Ying v. All-Ways Forwarding of N.Y. Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------- x

JUSTIN YING, on behalf of all other persons :

similarly situated, :

:

Plaintiffs, : MEMORANDUM AND

: ORDER

:

-against- : 20-CV-6242 (ENV)(MMH)

:

ALL-WAYS FORWARDING OF N.Y. INC. f/k/a :

All Ways Forwarding of N.Y. Inc., f/k/a All Ways :

Forwarding International of N.Y., Inc., f/k/a All :

Ways Forwarding International Inc., ALL-WAYS :

FORWARDING INT’L INC., ALL-WAYS :

PACIFIC LLC, ALL-WAYS FORWARDING :

HOLDINGS LLC, SOLOMON WEBER, and :

DAVID PASKES, :

:

Defendants. :

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MARCIA M. HENRY, United States Magistrate Judge:

Named Plaintiff Justin Ying; Corporate Defendants (1) All-Ways Forwarding of N.Y.

Inc., formerly known as All Ways Forwarding of N.Y. Inc., All Ways Forwarding International

of N.Y., Inc., and All Ways Forwarding International Inc. (“All-Ways NY”), (2) All-Ways

Forwarding Int’l Inc. (“All-Ways Forwarding”), (4) All-Ways Pacific LLC (“All-Ways

Pacific”), and (5) All-Ways Forwarding Holdings LLC (“All-Ways Holdings”); and Individual

Defendants Solomon Weber and David Paskes negotiated a settlement of this class and

collective action arising under, inter alia, the Fair Labor Standards Act (the “FLSA”), 29

U.S.C. §§ 201 et seq. and the New York Labor Law (the “NYLL”), Art. 6 §§ 1 et seq. (See

generally Am. Compl., ECF No. 22.)1 Before the Court are the parties’ joint motions seeking:

(1) final approval of the class action and collective settlement; (2) approval of the class

representative’s service awards; and (3) approval of attorneys’ fees, administration fees, and

costs. (ECF Nos. 53, 56, 59). The parties consented to the undersigned’s jurisdiction to decide

these motions. For the reasons set forth below, the motions are granted in part and denied

in part.

I. BACKGROUND

A. Relevant Factual and Procedural History

All-Ways NY is a New York corporation with a principal office located at 182-30 150th

Road, Suite 230, Springfield Gardens, New York 11413. (Am. Compl., ECF No. 22 ¶ 9.) All-

Ways International and All-Ways Holding are New Jersey corporations both with their

principal office in Elizabeth, New Jersey. (Id. ¶¶ 12, 20.) All-Ways Pacific is a California

corporation with a principal office located in La Mirada, California 90638. (Id. ¶ 17.) The

Corporate Defendants’ Forwarding Division “delivers end-to-end cargo solutions from point

of manufacture to point of sale . . . using ‘oceangoing shipping,’” including shipping and

receiving goods through the Port of Long Beach and JFK Airport. (Id. ¶¶ 26–27.) At all

relevant times, Weber was the Chief Executive Officer and a director of All-Ways NY; the

President, CEO, and registered agent in California for All-Ways International; and an

officer/member/manager/partner of All-Ways Pacific. (Id. ¶¶ 29, 31.) Paskes was the Vice

President of All-Ways NY. (Id. ¶ 34.) In these roles, Weber and Paskes had authority to hire

and fire employees of the Corporate Defendants, determine employee’s work schedules, rates

1 All citations to documents filed on ECF are to the ECF document number and pagination in the

ECF header unless otherwise noted.

and methods of payment, and keep employee records. (Id.) Ying was employed by the

Corporate Defendants from approximately March 15, 2018 through October 21, 2020, in the

Logistics Department at All-Ways NY’s principal office. (Id. ¶ 61.)

On December 24, 2020, Ying commenced this collective and class action, on behalf of

himself and all other “and former non-exempt employees who have been or were employed by

Defendants,” alleging that Defendants and individuals Paul Selvage, Ezra Danziger, and Paul

Reisz (1) failed to pay overtime wages in violation of the FLSA, the NYLL, the New Jersey

Wage and Hour Law (“NJWHL”), and the California Labor Code (“CLC”); and (2) failed to

pay the spread of hours premium and to provide wage notices and wage statements in violation

of the NYLL. (See generally Compl., ECF No. 1.) Plaintiff amended his Complaint on April

9, 2021, omitting all claims against Selvage, Danziger, and Reisz and the spread of hours

claim. (See generally Am. Compl., ECF No. 22.) On June 2, 2021, the Court entered a

discovery scheduling order over Defendants’ objections. (June 2, 2021 Order.)

In July 2021, Defendants moved to dismiss the Amended Complaint. (ECF No. 31.)

While Defendants’ motion to dismiss was pending, the parties initially disputed the scope of

class and collective action discovery. (ECF Nos. 34–35; Dec. 10, 2021 Min. Entry.) On

January 19, 2022, Plaintiff requested leave to seek conditional collective action certification,

which Defendants opposed. (ECF Nos. 36–37.) Subsequently, the parties negotiated a

stipulation defining the scope of the proposed collective action, agreeing to seek leave for

notice to the putative collective, and scheduling a mediation. (ECF No. 41.) During a

mediation session on May 20, 2022 before mediator Martin Scheinman of Scheinman

Arbitration & Mediation Services, the parties reached a class-wide settlement as to Ying and

54 other non-exempt, non-managerial employees who were employed by All-Ways NY during

a nearly eight-year period. (Mediation Status R., ECF No. 42 at 1; Troy Decl. for Final

Approval, ECF No. 54 ¶ 50.) Pursuant to the settlement terms, the parties also agreed that the

claims against All-Ways International, All-Ways Holding, All-Ways Pacific, Weber, and

Paske would be dismissed with prejudice. (Mediation Status R., ECF No. 42 at 1.)

In July 2022, the parties jointly moved for an order (1) granting preliminary approval

of the class settlement; (2) conditionally certifying a settlement class pursuant to Fed. R. Civ.

P. 23(b)(3) and so-ordering the collective action pursuant to 29 U.S.C. § 216(b); (3) approving

of the Notice of Proposed Settlement and Class Action Lawsuit and Fairness Hearing (“Class

Notice”); (4) appointing John Troy, Aaron Schweitzer, and Tiffany Troy of Troy Law, PLLC

(“Troy Law”) as Class counsel; and (6) appointing Arden Claims Services, LLC as the claims

administrator. (ECF No. 46 at 4.) The Court requested, and Plaintiff submitted, supplemental

briefing regarding Plaintiff’s attorneys’ fees and damages calculation. (See Jan. 23, 2023

Order; ECF No. 47.) The Court granted the parties’ joint motion in August 2023 and scheduled

a fairness hearing for December 2023. (Aug. 24, 2023 Order, ECF No. 51.)

In November 2023, the parties filed the instant motions for final approval of the class

settlement, approval of service awards, and approval of the attorneys’ fees. (See ECF Nos. 53,

56, 59.) The parties consented to magistrate judge jurisdiction to decide the motions. (ECF

Nos. 63, 66.) The Court held a fairness hearing on December 7, 2023 and reserved decision.

(Dec. 7, 2023 Min. Entry; see generally Dec. 7, 2023 Hr’g Tr., ECF No. 64 (“Tr.”).)

Thereafter, the Court granted Plaintiff leave to supplement the motions to address the parties’

compliance with the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715(b). (ECF

Nos. 69–70; Nov. 29, 2024 Order.) To date, no Class members have filed objections to the

Agreement.

B. Settlement Terms

The Settlement Agreement (the “Agreement”) defines the Settlement Class (the

“Class”) as “Named Plaintiff and the current and former non-exempt employees who worked

overtime and were employed by AW NY from December 24, 2014 to March 4, 2022 as

identified on Exhibit A attached hereto.”2 (Settlement Agt., ECF No. 45-1 ¶ 1.4.) The

Agreement also establishes a Settlement Fund of $775,000.00, “the maximum aggregate

amount that can be paid by Defendants pursuant to this Agreement and includes any service

awards and professional fees (which includes attorneys’ fees and claims administrator fees),

costs, and expenses.” (Id. ¶ 1.27.) Defendants will deposit the Settlement Fund into an account

set up by the Administrator by 30 days after the Final Effective Date, defined as 35 days after

the Court’s final approval of the settlement and any applicable time to appeal. (See id. ¶¶ 1.12,

3.1(C).)

Members of the Class will receive proportionate shares of the Settlement Fund based

on the number of weeks they worked for All-Ways NY during the relevant period. (Id.

¶ 3.1(A)(1).) The Administrator will mail settlement checks to the Class Members within ten

business days after Defendants fund the Settlement Account. (Id. ¶ 3.1(C).) If Class members

do not cash their checks after 180 days of receipt, those amounts and all other amounts

remaining in the Settlement Fund will be void and returned to Defendants. (Id. ¶ 3.1 (F).)

In addition to the payments to Class members, the Agreement also contemplates the

following awards to be paid out of the Settlement Fund, subject to Court approval: (1)

attorneys’ fees “not to exceed $258,333.33” and “litigation expenses and costs up to

2 Exhibit A identified 55 Class members. (See Settlement Agt. Ex. A., ECF No. 45-1 at 21–22.)

$3,000.00”; (2) administration fees “not to exceed $20,000”; and (3) a service award to Ying,

the Named Plaintiff, of $30,000.00 (Id. ¶¶ 3.1(B), 3.2 & 3.3.)

Upon the issuance of the final approval order granting the motion for settlement, a Class

member who does not opt-out of the Agreement fully releases and discharges Defendants of

all wage and hour claims under the FLSA and NYLL and other actions that could have been

brought. (See id. ¶ 4.1.)

C. Notice to the Class

The Settlement Administrator mailed the Class Notice and Class Member Address

Update Form (“Notice Packet”) to 55 Class members contained in the Class list provided by

Defendants via First Class Mail. (Peek Revised Decl., ECF No. 62-1 ¶¶ 5–6.) Five notice

packets were originally returned by the post office, but two of them were re-mailed to the

forwarding addresses and received, and two of them were re-mailed and received after the

Settlement Administrator performed due diligence to locate the most recent addresses of the

two Class members. (Id. ¶ 7.) The Settlement Administrator emailed the notice packets to

three Class members (at their request) after their original notice packets were returned. (Id.)

Accordingly, all the Class members received the notice packet. (Id. ¶ 8.) The Court-approved

notice packet “advised Class members of their right to opt-out from or object to the Settlement

and the implications of each such action” as well as informed the Class of “applicable deadlines

and other events, including the date and location of the Fairness Hearing.” (Id. ¶ 4.) To date,

no Class Member has objected and only one Class Member opted out of the settlement. (Peek

Revised Decl., ECF No. 62-1 ¶¶ 8–10; Tr. 8:17–19.)

II. LEGAL STANDARD

“The claims, issues, or defenses of a certified class may be settled, voluntarily

dismissed, or compromised only with the court’s approval.” Fed. R. Civ. P. 23(e). To grant

final approval of a class action settlement under Rule 23(e), the Court must determine that the

proposed settlement is “fair, adequate, and reasonable, and not the product of collusion.”

Faroque v. Park W. Exec. Servs., No. 15-CV-6868 (DLI)(CLP), 2020 WL 9812905, at *3

(E.D.N.Y. Jan. 29, 2020) (citing Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000)); Fed.

R. Civ. P. 23(e)(2). “Whether a settlement is fair is a determination within the sound discretion

of the court.” Id. (citing Levitt v. Rodgers, 257 F. App’x 450, 453 (2d Cir. 2007)).

“Before approving a class settlement agreement, a district court must first determine

whether the requirements for class certification in Rule 23(a) and (b) have been satisfied.”

Berni v. Barilla S.p.A., 964 F.3d 141, 146 (2d Cir. 2020) (citing In re Am. Int’l Grp., Inc. Sec.

Litig., 689 F.3d 229, 238 (2d Cir. 2012)). “Thus, a proposed settlement class must satisfy all

the requirements for class certification under Rule 23, meaning that (1) all the prerequisites of

Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—must be

met; and (2) at least one of the three requirements of Rule 23(b) must be met.” McLaughlin v.

IDT Energy, No. 14-CV-4107 (ENV)(RML), 2018 WL 3642627, at *4 (E.D.N.Y. July 30,

2018) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011)).

Once the threshold Rule 23(a) and (b) requirements are satisfied, the Court considers

whether the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). “Courts

evaluating the fairness, reasonableness, and adequacy of a proposed settlement must consider

the four factors outlined in Rule 23(e)(2) holistically, taking into account – among other

substantive considerations stated in the rule – the proposed attorneys’ fees and incentive

awards.” Moses v. New York Times Co., 79 F.4th 235, 243 (2d Cir. 2023). The first two factors

are procedural in nature: that is, adequate representation of the class and arm’s length

negotiations. Id. at 242 (citing Fed. R. Civ. P. 23(e)(2)(A)–(B)). The latter two guide the

substantive review of a proposed settlement: adequacy of relief and equitable treatment. Id. at

242–43 (citing Fed. R. Civ. P. 23(e)(2)(C)–(D)); see also Schutter v. Tarena Int’l, Inc., No. 21-

CV-3502 (PKC), 2024 WL 4118465, at *6 (E.D.N.Y. Sept. 9, 2024).

III. DISCUSSION

A. Final Class Certification3

As set forth below, the Court finds that the requirements under Rule 23(a) and 23(b)(3)

have been satisfied and therefore certifies the proposed class.

1. Rule 23(a) Requirements

a. Numerosity

First, the parties have demonstrated that the class is so numerous that joinder of all

members is impracticable. Fed. R. Civ. P. 23(a)(1). “Numerosity is presumed when the class

is at least 40 members.” Flores v. CGI Inc., 2022 WL 13804077 at *3, No. 22-CV-350 (KHP)

(S.D.N.Y. Oct. 21, 2022) (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483

(2d Cir. 1995)). While plaintiffs need not provide a precise quantity, they “‘must show some

evidence of or reasonably estimate the number of class members.’” Zhu v. Wanrong Trading

Corp., No. 18-CV-417 (ENV)(MMH), 2024 WL 4351357, at *4 (E.D.N.Y. Sept. 30, 2024),

adopted by Order Adopting R. & R., Zhu v. Wanrong Trading Corp., No. 18-CV-417

3 The joint motion papers do not address the relevant Rule 23(a) and Rule 23(b)(3) factors, but

counsel responded to the Court’s questions about the factors at the fairness hearing. (Tr. 14:2–

20.)

(ENV)(MMH) (E.D.N.Y. Feb. 27, 2025) (quoting Kalkstein v. Collecto, Inc., 304 F.R.D. 114,

119 (E.D.N.Y. 2015)). Here, the Class consists of 55 unique members, which Defendants

identified following class certification and preliminary settlement approval. (Peek Revised

Decl., ECF No. 62-1 ¶¶ 5–6, 8.) As such, numerosity is easily satisfied here. See Pagano v.

HN & Sons LLC, No. 22-CV-4897 (BMC), 2024 WL 4625296, at *2 (E.D.N.Y. Oct. 30, 2024)

(“[P]laintiffs have identified 54 employees affected by defendants’ compensation practices in

just the final three years of the class period, which certainly justifies a ‘reasonbl[e] estimate’

that the class size over the entire six-year period will exceed 40 persons.”).

b. Commonality

Second, Plaintiff meets the commonality requirement of Rule 23(a)(2) because there

are questions of law or fact common to the Class. Fed. R. Civ. P. 23(a)(2). “‘Commonality

requires the plaintiff to demonstrate that the class members have suffered the same

injury. . . . Their claims must depend on a common contention . . . of such a nature that it is

capable of classwide resolution—which means that 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.’”

McLaughlin, 2018 WL 3642627, at *7 (quoting Wal-Mart Stores, Inc., 564 U.S. at 349–50).

Ying and the Class Members allege several common factual and legal issues, including

whether, inter alia, Defendants maintained a policy, pattern, and/or practice of (i) refusing to

pay overtime compensation; (ii) failing to pay spread-of-hours pay; (iii) failing to provide

requisite statutory meal periods, and (iv) failing to provide wage statements and wage notices.

(Am. Compl., ECF No. 22 ¶¶ 2, 59, 90, 99.) These alleged wage and hour violations involve

common operative facts stemming from Defendants’ policies that affected the Class members

in the same way. See, e.g., Hernandez v. Immortal Rise, Inc., 306 F.R.D. 91, 98 (E.D.N.Y.

2015) (plaintiffs established commonality and typicality when all class members’ claims all

arise from the same violations of the FLSA and NYLL relating to failure to pay back pay,

minimum, and overtime wages). Accordingly, Rule 23(a)(2)’s commonality requirement has

been met.

c. Typicality

Similarly, Plaintiff demonstrates typicality, which requires that “the claims or defenses

of the representative parties are typical of [those] of the class.” Fed. R. Civ. P. 23(a)(3).

Typicality “is satisfied 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.”

Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997); see also Pickard v. OnSite Facility

Servs., LLC, No. 5:22-CV-207 (AMN/ML), 2023 WL 7019256, at *4 (N.D.N.Y. Oct. 25,

2023) (“Typicality requires that a class representative have ‘the incentive to prove all the

elements of the cause of action which would be presented by the individual members of the

class were they initiating individualized actions.’”). “‘[M]inor variations in the fact patterns

underlying [the] individual claims’ do not preclude a finding of typicality.” Flores, 2022 WL

13804077, at *3 (quoting Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir. 1993)). Ying

and the Class members all allege the same violations of the FLSA and NYLL arising out of

their employment at All-Ways NY. (Am. Compl., ECF No. 22 ¶¶ 53–54.) Further, the fact

that Ying and other workers are in different departments does not preclude a finding of

typicality, because Defendants’ workers across the Logistics, Brokering, and Accounting

departments claimed that Defendants failed to pay them overtime when they worked over 40

hours in a workweek. (See Tr. 14:6–20.) Therefore, Plaintiff’s claims are typical of those of

the Class.

d. Adequacy

Finally, Plaintiff must show that named Plaintiff will “fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). “In order to meet the final requirement,

adequate representation of the class’s interests, Plaintiffs must demonstrate that: (1) the class

representatives do not have conflicting interests with other class members; and (2) class

counsel is qualified, experienced and generally able to conduct the litigation.” Emeterio v.

A&P Rest. Corp., No. 20-CV-970 (KHP), 2022 WL 274007, at *4 (S.D.N.Y. Jan. 26, 2022)

(citing Marisol A., 126 F.3d at 378). There are no conflicting interests here: the named Plaintiff

and other Class members are similarly situated workers employed at All-Ways NY who were

subject to the same allegedly unlawful wage payment practices and seek similar damages.

D’Angelo v. Hunter Bus. Sch., Inc., No. 21-CV-3334 (JMW), 2023 WL 4838156, at *3

(E.D.N.Y. July 28, 2023). Moreover, Plaintiff’s counsel has substantial experience in state

and federal wage and hour litigation generally and class and collective actions. (See generally

Troy Decl. for Final Approval, ECF No. 54 ¶¶ 6–33.) Because Plaintiff will fairly and

adequately protect the interests of the Class, the adequacy requirement has been met.

2. Rule 23(b)(3) Requirements

As relevant here, Plaintiff also satisfies the Rule 23(b)(3) requirement that “the

questions of law or fact common to class members predominate over individual questions 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); see Amchem Prod., Inc. v. Windsor, 521 U.S. 591,

615 (1997) (“Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages

designed to secure judgments binding all class members save those who affirmatively elected

to be excluded.”). “Together, the predominance and superiority requirements were designed

to cover cases in which a class action would achieve economies of time, effort, and expense,

and promote uniformity of decision as to persons similarly situated.” Gonzalez v. Hanover

Ventures Marketplace LLC, No. 21-CV-1347 (ER), 2024 WL 1157074, at *6 (S.D.N.Y. Mar.

18, 2024) (cleaned up). Plaintiff satisfies both 23(b)(3) requirements.

“The ‘predominance’ requirement asks 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.’” Hernandez, 306 F.R.D. at 98 (quoting UFCW Local

1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir. 2010)). “Here, common issues predominate

as all members of the [s]ettlement Class suffered the same alleged harms resulting from the

same alleged [failure to pay overtime wages and failure to issue wage notice and statements],

which are subject to generalized proof and applicable to the entire class. The [s]ettlement

Class is thus sufficiently cohesive to meet the predominance requirement.” Amigon v. Safeway

Constr. Enterprises, LLC, No. 20-CV-5222 (PK), 2024 WL 5040436, at *9 (E.D.N.Y. Dec. 9,

2024).

Rule 23(b)(3) also requires that a class action must be a “superior method” to individual

litigation. The rule considers factors such as: (A) the class members’ interests in individually

controlling separate actions, (B) the extent and nature of any litigation already begun, (C) the

desirability of concentrating litigation in a particular forum, and (D) the difficulties in

managing a class action. Vasquez v. A+ Staffing LLC, 746 F. Supp. 3d 26, 50–51 (E.D.N.Y.

2024) (citing Fed. R. Civ. P. 23(b)(3)(A)–(D)). “The Court must conclude that ‘a class action

would achieve economies of time, effort, and expense, and promote uniformity of decision as

to persons similarly situated, without sacrificing procedural fairness or bringing about other

undesirable results.’” Id. (quoting Brown v. Kelly, 609 F.3d 467, 483 (2d Cir. 2010)). Given

the Class Members’ presumably limited financial resources and the relatively small value of

each Class member’s claim, they have a strong interest in proceeding as a class action than in

individual lawsuits. (See Tr. 13:17–25 (noting average class members’ payments as

approximately $8,630.30 each); see also Peek Revised Decl., ECF No. 62-1 ¶ 13 (calculating

highest gross payment of $24,408.56).) Without this mechanism, the Class members may not

be afforded the same meaningful recovery. With respect to the second factor, Plaintiff has not

indicated that there is another pending litigation related to the same claims brought under this

action. Further, because all alleged unlawful conduct occurred at All-Ways NY located in

Jamaica, New York, concentrating the litigation in the Eastern District of New York is highly

desirable. Finally, neither Plaintiffs nor Class counsel, who has substantial experience in

managing FLSA class actions in this district, has expressed any particular difficulty in

managing this action. Based on these considerations, the Court finds that the certification of

this Class will conserve judicial time and resources and promote uniformity in decisions by

avoiding piecemeal litigation of 55 separate cases. See Brown, 609 F.3d at 483. Therefore,

proceeding as a class action is the superior method.

B. Class Settlement Approval

Finally, Rule 23(e) requires court approval for a class action settlement to ensure that

it is procedurally and substantively fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2).

After careful review, the Court concludes that final approval of the class action settlement is

appropriate.4

4 The Court is authorized to award final approval of the settlement because all relevant federal and

state officials have been served with notice of the settlement, pursuant to CAFA. See 28 U.S.C.

1. Procedural Fairness

“To evaluate the procedural fairness of a proposed settlement, a court must expressly

consider the two factors under Rules 23(e)(2)(A)–(B): whether ‘the class representatives and

class counsel have adequately represented the class’ and whether ‘the proposal was negotiated

at arm’s length.’” Schutter, 2024 WL 4118465, at *7 (quoting Fed. R. Civ. P. 23(e)(2)(A)–

(B)).

First, as to Rule 23(e)(2)(A), the Court assesses “whether: 1) Lead Plaintiffs’ interests

are antagonistic to the interests of the other members of the class and whether 2) Lead Counsel

are qualified, experienced and able to conduct the litigation such that Lead Plaintiffs have

manifested their interest in vigorously pursuing class claims.” In re Tenaris S.A. Sec. Litig.,

No. 18-CV-7059 (KAM)(SJB), 2024 WL 1719632, at *4 (E.D.N.Y. Apr. 22, 2024) (cleaned

up). The Court has already found adequacy of the Class representative and Class counsel in

the Rule 23(a)(4) analysis. (See § III.A.1.d., supra.) “Given the similarity of the analyses

regarding adequacy under Rule 23(e)(2)(A) and Rule 23(a)(4), the Court finds that the class

§ 1715(d); Perez v. Jupada Enters., Inc., No. 10-CV-3118 (JMF), 2012 WL 3042928, at *2

(S.D.N.Y. July 25, 2012). And while Defendants mailed the CAFA Notices to the relevant officials

more than 10 days after the parties filed their joint motion for the Court’s preliminary approval of

the parties’ proposed settlement (see Troy Decl. for CAFA Notice, ECF No. 70 ¶¶ 6–8 5; id. Exs.

2–4, ECF Nos. 70-2 to 70-4; ECF No. 44), courts in this Circuit have deemed the CAFA

requirements satisfied with comparable or longer periods of delay. See, e.g., Flores v. CGI Inc.,

No. 22-CV-350 (KHP), 2022 WL 12399285, at *2 (S.D.N.Y. Oct. 21, 2022) (notices mailed over

one month after motion); Sanchez v. Kambousi Rest. Partners, LLC, No. 15-CV-5880 (CM)(HBP),

2016 WL 11717105, at *2 (S.D.N.Y. Aug. 5, 2016) (notices mailed 12 days after motion);

Cunningham v. Cornell Univ., No. 16-CV-6525 (PKC), 2020 WL 8212936, *2 (S.D.N.Y. Dec. 22,

2020) (notices mailed less than two months after motion); Story v. SEFCU, No. 18-CV-764

(MAD(DJS), 2021 WL 736962, at *2 (N.D.N.Y. Feb. 25, 2021) (notices mailed nearly three

months after motion).

representative[] and Class Counsel provided adequate representation to the putative classes

under Rule 23(e)(2)(A).” Schutter, 2024 WL 4118465, at *7.

Second, applying Rule 23(e)(2)(B), “[b]eing familiar with the strengths and weaknesses

of each side’s case and the risks posed by continued litigation, this Court is of the view that

the settlement was the product of arms-length negotiations.” Faroque, 2020 WL 9812905, at

*4. The parties reached settlement after substantial exchange of documents and extensive

negotiations over nearly one year. Class counsel conducted a thorough investigation, including

interviews with Ying and legal research on the class claims’ merits, the likelihood of successful

class certification, and the proper measure of damages. (Troy Decl. for Final Approval, ECF

No. 54 ¶¶ 37–39.) Defendants produced over 2,100 pages of payroll documents for the 55

Class Members that formed the basis for the proposed damages calculation. (Id. ¶ 42.) The

parties also participated in a full-day private mediation session and exchanged detailed

mediation statements, ultimately reaching a class-wide settlement. (Id. ¶¶ 49–52.) The record

amply reflects all counsel’s exhaustive efforts to represent the interests of their clients through

substantial discovery and arms-length negotiations. Flores, 2022 WL 13804077, at *6.

Accordingly, the Court finds that the process of reaching the class settlement in this

case was procedurally fair.

2. Substantive Fairness

To evaluate the substantive fairness of a settlement, the Second Circuit historically

enumerated nine factors (known as the “Grinnell factors”):

(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; and (9) the range of

reasonableness of the Settlement Fund to a possible recovery in light of all the attendant

risks of litigation.

Flores, 2022 WL 13804077, at *6 (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463

(2d Cir. 1974)). More recently, the Second Circuit clarified that courts must “expressly

consider two core factors when reviewing the substantive fairness of a settlement: the adequacy

of relief provided to a class and the equitable treatment of class members.” Moses, 79 F.4th at

244 (citing Fed. R. Civ. P. 23(e)(2)(C)–(D)). “In particular, such evaluation must be conducted

in tandem with reviewing the appropriateness of the proposed attorneys’ fees and incentive

awards encompassed in the settlement agreement.” Schutter, 2024 WL 4118465, at *8.

a. Adequacy of Class Relief

To assess whether a proposed settlement provides adequate relief for the putative class

under Rule 23(e)(2)(C), the Court takes into account: “(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, if required; (iii) the terms of any

proposed award of attorneys’ fees, including 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

The first Rule 23(e)(2)(C) factor, “the costs, risks, and delay of trial and appeal,” largely

overlaps with several Grinnell factors, including the complexity, expense, and likely duration

of the litigation, the risk of establishing lability and damages, and the risks of maintaining the

class action through the trial. (i.e., Grinnell factors 1, 4, 5, and 6, respectively). See Vasquez,

746 F. Supp. 3d 26 at 55 (quoting Mikhlin v. Oasmia Pharm. AB, No. 19-CV-4349 (NGG)

(RER), 2021 WL 1259559, at *7 (E.D.N.Y. Jan. 6, 2021)); Schutter, 2024 WL 4118465, at *8.

Class counsel recognizes the significant risk “because of the fact-intensive nature of

proving liability under the FLSA and the NYLL, and in light of Defendants’ available

defenses.” (Mem. for Final Approval, ECF No. 55 at 12.) Counsel also understands that

maintaining a class through trial would not be simple because there is a significant risk that

the Court may decertify the Class upon experienced defense counsel’s motion practice. (Mem.

for Final Approval, ECF No. 55 at 13; Tr. 12:4–9.) Such “[c]ontested collective and class

certification motions would likely require extensive discovery and briefing.” Viafara v. MCIZ

Corp., No. 12-CV-7452 (RLE), 2014 WL 1777438, at *7 (S.D.N.Y. May 1, 2014). Class

counsel further recognizes the risk of “additional expense and delay via a complicated trial”

and, given the history of the parties’ disputes in the litigation, Defendants’ likely appeal if

Plaintiffs recover at trial. (Mem. for Final Approval, ECF No. 55 at 9–10.) Similarly, as noted

in the motion and stated at the fairness hearing, Defendants vigorously contest the allegations

but “are interested in putting [this case] behind them. Uncertainty of litigation, cost of

litigation, time-consuming nature of litigation, they want to move forward[.]” (Tr. 10:21–25;

Mem. for Final Approval, ECF No. 55 at 9 n.1.) In sum, the parties’ understanding of the

complexity, risks, and expenses of continued litigation and their desire to avoid those risks and

costs support final approval of the settlement.

ii. Effectiveness of Relief Distribution

The second Rule 23(e)(2)(C) factor, “the effectiveness of any proposed method of

distributing relief to the class” supports a finding that the class-wide relief is adequate. Fed.

R. Civ. P. 23(e)(2)(C)(ii). “In considering the effectiveness of the proposed method of

distributing the settlement to class members, the Court must consider whether the proposed

method will deter or defeat unjustified claims without imposing an undue demand on class

members.’” In re Tenaris, 2024 WL 1719632, at *9 (quoting Cymbalista v. JPMorgan Chase

Bank, N.A., No. 20-CV-456 (RPK)(LB), 2021 WL 7906584, at *7 (E.D.N.Y. May 25, 2021)).

The distribution method and claims-processing formula “need only have a reasonable rational

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

The Agreement in this case sets forth an effective method of processing each Class

member’s claim and distributing the settlement payments. (See Settlement Agt., ECF No. 45-

1 ¶ 3.1.) Specifically, the Settlement Fund will be allocated according to each Class member’s

“proportionate shares” using the number of weeks the Class member worked for All-Ways NY

during the relevant time period. (Id. ¶ 3.1(A)(1).) Each Class member will receive a “point”

for every full or partial week worked. (Id.) Then, “[t]he Settlement Fund, after deductions for

court approved attorneys’ fees and expenses, settlement administration fees and expenses,

service awards, and all other court approved expenses or disbursements, will be divided by the

aggregate number of points accrued by all of the Class Members who do not timely opt-out of

the settlement (“Point Value”); and (b) each Class Member’s total points will be multiplied by

the Point Value to determine his or her ‘Individual Settlement Amount.’” (Id. ¶ 3.1(A)(2).)

Finally, an experienced Claims administrator will mail the checks to Class members within ten

business days after Defendants remit the Settlement Fund into the Settlement Account. (Id.

¶ 3.1(C); Peek Revised Decl., ECF No. 62-1 ¶ 12.) Upon review of these provisions in the

Agreement and the Class administrator’s declaration regarding the allocation of the Settlement

Fund, the Court is satisfied that the proposed method is effective and reasonable.

iii. Proposed Attorneys’ Fees

The third Rule 23(e)(2)(C) factor directs the Court to examine “the terms of any

proposed award of attorneys’ fees, including timing of payment.” Fed. R. Civ. P.

23(e)(2)(C)(iii). Pursuant to the Agreement, Class counsel seeks attorneys’ fees of

$258,333.33 to be paid from the Settlement Fund, or approximately one-third of the $775,000

Settlement Fund. (Settlement Agt., ECF No. 45-1 ¶ 3.2.; Mot. for Fees, ECF No. 59 at 1; Troy

Decl. for Fees, ECF No. 61 ¶ 82.) This is “within the range of fee award percentages that

courts in this Circuit have approved.” Flores, 2022 WL 13804077, at *10 (collecting cases).

Moreover, as discussed herein, the lodestar multiplier is within the range of what is considered

reasonable for FLSA class actions in this Circuit; therefore, the attorneys’ fees amount is

reasonable. (See § III.E, infra.) As to the timing of payment, the Agreement does not

contemplate a specific date by which the disbursement of attorneys’ fees will occur—and

whether Class counsel will receive their fee before the Settlement checks are distributed to the

Class members. (See Settlement Agt., ECF No. 45-1 ¶ 3.2.) However, courts have held that

payment to attorneys before disbursements to claimants “does not undercut that case where,

as here, the majority of other factors weigh significantly” in favor of final settlement approval.

Schutter, 2024 WL 4118465, at *9 (quoting Mikhlin, 2021 WL 1259559, at *7). Therefore,

even if Class counsel were to be paid before Class members, that timing will not weigh

significantly against final approval of the Settlement.

iv. Rule 23(e)(3) Agreement

The fourth and final Rule 23(e)(2)(C) factor requires the Court to consider “any

agreement required to be identified under Rule 23(e)(3),” that is, “any agreement made in

connection with the proposal.” Fed. R. Civ. P. 23(e)(2)(C)(iv) & (e)(3). There is no evidence

in the record before the Court that such agreement exists between the parties. Therefore, this

factor is neutral and does not impede the final approval of the Settlement.

b. Equitable Treatment of Class Members

In evaluating whether “the proposal treats class members equitably relative to each

other,” Fed. R. Civ. P. 23(e)(2)(D), courts may weigh “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.” Moses, 79 F.4th at 245. Particularly, “the existence and extent of

incentive payments is relevant to whether ‘class members [are treated] equitably relative to

each other.’” Schutter, 2024 WL 4118465, at *10. Courts must ensure that the settlement

protects “the interests of class representative who play an active role in the litigation” while

also “reject[ing] incentive awards that are excessive compared to the service provided by the

class representative or that are unfair to the absent class members.” Id. (citing Moses, 79 F.4th

at 245.)

As noted, the Settlement Fund will be distributed to each Class member according to

their “proportionate shares,” which are calculated by the number of weeks each Class member

worked. (See Settlement Agt., ECF No. 45-1 ¶ 3.1(A).) Courts have found that such “[p]ro

rata distribution schemes are sufficiently equitable and satisfy the requirements of Rule

23(e)(2)(D).” Schutter, 2024 WL 4118465, at *10 (citing Cymbalista, 2021 WL 7906584, at

*9). In addition, the Agreement provides for a $30,000 service award for Ying, the sole Class

representative. (Settlement Agt., ECF No. 45-1 ¶ 3.1(B); see generally Mot. for Service

Awards, ECF No. 56.) As discussed herein (see § III.D., infra), this service award is

appropriate to compensate the Class representative for his time and efforts to assist the

prosecution of this case and the related risks and burdens, and is reasonable for FLSA class

actions. Zhu, 2024 WL 4351357, at *9. Further, the scope of the release in the Agreement

(see generally Settlement Agt., ECF No. 45-1 § 4.1) “applies uniformly to putative class

members, and does not appear to affect the apportionment of the relief to class members.” In

re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11, 47

(E.D.N.Y. 2019). For these reasons, the Court finds that the Class members are treated

equitably pursuant to the Agreement.

c. Remaining Grinnell Factors

i. Class Reaction to the Settlement

As to the second Grinnell factor, the Class’s reaction to the Settlement, the Settlement

Administrator confirmed that no Class member has objected to the settlement after receiving

notice of this class action, and only one Class member opted out of the settlement. (Peek

Revised Decl., ECF No. 62-1 ¶¶ 8–10; Tr. 8:17–19.) This indicates a “overwhelmingly

positive response” that “reinforces the Court’s conclusion that the Settlement is fair, adequate

and reasonable.” Faroque, 2020 WL 9812905, at *6 (citing Fujiwara v. Sushi Yasuda Ltd., 58

F. Supp. 3d 424, 432–33 (S.D.N.Y. 2014) (“[T]he fact that the vast majority of class members

neither objected nor opted out is a strong indication that the proposed settlement is fair,

reasonable, and adequate.”)). Thus, the second Grinnell factor also weighs in favor of

approval.

ii. Stage of Litigation and Completed Discovery

For the third Grinnell factor, relating to the stage of litigation and discovery before

settlement, the parties have engaged in discovery relating to All-Ways NY since the initial

conference in August 2021 until the parties reached a class-wide settlement in May 2022. (See

Aug. 17, 2021 Min. Entry; Dec. 10, 2021 Min. Entry; ECF Nos. 38, 42.) This record reflects

that “discovery has advanced far enough for the parties to realistically evaluate the value of

the case” (Tr. 8:20–22) and that the parties clearly “had an adequate appreciation of the merits

of the case before negotiating” a resolution. Fujiwara, 58 F. Supp. 3d at 433 (finding that

counsel was “sufficiently aware of the merits of the case” because they had already conducted

depositions and document discovery of payroll records, work schedules, and employee files);

see also Vasquez, 2024 WL 3966246, at *17. Accordingly, the Court finds that the third

Grinnell factor also weighs in favor of settlement approval.

iii. Defendants’ Ability to Withstand Greater Judgment

As to the seventh Grinnell factor, “[i]f a defendant could not withstand a judgment

greater than the amount provided for in the settlement, the settlement is more likely to be

reasonable, fair, and adequate.’” D’Angelo, 2023 WL 4838156, at *7 (citing Flores, 2022 WL

13804077, at *9). While Plaintiff believes the record is unclear, defense counsel advised the

Court at the fairness hearing that he was not aware that Defendants could not to withstand a

judgment greater than the $775,000 settlement. (Mem. for Final Approval, ECF No. 55 at 13;

Tr. 11:1–5.) However, this factor by itself does not mean the settlement is not fair. Rather,

the seventh Grinnell factor “is neutral and does not preclude the Court from approving the

settlement.” Beckman v. KeyBank, N.A., 293 F.R.D. 467, 476 (S.D.N.Y. 2013).

iv. Range of Reasonableness of Settlement

Finally, as to the eighth and ninth Grinnell factors of evaluating the range of

reasonableness of the settlement in light of the best possible recovery and in light of all the

attendant risks, the Court finds that these factors also warrant a final approval of the settlement.

The determination of whether a settlement amount is reasonable “does not involve the use of

a mathematical equation yielding a particularized sum.” Viafara, 2014 WL 1777438, at *7

(cleaned up). Instead, “there is a range of reasonableness with respect to a settlement—a range

which recognizes the uncertainties of law and fact in any particular case and the concomitant

risks and costs necessarily inherent in taking any litigation to completion.” Hernandez, 306

F.R.D. 91, 101 (E.D.N.Y. 2015) (citing Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)).

The proposed settlement of $775,000 is reasonable when viewed in light of the best possible

recovery and in light of all the attendant risks. While class counsel estimated that the Class’s

best available damages award is approximately $1.94 million exclusive of liquidated damages,

statutory penalties, and attorneys’ fees (Mem. for Final Approval, ECF No. 55 at 14), at the

fairness hearing defense counsel disputed that number, suggesting that it might be substantially

lower. (Tr. 7:23–10:18.) Nonetheless, according to Class counsel, the proposed settlement

of $775,000 “represents a significant recovery compared to the damages calculations

performed by Plaintiff’s counsel to assess the maximum possible recovery,” and may represent

97% of unpaid wages. (Mem. for Final Approval, ECF No. 55 at 14; Troy Decl. for Final

Approval, ECF No. 54 ¶ 58, 62.) In light of these calculations and reasoning, the Court finds

that the range of recovery is reasonable. Moreover, a settlement ensures that immediate

payment of substantial amounts is made to Class members, even if the recovery post-trial may

be hypothetically larger. Hall v. ProSource Technologies, 14-CV-2502 (SIL) 2016 WL

1555128, at *8 (E.D.N.Y. Apr. 11, 2016). Thus, the eighth and ninth Grinnell factors weigh

in favor of final approval.

Accordingly, the class settlement is both procedurally and substantively fair under Rule

23(e), and therefore the class action settlement is approved.

C. FLSA Collective Action Settlement Approval

Plaintiff does not expressly seek approval of the collective action settlement.

Nonetheless, judicial approval of FLSA settlements is required by courts in the Second Circuit.

See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). As such, when

a case involves both a class action and collective action, courts in this Circuit analyze the

Grinnell factors with respect to approval of the class action, then look to Cheeks for the FLSA

collective action analysis. See D’Angelo, 2023 WL 4838156, at *9 (citing Mills v. Capital

One, N.A., No. 14-CV-1937 (HBP), 2015 WL 5730008 (S.D.N.Y. Sept. 30, 2015)). In other

words, “in addition to the factors that govern approval of any class action settlement, a court

evaluating the settlement of an FLSA action must take into account other considerations,

including any confidentiality requirements, the scope of any release, and any provision for

attorneys’ fees.” Siddiky v. Union Square Hosp. Grp., LLC, No. 15-CV-9705 (JCF), 2017 WL

2198158, at *7 (S.D.N.Y. May 17, 2017) (citing Cheeks, 796 F.3d at 206.) That said, because

“[t]he standard for approval of an FLSA settlement is lower than for a Rule 23 settlement,”

satisfaction of the Grinnell factor analysis will necessarily satisfy the standards of approval for

the FLSA settlement. Flores, 2022 WL 13804077, at *9 (citing Massiah v. MetroPlus Health

Plan, Inc., 2012 WL 5874655, at *5 (E.D.N.Y. Nov. 20, 2012)).

The Agreement largely “reflects a reasonable compromise of disputed issues rather than

a mere waiver of statutory rights brought about by an employer’s overreaching.” Quispe v.

Stone & Tile Inc., 583 F. Supp. 3d 372, 375 (E.D.N.Y. 2022) (cleaned up); see also Fisher v.

SD Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020). The Agreement contains a reversion clause

that is permissible given the circumstances of this case. (See Settlement Agt., ECF No. 45-1

§ 3.1(F) (“Any uncashed settlement checks, and all other amounts remaining in the fund after

one hundred eighty (180) days shall be void and returned to Defendants.”).) A reversion clause

is subject to some scrutiny because it provides that any unclaimed settlement funds will revert

back to the defendants, as opposed to, for example, being distributed among the Class members

who claimed their settlement amounts. See, e.g., Cunningham v. Suds Pizza, Inc., 290 F. Supp.

3d 214, 225 (W.D.N.Y. 2017). However, reversion clauses are not necessarily prohibited in

settlement agreements, although they may warrant a decrease of the award of attorneys’ fees

in some circumstances where there may be risk of “low participation rates for ‘claims made

settlements’ (i.e., settlements that require the filing of a claim form in order to share in the

settlement proceeds).” See, e.g., McGreevy v. Life Alert Emergency Response, Inc., 258 F.

Supp. 3d 380, 388 (S.D.N.Y. 2017); see also Espinal v. Victor’s Cafe 52nd St., Inc., No. 16-

CV-8057 (VEC), 2019 WL 5425475, at *4 (S.D.N.Y. Oct. 23, 2019) (“Although parties are

entitled to structure a settlement in this way, the settlement structure must be considered when

determining an appropriate percentage for attorneys’ fees, particularly where . . . there was

good reason to suspect that the claims rate would be quite low and that there would be a

substantial reversion.”). There is little concern of a low claims rate by Class members;

according to the Claim Administrator, all Class members have already been notified by mail

or email, and Class members did not need to file a claim to be eligible for payment. (Peek

Revised Decl., ECF No. 62-1 ¶¶ 8, 12.) Therefore, because there is no reason to suspect that

there would be substantial reversion for the benefit of Defendants, the Agreement’s reversion

clause does not preclude a finding of a fair and reasonable settlement.

Further, the Agreement’s release provision is narrowly tailored to “any and 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[,]” (Settlement Agt., ECF

No. 45-1 § 4.1(A)), and thus not impermissibly broad. See Garay v. Euro Metalsmith, No. 23-

CV-3451 (ARR)(JMW), 2023 WL 8435866, at *5 (E.D.N.Y. Dec. 5, 2023) (“Although the

agreement contains a release, it is not an unfettered general release requiring that Plaintiffs

waive any and all claims that they may have against Defendants,” and is thus reasonable).

On the other hand, the Agreement contains a highly restrictive confidentiality provision

that is inconsistent with the spirit of the FLSA. (See Settlement Agt., ECF No. 45-1 § 4.1(G).)

Section 4.1(G) provides, in relevant part, “Named Plaintiff and Class Counsel agree that they

will not in any manner publicize this Agreement to any member of the media and will not post

or disseminate the terms and condition [sic] of this Agreement to any member of the media or

via any social media site . . . ” Such confidentiality provision that “bars plaintiffs from openly

discussing their experiences litigating this wage-and-hour case” is prohibited in FLSA

settlement agreements because such restrictions “run afoul of the purposes of the FLSA and

the ‘public’ independent interest in assuring that employees’ wages are fair.” Lopez v. Nights

of Cabiria, LLC, 96 F. Supp. 3d 170, 178 (S.D.N.Y. 2015); see Perez v. 66 Meat Corp.,

No. 22-CV-7003, 2024 WL 2716851, at *4 (E.D.N.Y. May 28, 2024) (collecting cases that

reject confidentiality provisions that prohibit plaintiffs from disclosing the terms of the

settlement), adopted by 2024 WL 3161838 (E.D.N.Y. June 25, 2024). Moreover, the purported

“carve-out” that “[n]othing herein, however, shall restrict Class Counsel from discussing the

terms and conditions of this Agreement with any Class Member, or from assisting the Claims

Administrator from notifying Class Members of the Agreement” does not cure the

impermissibly drafted confidentiality provision because the provision still prevents Plaintiffs

from openly discussing their experiences with others. Zhu, 2024 WL 4351357, at *12 (quoting

Gonzales v. Lovin Oven Catering of Suffolk, Inc., No. 14-CV-2824 (SIL), 2015 WL 6550560,

at *3 (E.D.N.Y. Oct. 28, 2015); see alsoPerez, 2024 WL 2716851, at *5 (rejecting

confidentiality stipulation allowing disclosure to only legal counsel, spouse, and accountant)).5

Therefore, the Court strikes Section 4.1(G) from the Agreement. The remaining

provisions of the Agreement are valid in accordance with the Agreement’s “Blue Penciling”

clause. (See Settlement Agt., ECF No. 45-1 § 5.7 (“If any provision of this Agreement is held

by a court of competent jurisdiction to be void, voidable, unlawful or unenforceable, the

remaining portions of this Agreement will remain in full force and effect.”) Upon striking of

the impermissible confidentiality clause, the Court approves the FLSA collective action

settlement.

D. Service Award

The Agreement provides for a service award for the Class representative Ying in the

amount of $30,000. (Settlement Agt., ECF No. 45-1 ¶ 3.1(B); see generally Mot. for Service

Awards, ECF No. 56.)

“Courts regularly grant requests for service awards in class actions ‘to compensate

plaintiffs for the time and effort expended in assisting the prosecution of the litigation, the risks

incurred by becoming and continuing as a litigant, and any other burdens sustained by the

plaintiffs.’” Hall, 2016 WL 1555128, at *9 (quoting Viafara, 2014 WL 1777438, at *16).

5 The confidentiality provision also includes a related non-disparagement clause in which Ying

“agrees not to make disparaging comments related to Defendants except as may be required by

law or protected by law.” (Settlement Agt., ECF No. 45-1 ¶ 4.1(G).) The Court also finds this

impermissible because: (1) it is not mutual and (2) the purposed carveout is too vague to apprise

Ying of what comments may or may not be “required by law or protected by law,” rendering that

carve-out ineffective. See Lopez, 96 F. Supp. 3d at 180 n.65 (“But insofar as [the non-

disparagement provision] would bar plaintiffs from making ‘any negative statement’ about the

defendants, it must include a carve-out for truthful statements about plaintiffs’ experience litigating

their case.”).

Recognition payments are “particularly appropriate in the employment context” because

“former or current employee[s] of the defendant . . . by lending [their] name to the litigation,

[they have], for the benefit of the class as a whole, undertaken the risk of adverse actions by

the employer or co-workers.” Flores, 2022 WL 13804077, at *10 (quoting Frank v. Eastman

Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005)).

The Class representative’s requested service award of $30,000—or approximately 3%

of the Settlement Fund— is reasonable and within the range of awards granted in this district.

See, e.g., Massiah, 2012 WL 5874655, at *5 (collecting cases showing approval of service

awards ranging from $5,000 to $30,000). The service award compensates the named Plaintiff

for his services rendered throughout litigation, including, inter alia, his regular communication

with Class counsel via telephone, zoom, and in-person meetings; their assistance with the

preparation of the Complaint; responses to discovery requests; drafting of motions and

affidavits; and participation in settlement negotiations and mediation. (Troy Decl. for Service

Awards, ECF No. 58 ¶¶ 3–4.) As stated at the fairness hearing, Ying provided information

about himself and other similarly situated All-Ways NY employees and corroborate his

statements with documents that led to the settlement. (See Tr. 15:1–16:3.) “This award

incentivizes other claimants to serve as class representatives in related cases, and he should

not receive the same award as the other Class Members in light of his efforts.” D’Angelo,

2023 WL 4838156, at *10.

Having reviewed the supporting declaration from Class counsel regarding the time and

effort devoted by the Class representative in assisting in the prosecution of the case, the Court

finds the requested service award to be reasonable. Accordingly, the Court awards Ying, the

Named Plaintiff, a $30,000 service award.

E. Attorneys’ Fees

Class counsel requests attorneys’ fees in the amount of $258,333.33, or “approximately

one-third of the Settlement Fund[.]” (Mot. for Fees, ECF No. 59 at 1; Troy Decl. for Fees,

ECF No. 61 ¶ 8; Settlement Agt., ECF No. 45-1 ¶ 3.2.)

“In a certified class action, the court may award reasonable attorneys’ fees and

nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P.

23(h). “‘Although [the Second Circuit] ha[s] acknowledged that the trend in this Circuit is

toward the percentage method, it remains the law in this Circuit that courts may award

attorneys’ fees in common fund cases under either the ‘lodestar’ method or the ‘percentage of

the fund’ method[.]” Bondi v. DeFalco, No. 17-CV-5681 (KMK), 2020 WL 2476006, at *6

(S.D.N.Y. May 13, 2020) (quoting McDaniel v. Cty. of Schnectady, 595 F.3d 411, 417 (2d Cir.

2010)). A court applying either method should consider the following factors: (1) the time and

labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of

the litigation; (4) the quality of representation; (5) the requested fee in relation to the

settlement; and (6) public policy considerations. Goldberger v. Integrated Res., Inc., 209 F.3d

43, 50 (2d Cir. 2000)).

1. Percentage of Recovery

Courts in this Circuit typically approve fee awards representing one-third of the total

recovery in collective actions. See Flores, 2022 WL 13804077, at *10 (collecting cases); see

also Beckman, 293 F.R.D. at 477 (citing Arbor Hill Concerned Citizens Neighborhood Ass’n

v. Cty. of Albany, 522 F.3d 182 (2d Cir. 2008)). Class counsel’s request of $258,333.33 out of

a settlement fund of $775,000 represents 33.33% of total recovery and is therefore reasonable.

Schutter, 2024 WL 4118465, at *13.

2. Goldberger Factors

The Goldberger factors further favor approval of attorneys’ fees.

First, as discussed previously, Class counsel spent “significant effort” to achieve the

settlement in May 2022, by thoroughly investigating the claims and defenses, having extensive

motion practice, reviewing and analyzing comprehensive wage and hour records, and

submitting a detailed mediation statement. (See Troy Decl. for Fees, ECF No. 61 ¶ 20–21, 27,

30.) According to Class counsel’s submission, Class counsel and counsel’s paralegal have

spent “more than 250 attorney and paralegal hours prosecuting this case over the course of

slightly more than three years.” (Troy Decl. for Fees, ECF No. 61 ¶ 37; see Billing Records,

ECF No. 61.) Moreover, these hours do not include the additional hours that Class counsel

will expend to administer the settlement in the future. Accordingly, the first factor supports

the reasonableness of the requested fees.

Second, the magnitude and complexity of FLSA cases also favor approval. “FLSA

claims typically involve complex mixed questions of fact and law,” and issues must be

resolved “in light of volumes of legislative history and over four decades of legal interpretation

and administrative rulings.” Beckman, 293 F.R.D. at 479 (citing Barrentine v. Arkansas–Best

Freight Sys., Inc., 450 U.S. 728, 743 (1981)). Among FLSA cases, “the most complex type is

the ‘hybrid’ action brought here, where state wage and hour violations are brought as an ‘opt

out’ class action pursuant to Rule 23 in the same action as the FLSA “opt in” collective action

pursuant to 29 U.S.C. § 216(b).” Viafara, 2014 WL 1777438, at *11. Therefore, the second

factor also favors approval of attorneys’ fees.

Third, Class counsel has certainly taken on the risk of recovery in this wage and hour

action, where claims are highly fact-dependent and Defendants raised several affirmative

defenses, requested dismissal of all claims, and denied material allegations. Therefore, the

litigation risks in this case weigh in favor of approving attorneys’ fees.

Fourth, as to the quality of representation, Class counsel’s firm, Troy Law, has

extensive experience litigating large-scale wage and hour class and collective actions in this

district. (Troy Decl. for Fees, ECF No. 61 ¶¶ 40–54.) Class counsel’s substantial experience

in wage and hour class and collective actions further supports approval of attorneys’ fees.

Fifth, the factor of public policy also favors approval of attorneys’ fees because “FLSA

and NYLL are remedial statutes designed to protect the wages of workers,” and the approval

of fees in this case will further that statutory purpose. Viafara, 2014 WL 1777438, at *13; see

also D’Angelo, 2023 WL 4838156, at *12 (holding that “such an award will encourage

experienced litigators . . . to take on [wage and hour] cases in the face of risk”). Moreover,

“class actions are an invaluable safeguard for public rights.” Beckman, 293 F.R.D. at 481

(citing Phillips Petro. Co. v. Shutts, 472 U.S. 797, 809 (1985)). Accordingly, the public policy

benefits weigh in favor of awarding attorneys’ fees.

Accordingly, considering all of the Goldberger factors, the Court finds that award of

$258,333.33 in attorneys’ fees is reasonable.

3. Lodestar Cross Check

Finally, although the general trend in this Circuit is toward the percentage-of-recovery

method, the lodestar remains useful as a “baseline” or a “cross check” on the reasonableness

of the requested percentage. Goldberger, 209 F.3d at 50. The lodestar amount is the “product

of a reasonable hourly rate and the reasonable number of hours required by the case.” Esquivel

v. Lima Rest. Corp., No. 20-CV-2914 (ENV)(MMH), 2023 WL 6338666, at *16 (E.D.N.Y.

Sept. 29, 2023), adopted by Order Adopting R. & R., Esquivel, No. 20-CV-2914

(ENV)(MMH) (E.D.N.Y. Nov. 30, 2023). “To determine a reasonable hourly rate, courts

consider market rates prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience, and reputation.” Id. (cleaned up). “Courts in the

Eastern District have recently awarded hourly rates ranging from $300 to $450 for partners,

$200 to $325 for senior associates, $100 to $200 for junior associates, and $70 to $100 for

legal support staff in FLSA cases.” Morales v. Los Cafetales Rest. Corp., No. 21-CV-1868

(AMD)(RER), 2023 WL 7684775, at *7 (E.D.N.Y. Oct. 12, 2023), adopted by 2023 WL

8021460 (E.D.N.Y. Nov. 20, 2023). “[W]here used as a mere cross-check, the hours

documented by counsel need not be exhaustively scrutinized by the district court.”

Goldberger, 209 F.3d at 50. Instead, the reasonableness of the claimed lodestar can be tested

by the court’s familiarity with the case. Id. Courts regularly award lodestar multipliers of up

to eight times the lodestar, and in some cases, even higher multipliers. Beckman, 293 F.R.D.

at 481 (collecting cases showing courts awarding lodestar multipliers between two and eight).

Class counsel’s lodestar amount is $100,893.50.6 (Troy Decl. for Fees, ECF No. 61 ¶

83; see also Billing Records, ECF No. 61-1 at 1–9.)

The Court finds that Class counsel’s lodestar is too high because of counsel’s

unreasonably high hourly rates. However, as explained below, a reduction in hourly rates will

still put the lodestar multiplier in an acceptable range for wage and hours class actions in this

6 The motion states that “Class Counsel spent over 1,055 hours litigating and settling this matter

over eight years” and that the lodestar amount is “about $452,392.50.” (Mem. for Attorneys’ Fees,

ECF No. 60 at 22.) This is obviously incorrect. The motion also states a different lodestar of

$98,170.50. (Id. at 6.) The Court instead adopts the lodestar amount of $100,893.50 averred in

Mr. Troy’s Declaration and confirmed at the fairness hearing. (See Troy Decl. for Fees, ECF

No. 61 ¶ 83; Tr. 21:13–20.)

district. Therefore, Class counsel’s attorneys’ fee of $258,333.33 is also reasonable using the

lodestar cross check method.

a. Hourly Rate

Class counsel seeks hourly rates of $650 for John Troy, $400 for Aaron Schweitzer,

$250 for Tiffany Troy, and $200 for Preethi Kilaru. (Troy Decl. for Fees, ECF No. 61 ¶¶ 56,

64, 75, 76, 81; Billing Records, ECF No. 61-1 at 1–9.) These rates are all considerably higher

than the accepted rates for FLSA cases in this district and thus warrant reductions. In fact, for

same reasons, courts in this district have “consistently discounted Troy Law’s requested hourly

rates for the same attorneys and support staff.” Sanchez v. 156-40 Grill LLC, No. 15-CV-5081

(CBA)(LGD), 2024 WL 2855719, at *5 (E.D.N.Y. June 6, 2024) (collecting cases) (“As

evidenced by this ample caselaw, Troy Law is no stranger to the rates typically awarded to

them, and thus, the Court finds that their requests for rates rejected as recently as last year

troubling.”).

With regards to Mr. Troy’s hourly rate, the Court finds $650 to be unreasonable despite

the substantial experience he has in litigating wage-and-hour actions because the rate is well

above the $300 to $450 range for partners that is accepted in this district. Morales, 2023 WL

7684775, at *7. Likewise, Mr. Schweitzer, who is a “managing associate” at Troy Law and a

2016 law graduate, requested a $400 hourly rate, which may be within the acceptable rates for

partners, but not for senior associates. Id. Ms. Troy, a 2021 law school graduate, was a junior

associate at the time of this litigation, yet requested a high hourly rate of $250—a rate more

appropriate for senior associates. Id. Ms. Kilaru, a “managing clerk,” billed at a rate of $200,

even though it is unclear whether she is admitted to practice law and whether she was

performing any legal work on the case.

As raised during the final approval hearing, Class counsel asserts that these rates are

acceptable in part because “[t]he Second Circuit has long since determined that in fee

applications, ‘rates used by the court should be current rather than historic hourly rates.” (Tr.

22:19–23:2; see Zhu v. Wanrong Trading Corp., 18-CV-417 (ENV)(MMH), Pls.’ Supp. Ltr.,

ECF No. 139 at 4 (citing Reiter v. MTA N.Y. City Transit Auth., 457 F.3d 224, 232 (2d Cir.

2006), Lochren v. Cty. of Suffolk, 344 F. App.’x. 706, 709 (2d Cir. 2009), and Shi v. TL & CG

Inc., No. 19-CV-08502 (SN), 2023 WL 5827598, at *5 (S.D.N.Y. Sept. 8, 2023).)7 However,

these cited cases do not necessarily justify the high rates that Class counsel is requesting. In

fact, the holdings in these cases appear to undermine Class counsel’s argument entirely. Class

counsel’s requested rates are not “market rates,” or what is “prevailing in the community for

similar services by lawyers of reasonably comparable skill, experience, and reputation.”

Reiter, 457 F.3d at 232; see Shi, 2023 WL 5827598, at *5 (recommending reduction in

counsel’s fees, recognizing that “[m]uch has been written in this district about the inflated rates

charged by John Troy and others at his firm”). Therefore, even if the Court were to award the

“current rather than historic hourly rates,” the requested rates would not be defensible based

on the cases that Class counsel cites.

Given the inflated hourly rates of counsel, the Court will reduce each attorney and staff

member’s hourly rate across-the-board to the highest end of the acceptable range, for purposes

of determining a more reasonable lodestar amount. In other words, Mr. Troy’s hourly rate will

7 The Court accepts Plaintiffs’ supplemental letter filed by the same Class counsel in Zhu, an

unrelated action, because it addresses the same attorneys’ fees issues counsel raised in this case

and discussed at the fairness hearing. (Tr. 22:19–23:2.)

be reduced to $450; Mr. Schweitzer’s to $325 and $200; Ms. Troy’s to $200 and $100; and

Ms. Kilaru to $100. See Morales, 2023 WL 7684775, at *7.

b. Reasonable Hours Expended

Nonetheless, the Court finds that the number of hours expended in this case is

reasonable. According to Class counsel’s submission, Class counsel and their paralegals “have

spent more than 250 hours prosecuting this case over the course of slightly more than three (3)

years.” (Troy Decl. for Fees, ECF No. 61 ¶ 37.) The breakdown for each attorney is provided:

45.79 hours for John Troy, 104.53 hours for Aaron Schweitzer, 113.83 hours for Tiffany Troy,

and 7.54 hours for Preethi Kilaru. (Troy Decl., ECF No. 61 ¶ 83.)

A careful review of the Class counsel’s contemporaneous billing records shows that the

hours expended are reasonable overall, although some entries are questionable.8 Overall,

however, the records reflect the various reasonable tasks that Class counsel had to complete to

litigate this case and prepare for class-wide settlement, such as calculating Class damages in

advance of the mediation, conferring with opposing counsel on settlement, drafting the

Agreement, communicating with clients, reviewing the final notice to Class members, and

drafting applications to the Court. Therefore, the Court finds that Class counsel’s number of

hours expended used to calculate the lodestar amount is reasonable.

Multiplying the reduced hourly rates and the hours expended, the Court finds that the

adjusted lodestar should be $85,523.50, as opposed to Class counsel’s calculation of

$100,893.50. The adjusted lodestar multiplier is, therefore, 3.02 (i.e., $258,333.33 /

8 For example, Mr. Schweitzer billed 0.33 hours on August 18, 2022 to “[t]ry to create link for

Video” and billed 0.67 hours on December 22, 2021 to “[b]egin working on MCCC,” which are

either vague or the types of tasks better suited and more economical for a paralegal or support staff

to handle. (Billing Records, ECF No. 61-1 at 4.)

$85,523.50), which is still well within the acceptable range. Beckman, 293 F.R.D. at 481

(collecting cases showing courts awarding lodestar multipliers between two and eight).

Accordingly, the Court awards Class counsel attorneys’ fee of $258,333.33.

F. Costs

Class counsel requests costs and expenses in the amount of $1,998.50 to be paid from

the Settlement Fund. (Mot. for Fees, ECF No. 60 at 23; Troy Decl. for Fees, ECF No. 61 ¶ 82.)

Courts typically allow counsel to recover their reasonable out-of-pocket expenses. See

D’Angelo, 2023 WL 4838156, at *12 (finding costs such as filing fees, service fees, mediation,

investigation, and mailing and printing to be reasonable and appropriate); see also Flores, 2022

WL 13804077, at *10 (awarding litigation costs including filing fee, service fees, notice

printing and mailing fees, and fees related to mediation).

Class counsel has submitted an invoice summary with some receipts showing out-of-

pocket expenses such as filing fee, process server fees, postage fees, printing fees, and

mediation cost. (Billing Records with Receipts, ECF No. 47-1 at 7–8.) While the expenses

are reasonably incurred and necessary to represent the Class, see In re Tenaris, 2024 WL

1719632, at *12, this Court does not find that the attached receipts support the requested costs

and expenses. Specifically, class counsel only provides the receipts to support the costs in the

total amount of $1,352.70, including the filing fee of $402.00, the mediation cost of $950, and

business records service fee of $0.70. (Id. at 9–11.)

Accordingly, the Court awards Class counsel $1,352.70 in costs.

G. Administrator Fees

The Settlement Administrator in this litigation, Arden Claims Services, requests a

$9,000 fee to be paid from the Settlement Fund. (Mot. for Fees, ECF No. 60 at 23.) The

Agreement contemplates the administration fee award “not to exceed” $20,000, thus the

requested amount is in accordance with the parties’ agreement. (See Settlement Agt., ECF

No. 45-1 ¶ 3.3.)

The Administrator was appointed to administer the settlement in accordance with the

terms of the Agreement including, inter alia, (a) mailing the Notice Packet; (b) processing

undeliverable Notice Packets; (c) researching the most recent addresses for the Class members

whose Notice Packet were returned as undeliverable and resending the Notice Packet by mail

or email; and (d) receiving any requests for exclusion. (See Peek Revised Decl., ECF No. 62-

1 ¶¶ 6–7, 9.) If the Court grants final approval of the settlement, the Administrator will

continue to fulfil duties to facilitate the settlement, such as calculating the individual Class

member’s allocated amount, distributing the funds by mailing checks, and tax-reporting. (Id.

¶ 3.)

The Court finds that the requested administration fee of $9,000 is reasonable in light of

the tasks completed by the Administrator in facilitating the notice to Class members and the

tasks to be completed in the distribution of funds to each Class member. See Flores, 2022 WL

13804077, at *11 (approving an administration fee of $25,000 to be reasonable and within the

range charged by settlement administrators in similar cases); see also D’Angelo, 2023 WL

4838156, at *13 (approving the same amount in administrator’s fees “because [the

administrator” disseminated all notices, performed awards calculations per Class Member, and

maintained correspondences with the Class Members”). Accordingly, the Court approves the

requested $9,000 administration fee.

IV. CONCLUSION

For the foregoing reasons, the parties’ motions at ECF Nos. 53, 56, and 59 are granted

in part and denied in part. Specifically: (1) The Court certifies the Settlement Class and

approves the parties’ Settlement Agreement, with the exception of the confidentiality and non-

disparagement provision of the Agreement, which is stricken. (2) The Court approves the

following awards: (a) to Ying, the Named Plaintiff, $30,000.00 as a service award; (3) to Class

counsel, $258,333.33 for attorneys’ fees and $1,352.70 for litigation costs; and (4) to the

Settlement Administrator, a fee of $9,000.00.

SO ORDERED.

Brooklyn, New York

March 31, 2025

/s/Marcia M. Henry

MARCIA M. HENRY

United States Magistrate Judge