws).

The requirement for typicality is met “when each class member’s claim arises from the same

course of events, and each class member makes similar legal arguments to prove the defendant’s

liability.” Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001), abrogated on other

grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (quoting Marisol A. v. Giuliani, 126 F.3d 372, 376

(2d Cir. 1997)) (quotations omitted). “The commonality and typicality requirements often ‘tend to

merge into one another, so that similar considerations animate analysis’ of both.” Brown, 609 F.3d at

475 (quoting Marisol A., 126 F.3d at 376). “The crux of both requirements is to ensure that

maintenance of a class action is economical and that the named plaintiff’s claim and the class claims

are so interrelated that the interests of the class members will be fairly and adequately protected in

their absence.” Kaye v. Amicus Mediation & Arb. Grp., Inc., 300 F.R.D. 67, 78 (D. Conn. 2014) (quoting

Marisol A., 126 F.3d at 376 (alterations and citations omitted)).

Plaintiff’s claims are typical of the class. His claims, and the claims of each class member, arise

from Defendants not paying wages for all hours worked and overtime premiums as required by the

FLSA and NYLL, Defendants paying an improper rate for operator work, and not providing accurate

wage notices and wage statements. (Pls. Mem. at 28.) The claims are so interrelated that the class

claims will be fairly and adequately protected by Plaintiff. The typicality requirement is satisfied.

In assessing adequacy, “the primary factors are whether the class representatives have any

‘interests antagonistic to the interests of other class members’ and whether the representatives ‘have

an interest in vigorously pursuing the claims of the class.’” In re Patriot Nat'l, Inc. Sec. Litig., 828 F.

App’x 760, 764 (2d Cir. 2020) (quoting Denney, 443 F.3d at 268). “[A] class representative must be

part of the class and possess the same interest and suffer the same injury as the class members.”

Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997).

As discussed in Section I(B)(i)(a), supra, Plaintiff is an adequate representative of the class, and

the adequacy requirement is met.

The implied requirement of ascertainability demands “only that a class be defined using

objective criteria that establish a membership with definite boundaries.” In re Petrobras Sec. Litig., 862

F.3d 250, 264 (2d Cir. 2017). The putative class is easily ascertainable, as Plaintiff represents that

based on Defendants’ wage data records, there is a list of approximately ninety-one individuals who

comprise the putative class. (Affidavit at ¶ 29.)

Rule 23(b)(3) requires that “questions of law or fact common to class members predominate

over any questions affecting only individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

i. Predominance

The predominance requirement “tests whether proposed classes are sufficiently cohesive to

warrant adjudication by representation” and is achieved “if resolution of some of the legal or factual

questions that qualify each class member’s case as a genuine controversy can be achieved through

generalized proof, and if these particular issues are more substantial than the issues subject only to

individualized proof.” Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002) (quoting Amchem,

521 U.S. at 623).

Here, common issues predominate as all members of the Settlement Class suffered the same

alleged harms resulting from the same alleged misrepresentations, which are subject to generalized

proof and applicable to the entire class. The Settlement Class is thus sufficiently cohesive to meet the

predominance requirement.

ii. Superiority

Matters pertinent to superiority include:

(A) the class members’ interests in individually controlling the prosecution or

defense of separate actions; (B) the extent and nature of any litigation

concerning the controversy already begun by or against class members; (C) the

desirability or undesirability of concentrating the litigation of the claims in the

particular forum; and (D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). In assessing a settlement-only class certification, “a district court need not

inquire whether the case, if tried, would present intractable management problems,” because there will

not be a trial. Amchem, 521 U.S. at 620.

Concentrating the adjudication of the claims in the Eastern District of New York is a logical

and efficient use of judicial resources. The superiority requirement is met because a class action is

superior to alternative forms of adjudication of these claims.

* * *

For the foregoing reasons, the Court finds that preliminary certification of the Settlement Class

is warranted under Federal Rules of Civil Procedure 23(a) and 23(b)(3) because the Court will likely

be able to certify the class after the final approval hearing.

III. Distribution of the Class Notice and Notice Procedure

Once a court has determined that it will likely be able to approve the proposed settlement and

certify the class, it “must direct notice in a reasonable manner to all class members who would be

bound by the proposal . . . .” Fed. R. Civ. P. 23(e)(1)(B).

For Rule 23(b)(3) classes, “the court must direct to class members the best notice that is

practicable under the circumstances” which includes “individual notice to all members who can be

identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice “must clearly and

concisely state in plain, easily understood language” the following information:

(i) the nature of the action; (ii) the definition of the class certified; (iii) the class

claims, issues, or defenses; (iv) that a class member may enter an appearance

through an attorney if the member so desires; (v) that the court will exclude

from the class any member who requests exclusion; (vi) the time and manner

for requesting exclusion; and (vii) the binding effect of a class judgment on

members under Rule 23(c)(3).

Fed. Civ. P. 23(c)(2)(B).

“There are no rigid rules to determine whether a settlement notice to the class satisfies

constitutional or Rule 23(e) requirements . . . . Notice is ‘adequate if it may be understood by the

average class member.’” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005)

(quoting 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:53, at 167 (4th ed.

2002)). At the same time, “[c]ourts in this Circuit have explained that a Rule 23 Notice will satisfy due

process when it describes the terms of the settlement generally, informs the class about the allocation

of attorneys’ fees, and provides specific information regarding the date, time, and place of the final

approval hearing.” Mikhlin, 2021 WL 1259559, at *12 (quoting In re Payment Card, 330 F.R.D. at 58).

The proposed Notice includes a general explanation of how claimants’ settlement shares will

be calculated (Notice at 4); how claimants can submit their Claim Form, object to, or opt-out of the

settlement (id. at 5-8); and of the effects of claimants choosing to do nothing, submitting a Claim

Form, opting out, or objecting. (Id.) The Notice also provides a summary of the nature of the action

(id. at 2-3); explains that a class member may be heard at a fairness hearing (id. at 8); states that the

Court will exclude from the class any member who requests to be excluded from the settlement class

and provides the time and manner for making such a request (id. at 6-7); and explains the binding

effect of a class judgment on members who do not opt out. (Id. at 3.)

Within fifteen days of this Order, Defendants will provide a finalized class member list to

Plaintiff’s counsel and the Claims Administrator. (Settlement Agreement ¶ 5.2.) Within seven days

of receiving the finalized list, the Claims Administrator will email and mail by registered mail the

Notice and Claim Form to all identified class members in both English and Spanish. (Id. at ¶ 5.2(A).)

Claimants must return the Claim Form or opt out within sixty days of the date the Claims

Administrator mails the Notice and Claim Form, subject to any good cause reason for delay. (Id. at

¶¶ 1.4, 1.25)

Because the Notice, Reminder Notice, and notice procedure provide reasonable notice to

Settlement Class members and clearly and concisely state in plain, easily understood language the

requisite information, the Court approves the proposed Notice and notice procedure.

CONCLUSION

For the reasons stated above, the Motion is granted. Accordingly, it is hereby ORDERED

that:

(1) Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure and for the

purposes of settlement only, the Court preliminarily certifies a Settlement Class in this

action, consisting of all current and former individuals who worked for Safeway in New

York as backhoe operators at any time during the period of March 15, 2014 through

March 26, 2024. Excluded from the Settlement Class are any Settlement Class members

that validly and timely request exclusion in accordance with the requirements set forth in

the Notice and this Order.

(2) This Court preliminarily finds, for purposes of settlement only, that the prerequisites for a

class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have

been satisfied in that: (a) the number of Settlement Class members is so numerous that

joinder of all Settlement Class members is impracticable; (b) there are questions of law

and fact common to the Settlement Class; (c) the claims of Lead Plaintiff are typical of

the claims of the Settlement Class members he seeks to represent; (d) Lead Plaintiff will

fairly and adequately represent the interests of the Settlement Class; (e) questions of law

and fact common to the Settlement Class predominate over any questions affecting only

individual members of the Settlement Class; and (f) a class action is superior to other

available methods for the fair and efficient adjudication of this action.

(3) Pursuant to Rule 23 of the Federal Rules of Civil Procedure, for the purposes of settlement

only, (a) Lead Plaintiff Antonio Amigon is preliminarily certified as the class

representative on behalf of the Settlement Class; and (b) Pelton Graham LLC is

preliminarily certified as Lead Counsel for the Settlement Class, and is authorized to act

on behalf of the class representatives and other Settlement Class members, with respect

to all acts or consents required by or that may be given pursuant to the Settlement

Agreement, including all acts that are reasonably necessary to consummate the Settlement

Agreement.

(4) The Court preliminarily finds that the Settlement Agreement should be approved in that:

(a) the Settlement Agreement results from good faith, arm’s length negotiations, including

a mediation among Lead Plaintiff and Defendants under the direction of an experienced

mediator; (b) the relief provided to the Settlement Class is adequate; (c) the proposed

settlement treats Settlement Class members equitably relative to each other; and (d) the

proponents of the settlement are experienced in class-action securities litigation and had

sufficient information to evaluate the settlement.

(5) The Court substantially approves the form, substance, and requirements of the Notice

(Dkt. 72-2), Claim Form (Dkt. 72-4), and Reminder Notice (Dkt. 66-5). The parties will

update any dates and deadlines prescribed in the Notice, Claim Form, and Reminder

Notice to conform with those set forth in this Order.

(6) The Court approves the appointment of CPT Group as the Claims Administrator to

supervise and administer the notice procedure in connection with the proposed

settlement, as well as the processing of claims as more fully set forth below.

(7) Within fifteen (15) business days of this Order, Defendants will provide the Claims

Administrator and Lead Counsels, at no cost to Lead Plaintiff or the Settlement Class,

finalized class member lists as set forth in the Settlement Agreement.

(8) The Claims Administrator will cause a copy of the Notice and Claim Form to be mailed

by first class mail, postage prepaid, within seven (7) days of receiving the finalized class

member list, to all Settlement Class members in both English and Spanish.

(9) Within forty (40) days of the initial mailing of the Notice and Claim Forms to Settlement

Class members, the Claims Administrator will mail the Reminder Notice to all Settlement

Class members in both English and Spanish.

(10) The Court will hold a fairness hearing on April 29, 2025 at 10:30 a.m. at the United States

District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn,

New York 11201.

(11) In order to be entitled to participate in the Settlement Fund, in the event the settlement

is consummated in accordance with the terms set forth in the Settlement Agreement, each

Settlement Class member will take the following actions and be subject to the following

conditions:

a. Within sixty (60) calendar days after such time as set by the Court for the Claims

Administrator to mail the Notice and Claim Form to the Settlement Class, each

member claiming to be an authorized claimant will be required to submit to the

Claims Administrator a completed Claim Form, substantially in the form filed at

Dkt. 72-4 and as approved by the Court, signed under penalty of perjury. Claim

Forms will be timely submitted if they are postmarked (for U.S. Mail) or received

by the private carrier (for FedEx, UPS, etc.), or electronically by the Claims

Administrator, within sixty (60) calendar days after the time set by the Court for

the Claims Administrator to mail the Notice and Claim Form to the Settlement

Class.

b. As part of the submission of a Claim Form, each Settlement Class member shall

submit to the jurisdiction of the Court, with respect to the claim submitted, and

shall (subject to effectuation of the settlement) release all claims for any wage and

hour violations that may have occurred arising from or relating to each

participating claimant’s employment or engagement with Defendants or related

entities under federal, New York State or local law.

c. Lead Plaintiff and all Settlement Class members who have previously opted in to

the settlement will be deemed to be participating claimants and need not take any

further action to receive settlement funds.

(12) Any Settlement Class member who wishes to request exclusion from (i.e., “opt-out” of)

the Settlement Class must submit a written request for exclusion by First Class United

States Mail so that it is postmarked no later than sixty (60) calendar days after the

mailing of the Notice and Claim Form to Settlement Class members. As provided

in the Notice, such request for exclusion from the settlement will clearly indicate the

name, address, and telephone number of the member seeking exclusion, will indicate that

the member requests to be excluded from the Settlement Class, and must be signed by

the Settlement Class member. The request for exclusion will not be effective unless it is

made in writing within the time stated above, and the exclusion is accepted by the Court.

The Claims Administrator will send copies of each request for exclusion to Lead Counsel

and counsel for Defendants by email no later than three (3) days after receipt thereof.

Any Settlement Class member that submits a request for exclusion will have no rights

under the Settlement Agreement, will not be entitled to receive any payment out of the

Settlement Fund, and will not be entitled to object to the Settlement Agreement.

(13) The Court will consider objections to the Settlement Agreement, the plan for allocation

of the settlement funds, any application for attorneys’ fees or expenses, and any requests

for service awards from any Settlement Class member who does not request exclusion

from the Settlement Class. Any such member wanting to object must do so in writing

and may also appear at the fairness hearing.

a. Written objections and any supporting papers must be mailed to the Claims

Administrator via United States First Class Mail no later than sixty (60) calendar

days after the Notice and Claim Form is mailed to the Settlement Class.

Objections will be deemed timely if they are postmarked no later than sixty (60)

calendar days after the Notice and Claim Form is mailed. Any individual who

wishes to appear at the fairness hearing must affirmatively state so in his or her

written objection. A Settlement Class member who files a written objection does

not have to appear at the Settlement Hearing for the Court to consider the

objection.

b. The Claims Administrator will send copies of each written objection and any

supporting papers to counsel for Plaintiffs and counsel for Defendants by email

no later than three (3) days after receipt of the written objection.

c. If any Settlement Class members hire an attorney to represent them for the

purposes of making an objection, the attorney must both effect service of a notice

of appearance on counsel listed above and file it with the Court no later than

thirty (30) days before the fairness hearing.

d. Any Settlement Class members who do not make their objection in the manner

provided will be deemed to have waived such objection and will forever be

foreclosed from making any objection to the fairness or adequacy of the

Settlement Agreement, the plan for allocation of the settlement funds, any

application for attorneys’ fees and expenses, and any requests for service awards,

unless otherwise ordered by the Court.

e. The parties may file written responses to any timely filed objections

contemporaneously with the motion for final approval of the Settlement.

(14) The Claims Administrator, Defendants’ counsel, and Lead Counsel will promptly furnish

each other with copies of any and all objections from Settlement Class members that

come into their possession.

(15) The Claims Administrator will take all reasonable steps to obtain the correct address of

any Settlement Class member for whom the Notice and Claim Form are returned as

undeliverable.

(16) No later than thirty (30) days prior to the fairness hearing, Plaintiff will prepare and file a

Motion for Final Approval of the Settlement, which will also seek the payment of

attorneys’ fees and costs, settlement claims administration costs, and service awards. All

reply papers and/or briefs, including any in response to a filed objection, will be filed and

served at least seven (7) calendar days prior to the fairness hearing.

(17) Defendants will transfer an initial payment of One Hundred Thousand Dollars

($100,000.00) to the Claims Administrator no later than ten (10) days after issuance of this

Order. If the settlement is approved, Defendants will transfer the remaining amount of

Two Million Nine Hundred Thousand Dollars ($2,900,000.00) to the Claims

Administrator no later than thirty (30) days after such approval. Lead Plaintiff and

participating claimants will have one hundred and twenty (120) days after those payments

are distributed to cash their respective settlement checks. Participating claimants may

request a replacement if they show timely and good cause.

(18) The Court may approve the Settlement Agreement without modification, or with such

modifications as may be agreed to by Lead Plaintiff and Defendants, with or without

further notice, and may adjourn or continue the fairness hearing or hold the fairness

hearing via videoconference or telephone conference without further notice to the

Settlement Class. The Court may approve the Settlement Agreement regardless of

whether it has approved the plan for allocation of the settlement funds, any request for

attorneys’ fees and expenses, and any requests for service awards. The Claims

Administrator and Lead Counsel will cause any change to the date, time, or manner of

the fairness hearing to be notified to the Settlement Class members.

SO ORDERED:

Peggy Kuo

PEGGY KUO

United States Magistrate Judge

Dated: Brooklyn, New York

December 9, 2024