Caccavale v. Hewlett-Packard Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TONY CACCAVALE, ANTHONY MANGELLI,

DOUGLAS SORBIE, and JAMES BILLUPS

Individually and on behalf of all others similarly

situated,

Plaintiffs, REPORT AND RECOMMENDATION

-against- 20-cv-974-NJC-ST

HEWLETT-PACKARD COMPANY A/K/A

HP INC., HEWLETT PACKARD ENTERPRISE

COMPANY and UNISYS CORPORATION,

Defendants.

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TISCIONE, United States Magistrate Judge:

Douglas Sorbie (“Plaintiff” or “Sorbie”) sued Unisys Corporation (“Defendant” or

“Unisys”) (together with Plaintiff, the “Parties”) for alleged violations of the Fair Labor Standards

Act (“FLSA”) and New York Labor Law (“NYLL”). Before the Court is the Parties’ joint motion

for preliminary approval of a class and collective action settlement (the “Motion”). For the reasons

discussed below, this Court respectfully recommends that the District Court GRANT the Motion.

BACKGROUND

I. FACTUAL & PROCEDURAL BACKGROUND

This Court assumes the Parties’ familiarity with this case’s factual and procedural

background. To summarize, this Motion concerns a subset of claims between a subset of parties

in a multi-defendant lawsuit regarding alleged FLSA and NYLL violations. On February 21, 2020,

plaintiffs Tony Caccavale (“Caccavale”) and Anthony Mangelli (“Mangelli”), on behalf of

themselves and others similarly situated, sued their current and former employers, Hewlett-

Packard Company, Hewlett Packard Enterprise Company, and Unisys, for alleged late payment of

regular and overtime wages in violation of NYLL §§ 191 and 198, and alleged failure to provide

notices in violation of NYLL § 195. See Compl., ECF No. 1. On May 5, 2020, Caccavale and

Mangelli amended the complaint to add Sorbie—another former Hewlett Packard and Unisys

employee—as a named plaintiff. See First. Am. Compl., ECF No. 11. Unisys moved to dismiss

the First Amended Complaint, which the Court denied without prejudice upon referring the case

to mediation. See Docket Order, dated September 14, 2020.

On December 17, 2020, Caccavale, Mangelli, and Sorbie filed a second amended

complaint adding James Billups as a named plaintiff. See Second Am. Compl., ECF No. 55. The

second amended complaint also added Sorbie’s claim, on behalf of himself and others, against

Unisys for alleged failure to timely pay overtime wages under the FLSA. See id. Unisys moved

to dismiss the second amended complaint and, upon the Court’s denial of the motion, for

interlocutory appeal, which the Court also denied. See Docket Order, dated February 2, 2021.

Plaintiffs filed the operative complaint—the Third Amended Complaint (“TAC”)—on

January 26, 2023. See Third Am. Compl., ECF No. 201. In the TAC, Sorbie alleges two causes

of action against Unisys. See id. First, that Unisys violated NYLL §§ 191(1)(a) and 198 by failing

to timely pay regular and overtime wages. See id. ¶¶ 159–161. Sorbie brings this claim on behalf

of himself and a proposed class of “All Field Service Engineers who were/are employed by Unisys

in the State of New York at any time from six years prior to the filing of the initial complaint in

this matter to the present.” Id. ¶ 84(c). Second, that Unisys violated the FLSA by failing to timely

pay overtime wages. See id. ¶¶ 167–169. Sorbie brings this claim on behalf of himself and a

conditionally certified collective of “All Field Service Engineers in the State of New York who

worked/work for Defendant Unisys at any time within the three-year period immediately preceding

the filing of the initial complaint to present who did not receive their overtime wages timely as

required by the FLSA.” Id. ¶ 98(a). The Court granted the Parties’ joint motion for conditional

certification of the FLSA collective on May 28, 2021. See Cond. Cert. Order, ECF No. 83.

Including Sorbie, 35 individuals initially opted into the FLSA collective; one individual later

withdrew. Abelove Decl. ¶ 64 n.2, ECF No. 273-1. The Court has yet to, however, certify Sorbie’s

proposed class of current and former Unisys employees who allege NYLL violations.

The Parties have since reached a settlement. On October 16, 2023, Plaintiff moved for

preliminary settlement approval. See Mot. for Settlement, ECF No. 227 (the “First Motion”). On

March 13, 2024, the Honorable Nusrat J. Choudhury, having identified various issues with

Plaintiff’s submissions and the original proposed settlement agreement, denied the motion without

prejudice. See generally Op. & Order, ECF No. 252 (the “March 13 Opinion”). On June 24, 2024,

the Parties filed the renewed, instant Motion for preliminary settlement approval, which includes

revised submissions and a revised proposed settlement agreement (the “Settlement Agreement”).

See Mot., ECF No. 273. On August 14, 2024, Judge Choudhury referred the Motion to this Court

for Report & Recommendation. See Docket Order, dated August 14, 2024.

II. THE SETTLEMENT AGREEMENT

This Court also assumes the Parties’ familiarity with the Settlement Agreement’s terms. To

summarize, Unisys will pay $625,000 “in order to fully and finally resolve this Action in its

entirety . . . .” Settlement Agreement § 5. a., ECF No. 273-3. Unisys will deposit that amount into

a Qualified Settlement Fund, which will then be distributed per the Settlement Agreement’s

distribution plan Id. § 5. b.; see id. §§ 7.–9.

The Settlement Agreement concerns several groups. At the heart of these groups are those

who meet the definition of “Service Delivery Employee”:

current or former employees of Unisys (including the Named Plaintiffs) who are or

were employed at any time by Unisys in New York based on a Unisys-assigned

New York work location, during the period February 21, 2014 through October 20,

2023 in one or more of the following positions in the Service Delivery Employee

job family: Field Engineer 1, Field Engineer 2, Field Engineer 3, Field Engineer 4,

Customer Engineer 2, Customer Engineer 3, Customer Engineer 4, Customer

Engineer 5, Customer Engineer 6, Client Infrast Rep 3-Barg Unit, Client Infrast

Rep 4-Bar Unit, Client Infrast Rep 5-Barg Unit, UTS Field Svc Associate, UTS

Field Svc Tech 1, UTS Field Svc Tech 2, UTS Field Svc Tech 3, UTS Field Svc

Tech 4, or UTS Field Svc Tech 5.

Id. § 1. ee. Building off this definition, the Settlement Agreement defines “Settlement Members”

as “all Service Delivery Employees.” Id. § 1. gg.

From there, the Settlement Agreement defines the “New York State Settlement Class”

(hereinafter the “NYLL Class”) as “all Settlement Members.” Id. § 1. hh. As the Court has yet to

certify the NYLL Class under Federal Rule 23(e) of Civil Procedure, the Parties request that the

Court do so now for settlement purposes. See Proposed Order ¶¶ 8, 9, ECF No. 273-3. The

Settlement Agreement next defines the conditionally certified “Federal FLSA Settlement

Collective” (hereinafter the “FLSA Collective”) as “all Settlement Members limited to the period

December 17, 2017 through October 20, 2023.” Settlement Agreement § 1. hh. The Settlement

Agreement defines the NYLL Class and FLSA Collective together as the “Settlement

Class/Collective.” Settlement Agreement § 1. hh.

Finally, the Settlement Agreement defines “Participating Settlement Member” as:

a Settlement Member (including, for the avoidance of doubt, the Settlement Class

Representative) who does not submit a valid Opt-out in accordance with Section

13(k) and the Notice and who properly submits a Valid Claim Form within the

Claim Period, in the manner described by and in compliance with the terms of this

Agreement.

Id. § 1. w. Individual Participating Settlement Members will be awarded a distribution amount

based on the number of overtime hours they worked relative to the total number of overtime hours

worked by all Participating Settlement Members. Id. § 6.

Moreover, under the Settlement Agreement, Sorbie would receive a $10,000 incentive

award. Id. § 9. a. As for attorneys’ fees:

Class Counsel shall make, and Unisys agrees not to oppose, an application for

Attorneys’ Fees that does not exceed thirty-three and one third percent (33 1/3%)

of the Gross Settlement Amount of Six Hundred Twenty-Five Thousand Dollars

($625,000.00). This percentage amount shall be calculated after the Lawsuit Costs

are deducted from the Gross Settlement Amount.

Id. § 8. a. The “Lawsuit Costs” are “litigation expenses and costs incurred in this Action by Class

Counsel . . . [and] are estimated to be no more than . . . $35,000.00.” Id. § 1. r. Additionally, the

Claims Administrator, Rust Consulting, would receive a fee in an amount no more than $11,600.

See id. § 11. c.

DISCUSSION

In denying the First Motion without prejudice, Judge Choudhury granted leave to renew

the motion “upon addressing the issues identified” in the March 13 Opinion. See March 13 Op. at

52. In reviewing the Parties’ revised submissions and the revised Settlement Agreement, this Court

finds that the Parties have adequately addressed the issues identified in the March 13 Opinion so

as to warrant preliminary approval of the Settlement Agreement. This Court first addresses the

requirements for preliminarily approving the Settlement Agreement with respect to the NYLL

Class’s claims, and then addresses the requirements for preliminarily approving the Settlement

Agreement with respect to the FLSA Collective’s claims. For the reasons discussed below, the

Settlement Agreement meets the requirements for both.

I. NYLL CLASS’S SETTLEMENT

“The judicial role in reviewing a proposed settlement is demanding.” In re Payment Card

Interchange Fee & Merch. Disc. Antitr. Litig., 330 F.R.D. 11, 27 (E.D.N.Y. 2019). The court may

only approve a proposed class action settlement if it is “fair, reasonable, and adequate.” Fed. R.

Civ. P. 23(a); Moses v. New York Times Co., 79 F.4th 235, 242 (2d Cir. 2023).

Approving a class action settlement “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.” Payment Card, 330 F.R.D. at 27 (cleaned up) (citations omitted). Here, the Parties are

at the preliminary approval stage. In deciding whether to grant preliminary approval, the Court

“must determine 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.’” Id. at 28 (citing Fed. R. Civ. P. 23(e)(1)(B)(i–ii)).

A. Likely Approval Under Rule 23(e)(2)

“Because Rule 23(e)(2) sets forth the factors that a court must consider when weighing

final approval . . . courts must assess at the preliminary approval stage whether the parties have

shown that the court will likely find that the factors weigh in favor of final settlement approval.”

Id. However, before its amendment in 2018, Rule 23 did not provide any factors for courts to

consider when weighing final approval. Id. Rather, Rule 23 simply required the settlement to be

“fair, reasonable, and adequate.” Id. As such, Courts in this Circuit came to consider the nine

factors enumerated City of Detroit v. Grinnell Corp. to determine a proposed settlement’s fairness.

See 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res.,

Inc., 209 F.3d 43 (2d Cir. 2000). The nine factors included:

(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.

D’Amato v. Deutsche Bank, 236 F.3d 78, 86 (2d Cir. 2001) (citations omitted).

The current, amended version of Rule 23(e)(2), however, provides the following factors

for the court to consider:

(A) the class representatives and class counsel have adequately represented the class;

(B) the proposal was negotiated at arm’s length;

(C) the relief provided for the class is adequate, taking 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;

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

payment; and

(iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2). “Paragraphs (A) and (B) constitute the ‘procedural’ analysis factors, and

examine ‘the conduct of the litigation and of the negotiations leading up to the proposed

settlement.’” Payment Card, 330 F.R.D. at 29 (citing Fed. R. Civ. P. 23 advisory committee’s

notes to 2018 amendment). “Paragraphs (C) and (D) constitute the ‘substantive’ analysis factors,

and examine ‘the relief that the settlement is expected to provide to class members . . . .’” Id.

Even with Rule 23’s amendment, however, courts evaluate the Rule 23(e)(2) factors in

conjunction with the Grinnell factors, “which remain a useful framework for considering the

substantive fairness of a settlement.” Moses, 79 F4th at 243 (“the revised Rule 23(e)(2) does not

displace our traditional Grinnell factors”). Here, as discussed below, the factors largely weigh in

favor of the Settlement Agreement’s preliminary approval.

1. Adequate Representation

This Court first assesses whether Sorbie and his counsel (“Class Counsel” or “Plaintiff’s

Counsel”) adequately represent the NYLL Class. See Fed. R. Civ. P. 23(e)(2)(A). To determine

whether a class’s representative and counsel adequately represent the class, courts consider

whether “(1) plaintiff’s interests are antagonistic to the interest of other members of the class and

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

Co. Fin. Servs. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007) (citation omitted).

a. Adequate Class Representative

A class representative is adequate if he has (1) “an interest in vigorously pursuing” the

class’s claims, and (2) “no interests antagonistic to the interests of other class members.” Denney

v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006); see Charron v. Wiener, 731 F.3d 241,

249 (2d Cir. 2013) (“To ensure that all members of the class are adequately represented, district

courts must make sure that the members of the class possess the same interests, and that no

fundamental conflicts exist among the members.”). “Plaintiffs’ interests are considered congruent

with other class members when plaintiffs and class members have suffered the same injury because

they share the same interest in vigorously pursuing the claims of the class.” Cymbalista v. JP

Morgan Chase Bank, N.A., 20-cv-456 (RPK) (LB), 2021 WL 7906584, *5 (E.D.N.Y. May 25,

2021) (citations and quotations omitted), report and recommendation adopted, (E.D.N.Y. Nov.

22, 2021).

The First Motion provided insufficient information about Sorbie and, as such, the Court

could not assess whether Sorbie would adequately represent NYLL Class. See March 13 Op. at

20. This Motion, however, asserts that Sorbie has “vigorously pursued” the class’s claims by,

among other things, “assisting in the preparation of [his] complaints and motions, responding to

discovery demands and interrogatories by producing documents and providing information for

interrogatory responses, and having numerous calls with Plaintiffs’ [C]ounsel to discuss litigation

and settlement strategy.” Stipulation Regarding Settlement ¶ 8, ECF 273-6. Sorbie was also

prepared, and still is, to be deposed, and has been integral to this case’s settlement, including by

participating in mediation and the May 1, 2023, settlement conference. See id. Sorbie also

“procured agreed upon modifications to Unisys’ termination agreement for those [Settlement

Members] whose employment was terminated by Unisys during the pendency of this litigation.”

Id. ¶ 47. Indeed, these efforts demonstrate that Sorbie has “vigorously pursued the settlement

class’s interests.” See, e.g., Amigon v. Safeway Constr. Enters, LLC, 20-cv-5222 (PK), 2024 WL

5040436, *4 (E.D.N.Y. Dec. 9, 2024) (finding that the plaintiff vigorously pursued the settlement

class’s interests where plaintiff assisted with “the preparation of the initial complaint and the

amended complaint [and] the factual investigations of the claims,” produced documents, provided

information used in the damages analysis, attended a deposition, and attended the mediation

session).

Plaintiff’s Counsel is “unaware of any conflict” between Sorbie and the class and asserts

that Sorbie “performed the same/similar work . . . for a similar portion of the workday,” for the

same employer, in the same assigned work location, during the same time period, was paid in the

same manner, and is seeking the same damages as the class. See Abelove Decl. ¶ 24. Indeed,

Sorbie shares the same interests, and seeks the damages as the NYLL Class, demonstrating that he

can adequately represent the class’s interests, such that this factor weighs in favor of preliminary

approval. See, e.g., Schutter v. Tarena Int’l, Inc., 21-cv-3502 (PKC), 2024 WL 4118465, *5

(E.D.N.Y. Sept. 9, 2024) (finding class representatives adequate where their interests were aligned

with those of the class because they shared “the common objective of maximizing their recovery .

. . for the same alleged misconduct.”); Cymbalista, 2021 WL 7906584, at *5 (finding class

representatives adequately represented where they suffered the same injury and sought to recover

the same damages as all the members of the proposed class); see Amigon, 2024 WL 5040436, at

*4 (finding that the plaintiff vigorously pursued the settlement class’s interests where there was no

indication that his interests were antagonistic to other class members).

b. Adequate Class Counsel

“Courts find class counsel qualified when they are experienced and knowledgeable in the

area of complex class litigations.” Cymbalista, 2021 WL 7906584, at *5 (citations and quotations

omitted). Courts “must pay close attention to the negotiating process, to ensure that . . . counsel

have possessed the experience and ability, and have engaged in the discovery[] necessary” to

effectively represent the class’s interests. D’Amato, 236 F.3d at 85 (citations omitted) (upholding

finding that class counsel provided adequate representation where District Court had considered

“whether plaintiffs’ counsel possessed the experience and ability to represent effectively the

class’s interests”); see Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment (“For

example, the nature and amount of discovery in this or other cases . . . may indicate whether

counsel negotiating on behalf of the class had an adequate information base.”).

The First Motion failed to “provide any information about proposed class counsel’s

previous experience litigating labor law actions or any experience with class or collective actions”

such that the Court could not find that class counsel adequately represented the NYLL Class.

March 13 Op. at 21. This Motion, however, provides sufficient information for the Court to find

that Class Counsel can adequately represent the class.

According to the sworn Abelove Declaration (a different attorney declaration from the one

submitted with the First Motion), Class Counsel collectively have 50+ years of trial experience,

60+ years employment litigation experience, and have previously been appointed class counsel in

another FLSA NYLL litigation in this Circuit. See Abelove Decl. ¶ 27. Additionally, Attorney

Abelove, who has practiced labor and employment law since 1994, has “tried numerous

employment cases” in this District, including one “concerning unpaid salary and commissions.”

See id. ¶ 28. He is also defense counsel in an employment and labor class action in this District

that recently settled. See id. Attorney Abelove and Attorney Pagano also represent a conditionally

certified class and collective in a prompt-payment FLSA case in this Circuit. See id. ¶ 29.

As such, Class Counsel collectively possess the experience and ability to adequately

represent the proposed class here, such that this factor weighs in favor of preliminary approval.

See, e.g., Amigon, 2024 WL 5040436, at *4 (finding class counsel’s “extensive experience

litigating and settling wage and hour cases and other employment cases” weighed in favor of

preliminary approval); Schutter, 2024 WL 4118465, at *5 (finding class counsel adequate where

class counsel had “successfully litigated dozens of class actions in recent decades, some in this

District.”); In re Northern Dynasty Minerals Ltd. Sec. Litig., 20-cv-5917 (TAM), 2023 WL

5511513, *6 (E.D.N.Y. Aug. 24, 2023) (considering counsel’s previous appointment as class

counsel in other cases in determining that class counsel provided adequate representation); see

also D’Amato, 236 F.3d at 85 (upholding finding that class counsel provided adequate

representation where plaintiffs’ counsel were “extremely experienced” and involved in other

litigations of similar subject matter).

Moreover, Class Counsel have engaged in extensive discovery efforts throughout the

litigation. See Abelove Decl. ¶ 30. Class Counsel have also “overcome motions to dismiss, a

judicial order to show cause with respect to standing, and a request for interlocutory appeal.” Id.

Indeed, these facts also show that Class Counsel can adequately represent the proposed class such

that this factor weighs in favor of approval. See, e.g., Amigon, 2023 WL 5040436, at *4 (finding

that plaintiff’s counsel’s expenditure of “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” weighed in favor of preliminary

approval); Villa v. Highbury Concrete Inc., 17-cv-984 (PK), 2022 WL 19073649, *3 (E.D.N.Y.

Nov. 25, 2022) (“Plaintiff’s Counsel . . . have ably conducted the litigation . . . [they] have engaged

in discovery, motion practice, and settlement discussions.”); Northern Dynasty Minerals, 2023

WL 5511513, at *6 (considering counsel’s “thorough investigation . . . into the underlying facts

and applicable law” as well as their “extensive” “efforts to investigate and substantiate alleged

violations” in finding adequate representation).

2. Arm’s-Length Negotiations

In deciding whether a proposed settlement agreement is fair, the court must also consider

whether the parties negotiated the proposed settlement at arm’s length. Fed. R. Civ. P. 23(e)(2)(B).

However, the court may not presume a settlement agreement’s fairness based solely on its arm’s-

length negotiation. Moses, 79 F.4th at 243.

Judge Choudhury originally found that the Parties had already engaged in three years of

litigation (including a motion to dismiss and a request for interlocutory appeal), discovery

(including some expert discovery), and settlement negotiations (including an attempt at

mediation). See March 13 Op. at 21. Judge Choudhury further found that the record did not

indicate any bad faith or collusion. See id. Judge Choudhury concluded that this factor likely

weighed in favor of preliminary approval. See id. This Court concurs and finds that this factor

likely weighs in favor of preliminary approval of the Settlement Agreement here.

3. Adequate Relief for the Class

The Court next assesses whether relief for the class is adequate, considering:

(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 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–iv). “The Court also considers the proposed release from liability as

an additional factor under this section, as it affects the determination of the fairness,

reasonableness, and adequacy of class relief.” Payment Card, 330 F.R.D. at 36.

a. Costs, Risks, and Delay of Trial and Appeal

The “costs, risks, and delay” factor implicates several Grinnell factors, which the guides

the Court’s assessment of whether this Rule 23(e)(2) factor will likely weigh in favor of granting

final approval. Payment Card, 330 F.R.D. at 36. Those Grinnell factors are: “(i) the complexity,

expense and likely duration of the litigation; (ii) the risks of establishing liability; (iii) the risks of

establishing damages; and (iv) the risks of maintaining the class through the trial.” Id. In sum,

the Court must assess whether the proposed settlement would result “in substantial and tangible

present recovery, without the attendant risk and delay of trial.” Id.

i. Litigation’s Complexity, Expense, and Likely Duration

“[C]lass action suits in general have a well-deserved reputation as being the most

complex.” In re Sumitomo Copper Litig., 189 F.R.D. 274, 281 (S.D.N.Y. 1999) (citations and

quotations omitted). Given a class action suit’s complexity, “it is reasonable to assume” that,

without a settlement, continued litigation will require “extensive time and expense.” Garland v.

Cohen & Krassner, 8-cv-4626 (KAM), 2011 WL 6010211, at *7 (E.D.N.Y. Nov. 29, 2011).

Judge Choudhury originally found that this factor would have weighed in favor of

preliminary approval if Sorbie had properly established certain facts through a sworn statement.

See March 13 Op. at 23. This time, Sorbie has done so. See generally Abelove Decl.

Absent settlement, the Parties will need to conduct further discovery, including Plaintiff

conducting two Rule 30(b)(6) depositions of Unisys, and Unisys conducting 37 depositions of the

named plaintiffs and the members of the collective. Id. ¶ 40. The estimated total fees and costs

of these depositions is over $750,000, as each attorney would have to devote approximately 390

hours to working on, and preparing for, the depositions. Id. The attorneys would incur an

estimated additional several hundred thousand dollars in fees were the Parties to proceed to

summary judgment or trial, which would first involve litigation over class certification. Id. ¶ 41.

There would also be “costly” and “significant out of pocket expenses” were the Parties to conduct

expert discovery. Id. ¶ 42. All in, the Parties expect to incur over $1.5 million in fees and costs

to continue litigating this matter. Id.

Unquestionably, continued litigation would be complex and result in the significant

expenditure of time, money, and other resources. As such, this factor weighs in favor of

preliminary approval. See Villa, 2022 WL 19073649, at *4 (finding this factor weighed in favor

of preliminary approval where additional litigation “would require both sides to expend

considerable time and resources.”); Payment Card, 330 F.R.D. at 36 (“Because of the complexity

and difficulty of the issues in this case, it requires, and would continue to require, costly counsel

and experts, and a wealth of time. This subfactor will likely weigh in favor of granting final

approval.”).

ii. Risks of Establishing Liability

“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 v. Oasmia

Pharm. AB, 19-cv-4349 (NGG), 2021 WL 1259559, *5 (E.D.N.Y. Jan. 6, 2021) (citing In re Glob.

Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 459 (S.D.N.Y. 2004)). The Court need not

“adjudicate the disputed issues or decide unsettled questions” to assess such risks. Glob. Crossing

Sec., 222 F.R.D. at 459.

Judge Choudhury originally found that there was sufficient risk of establishing liability

such that this favor likely weighed in favor of preliminary approval. See March 13 Op. at 25. This

remains true. Indeed, the “fact-intensive nature of FLSA and NYLL claims” lend themselves to

“risk in proving liability . . . .” Villa, 2022 WL 19073649, at *4.

The Motion describes five risks to establishing liability: (1) whether there is even a cause

of action for violations of NYLL § 191(1)(a); (2) the possibility that Plaintiff and the proposed

class members were not “manual workers”; (3) possible legislative action that would alter NYLL

§ 191(1)(a); (4) the possibility that the Court will find that Unisys acted in good faith, thereby

reducing or eliminating liquidated damages; and (5) the possibility that Unisys successfully argues

that liquidated damages are inappropriate, thus reducing the overall damages award. See Mem.

Supp. at 21–22, ECF No. 273-3; Abelove Decl. 43–47. Without reaching the merits of these

arguments—which vary in likelihood—there is enough risk in establishing liability that this factor

likely weighs in favor of preliminary approval. See Cymbalista, 2021 WL 7906584, at *6 (“given

the inherent risks and duration of litigation, the certainty of a substantial and speedy recovery in

this case weighs in favor of settlement approval.”); id. at *7 (noting that the possibility of a cause

of action becoming unavailable, and the inherent delay in dispositive motion practice, support

approval of a proposed settlement).

iii. Risks of Establishing Damages

In addition to the risks of establishing liability, the Court assesses the risks of establishing

damages. See Payment Card, 330 F.R.D. at 36. After all, “the history of litigation is replete with

cases in which plaintiffs succeeded at trial on liability, but recovered no damages, or only

disappointing damages, at trial, or on appeal.” Sumitomo Copper, 189 F.R.D. at 283.

The First Motion did not contain sufficient information for the Court to analyze this factor.

See March 13 Op. at 25. There, as here, Sobie’s arguments regarding the risks of establishing

damages generally overlapped with the risks of establishing liability.

However, Sorbie now identifies at least one risk to establishing damages unique from the

risks of establishing liability: namely, that expert discovery has still not occurred and, as such,

Unisys has not yet provided Sorbie with expert evidence rebutting Sorbie’s expert’s damages’

calculations. See Abelove Decl. ¶ 48. “Damages at trial inevitably . . . involve a ‘battle of the

experts.’” Sumitomo Copper, 189 F.R.D. at 283. “[I]t is virtually impossible to predict with any

certainty which testimony would be credited, and ultimately, which damages would be found to

have been caused by actionable, rather than the myriad of non-actionable factors.” Id. (citation

omitted). Although Sorbie does not yet know what Unisys’s expert’s damages calculation will be,

there are risks to establishing damages where multiple expert opinions are at play. See Payment

Card, 330 F.R.D. at 39 (noting that when parties have submitted competing expert reports on

damages, “damages would likely be heavily contested.”). Accordingly, this factor weighs in favor

preliminary approval.

iv. Risks of Maintaining the Class

The risks of maintaining a class through trial weigh in favor of settlement where the

defendant would likely oppose class certification were the case to be litigated. Payment Card, 330

F.R.D. at 39–40. Judge Choudhury found that this factor likely weighed in favor of preliminary

approval, as the class had not yet been certified, and Unisys had consented to class certification

for settlement purposes only. See March 13 Op. at 26. This remains true, as Plaintiff has still not

moved for class certification, and Unisys only agreed to class certification for settlement purposes.

Abelove Decl. ¶¶ 51, 53. Were litigation to continue, Unisys would oppose Plaintiff’s attempts to

seek certification, and attempt to decertify and class before final judgment. Id. ¶ 52; Stipulation

Regarding Settlement ¶ 24. This factor therefore weighs in favor or preliminary approval. See

Payment Card, 330 F.R.D. at 40 (“there is no guarantee that the class could be certified if the

parties proceeded with the litigation, and Defendants have indicated that they are only consenting

to class certification for the purposes of settlement.”); see also Villa, 2022 WL 19073649, at *4

(acknowledging risk that defendants could move to decertify class).

b. Effectiveness of Proposed Distribution Method

The Court must evaluate “the effectiveness of any 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). The allocation formula must be fair and adequate, but “need only have a

reasonable, rational basis, particularly if recommended by experienced and competent class

counsel.” In re WorldCom, Inc. Sec. Litig., 388 F.Supp.2d 319, 344 (S.D.N.Y. 2005) (citing Maley

v. Del Glob. Techs. Corp., 186 F.Supp.2d 358, 367 (S.D.N.Y.2002)). It “need not be perfect.” In

re EVCI Career Colls. Holding Corp. Sec. Litig., 5-cv-10240 (CM), 2007 WL 2230177, at *11

(S.D.N.Y. July 27, 2007).

Judge Choudhury found that the original proposed settlement agreement’s distribution plan

likely met the Rule 23(e)(2)(c)(ii) standard—as it was similar to other court-approved plans. See

March 13 Op. at 27. However, the original distribution plan was problematic in at least one

respect. Under the plan, any residual settlement funds would be distributed to an unspecified,

nonsectarian non-profit charitable organization “selected by the Settlement Class Representative

in consultation with [] Unisys and approved by the Court, or as otherwise directed by the Court.”

Id. The plan thus failed to “indicate whether the charitable organization that would receive any

remaining settlement funds would have a mission or engage in work related to the purpose of the

lawsuit.” Id. The current Settlement Agreement, however, addresses this issue.

The donation of residual settlement funds is referred to as a “cy pres” designation. See

Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 436 (2d Cir. 2007) (“Cy Pres means ‘as

near as possible’ and ‘courts have utilized Cy Pes distributions where . . . there are unclaimed

funds.”) (citations omitted). In the class action settlement context, cy pres awards may be made

when, for example, distribution of the remaining funds to the class is infeasible, and the designees

reasonably approximate the class’s interests. See In re Citigroup Inc. Sec. Litig., 199 F. Supp. 3d

845, 852–53 (S.D.N.Y. 2016). Indeed, “[t]he permissibility of distributions pursuant to cy pres

principles is well-established so long as class members benefit, even if indirectly, from the

distribution.” Reyes v. Summit Health Mgmt., LLC, 22-cv-9916 (VSB), 2024 WL 472841, *5

(S.D.N.Y. Feb. 6, 2024). As such, courts require some showing that proposed cy pres recipients

reasonably approximate the class’s interests. See, e.g., Marin v. Apple-Metro, Inc., 12-cv-5274

(CLP), 2024 WL 4363629, *11 (E.D.N.Y. Mar. 29, 2024) (seeking justification as to why a

selected cy pres recipient reasonably approximates the interests of the class).

The current Settlement Agreement designates the National Institute for Workers’ Rights, a

nonprofit, as the recipient of any remaining settlement funds following the distribution and the

payment of costs, fees, and expenses. Settlement Agreement § 7. e. According to their website,

the organization “aspire[s] to a future in which all workers are treated with dignity and respect,

and if their rights are violated, workers can get swift justice.” Abelove Decl. ¶ 57. Such a nonprofit

sufficiently approximates the NYLL Class’s interests such that it is an acceptable cy pres designee,

and such that the distribution plan likely weighs in favor of preliminary approval. See Villa, 2022

WL 19073649, at *8 (preliminarily approving NYLL class action settlement where cy pres

designee was “a charity dedicated to employee rights”).

c. Proposed Attorneys’ Fees Award

Courts must account for “the terms of any proposed award of attorney’s fees.” Fed. R. Civ.

P. 23(e)(2)(C)(iii). “This review provides a backstop that prevents unscrupulous counsel from

quickly settling a class’s claims to cut a check.” Fresno Cnty. Emps.’ Ret. Ass’n v.

Isaacson/Weaver Fam. Tr., 925 F.3d 63, 72 (2d Cir. 2019). “[W]hen reviewing the substantive

fairness of a proposed settlement, ‘the district court is required to review both the terms of the

settlement and any fee award encompassed in a settlement agreement’ in tandem.” Moses, 79

F.4th at 244 (citing Fresno Cnty. Emps.’ Ret. Ass’n, 925 F.3d at 72).

Under the Settlement Agreement, Class Counsel will seek first reimbursement of their

expenses, and in attorneys’ fees one third of the remaining settlement fund, not exceeding one third

of Unisys’s $625,000 payment. Judge Choudhury found that the proposed amount in attorneys’

fees “appear[ed] to be reasonable.” March 13 Op. at 29. This Court concurs as, indeed, “[c]ourts

in this District have approved fees as high as 33.5% from comparable class settlement funds,

finding that they are well within the applicable range of reasonable percentage fund awards.” In

re GSE Bonds Antitr. Litig., 414 F. Supp. 3d 686, 695 (S.D.N.Y. 2019). As such, this factor likely

weighs in favor of preliminary approval.

d. Agreement Under Rule 23(e)(3)

The Court must also consider “any agreement required to be identified under Rule

23(e)(3),” Fed. R. Civ. P. 23(e)(2)(c)(iv), which includes “any agreement made in connection with

the proposal.” Fed. R. Civ. P. 23(e)(3). “Rule 23(e)(3) is aimed at revealing ‘undertakings that,

although seemingly separate, may have influenced the terms of the settlement by trading away

possible advantages for the class in return for advantages for others,’ namely, the representative

plaintiffs or their attorneys.” Northern Dynasty Minerals, 2023 WL 5511513, at *9 (citing Fed.

R. Civ. P. 23 advisory committee’s note to 2003 amendment). Here, the Parties are unaware of

any agreement that would require disclosure under Rule 23(e)(3). Stipulation Regarding

Settlement ¶ 43. “Therefore, this factor ‘has no bearing on the preliminary approval analysis.’”

Cymbalista, 2021 WL 7906584, at *9 (citing GSE Bonds, 414 F. Supp. 3d at 696).

e. Release of Liability

“[C]lass action releases may include claims not presented and even those which could not

have been presented as long as the released conduct arises out of the ‘identical factual predicate’

as the settled conduct.” Payment Card, 330 F.R.D. at 42. “[R]eleases cannot be boundless,” id.

at 43, and “[c]ourts have denied preliminary approval where releases from liability are . . . overly

broad.” Id. at 42. Releases are further “limited by . . . adequacy of representation doctrines.” Id.

at 42 (citations and quotations omitted).

The Settlement Agreement contains several release provisions. See Settlement Agreement

§ 14. NYLL Class members (who have not timely opted out) agree to discharge Unisys:

from any and all Claims . . . relating to or based on any state or local law . . .

pertaining in any way to wages or hours worked, including minimum wage,

overtime, unreimbursed expenses, interest, liquidated damages, punitive damages,

attorneys’ fees, costs and expenses, hours of work, record keeping/wage statements,

payment of wages and overtime, and/or frequency of pay while employed by

[Unisys], including . . . all state and local wage and hour . . . Claims that were

asserted or could have been asserted against [Unisys] in this Action, including

under the New York State Labor law and its related regulations and wage orders,

regarding events that occurred or are alleged to have occurred from the beginning

of time until the date of the Final Approval Order.

Id. § 14. a. As this release is limited to claims arising from the same factual predicate as this case’s

claims, it is likely permissible. Although Judge Choudhury could not assess the permissibility of

a similar release contained in the original proposed settlement agreement due to Plaintiff’s failure

to provide sufficient information regarding the adequacy of Plaintiff’s and Class Counsel’s

representation, this Motion remedies that issue. See March 13 Op. at 30–31.

Additionally, Class Counsel and Sorbie agree to “release, acquit, and forever discharge any

Claim that he or they may have against [Unisys] for attorneys’ fees, expenses, or costs associated

with Class Counsel’s representation of the Settlement Class Representative and the Settlement

Class/Collective.” Settlement Agreement § 14. C. As Judge Choudhury found, “[t]his provision

is likely permissible because it would only release claims for attorneys’ fees, costs, and expenses

that arise out of the ‘identical factual predicate as the settled conduct.’” March 13 Op. at 31 (citing

Payment Card, 330 F.R.D. at 42)).

Notably, the original proposed settlement agreement contained a general release of claims.

See March 13 Op. at 31–32. That release was overbroad, as it released Unisys from claims other

than wage and hour claims (and claims for attorneys’ fees, costs, and expenses). Id. at 31.

Considering such a broad release, Judge Choudhury could not find the original proposed settlement

agreement to be fair, reasonable, or adequate. See id. at 32. However, the Parties have since

removed the general release from the Settlement Agreement and, therefore, the general release no

longer weighs against preliminary approval. See Stipulation Regarding Settlement ¶¶ 44, 45.

The Settlement Agreement also contains an additional “covenant not to sue” that reinforces

the releases.1 See Settlement Agreement § 15. The provision provides, in part:

The Settlement Class Representative, New York State Settlement Class Members

who do not timely Opt-out of this Settlement, and Federal FLSA Settlement

Collective Members who submit a Valid Claim Form and thus become

Participating Settlement Members promise not to file a lawsuit in any court, or

participate as a party, including, but not limited to, as a class or collective action

member in any legal proceedings, in any forum, against [Unisys], for any Claim

included and released in the Release(s) in Sections 14(a) through 14(c), above as

applicable.

As this provision is also limited to claims arising from the same factual predicate as those of this

case, it is likely permissible.

4. Equitable Treatment of Class Members

The Court must consider whether the proposed settlement “treats class members equitably

relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). Consideration under this factor “could include

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.” Payment Card, 330 F.R.D. at 47 (citing Fed. R.

Civ. P. 23 advisory committee’s note to 2018 amendment).

Judge Choudhury found that the original proposed settlement agreement’s distribution plan

appeared appropriate. See March 13 Op. at 33. Indeed, the distribution plan involves paying out

the legal costs, attorneys’ fees, administrator’s fee, and incentive award, followed by a pro rata

1 The Settlement Agreement also contains a release applicable to the FLSA Collective members (who become

Participating Settlement Members). Settlement Agreement § 14. b. Under the release, those individuals agree to

discharge Unisys from: “any and all Claims . . . relating to, or based on federal law . . . pertaining in any way to wages

or hours worked, including minimum wage, overtime, unreimbursed expenses, interest, liquidated damages, punitive

damages, attorneys’ fees, costs and expenses, hours of work, record keeping/wage statements, payment of wages and

overtime, and/or frequency of pay while employed [Unisys], including . . . all Claims that were asserted or could have

been asserted now or in the future against [Unisys] in this Action, including under the Fair Labor Standards Act, 29

U.S.C. § 201, et seq., and its regulations, regarding events that occurred or are alleged to have occurred from the

beginning of time until the date of the Final Approval Order.” Id.

distribution to the Participating Settlement Members. See Settlement Agreement §§ 5–9. Courts

generally approve such proportional distribution plans. See, e.g., Payment Card, 330 F.R.D. at 47;

see Mikhlin, 2021 WL 1259559, at *8 (collecting cases).

However, the First Motion failed to provide sufficient information regarding Sorbie’s role

in this litigation for the Court to determine whether Sorbie’s $10,000 incentive was appropriate.

March 13 Op. at 34–35. The First Motion also failed to provide sufficient information to calculate

the average Participating Settlement Member’s award such that the Court could not determine

whether Sorbie’s incentive award was excessive in comparison. See id. at 34. This Motion

addresses those issues.

“Incentive awards are not uncommon in class action cases and are within the discretion of

the court. Courts look for the existence of special circumstances when determining whether an

award is justified and, if so, in what amount.” Torres v. Toback, Bernstein & Reiss LLP, 11-cv-

1368 (NGG) (VVP), 2014 WL 1330957, *3 (E.D.N.Y. Mar. 31, 2014) (citations and quotation

marks omitted). Such special circumstances may include, for example:

the personal risk (if any) incurred by the plaintiff-applicant in becoming and

continuing as a litigant, the time and effort expended by that plaintiff in assisting in

the prosecution of the litigation or in bringing to bear added value (e.g., factual

expertise), any other burdens sustained by that plaintiff in lending himself or herself

to the prosecution of the claim, and of course, the ultimate recovery.

Id. (citations omitted). However, courts must “reject incentive awards that are excessive compared

to the service provided by the class representative or that are unfair to the absent class members.”

Moses, 79 F.4th at 245. Incentive awards must be “reasonable and promote equity between class

representatives and absent class members.” Id.

According to the Abelove Declaration, Sorbie “has been vital to the success of this four-

year-long litigation.” Abelove Decl. ¶ 60. Sorbie: has been in regular contact with Class Counsel

providing information “vital” to the litigation; assisted Class Counsel in preparing the complaints;

provided “vital” documents in response to several sets of document requests; reviewed, and

provided insight on, documents that Unisys produced; answered several sets of interrogatories;

and was instrumental in achieving the settlement. Id. The Abelove Declaration also notes that as

the other named Plaintiffs signed releases with Unisys, there would be no action against Unisys

but for Sorbie’s entering the litigation. Id. Finally, through his efforts, Sorbie “procured agreed

upon modifications to Unisys’ termination agreement for those Settlement Members whose

employment was terminated by Unisys during the pendency of this action.” Id. These facts

suggest that Sorbie has “expended time and effort . . . in assisting in the prosecution of the

litigation,” and that, as such, an incentive award to Sorbie is appropriate. Torres, 2014 WL

1330957, at *3.

That said, the Parties cannot yet precisely determine how the $10,000 incentive award will

compare to the NYLL Class members’ individual recovery amounts. They calculate that:

If the Court approves the $35,000 in legal costs and 1/3 of the balance as attorney fees as

well as authorizes payment to the third-party administrator of $11,600 and the service

award of $10,000, the net to be distributed would be $371,733. Given the fact that only

those who submit claims will be paid it is impossible to ascertain at this point the amount

each person will get. If all 295 New York State Settlement Class Members submitted

claims and all worked a comparable amount of overtime each person’s recovery would be

approximately $1,260.11. Sorbie’s service fee award would not be disproportionate to that

amount given his efforts on behalf of the New York State Settlement Class Members

described herein. The greater likelihood is that approximately 10% of the New York State

Settlement Class Members will submit claims. Assuming they each worked a comparable

amount of overtime each person’s recovery would be approximately $12,601.13, making

Sorbie’s service award less than each claimant’s individual award.

Abelove Decl. ¶ 61.

Based on those estimates—i.e. average recovery per NYLL Class member ranging from

$1,260.11 to $12,601.13—$10,000 is not so disproportionate or unreasonable, at this juncture, as

to preclude approval of the settlement. See Kindle v. Dejana, 308 F.Supp.3d 698, 718 (E.D.N.Y.

2018) (“Plaintiff did expend significant time and effort in prosecuting this action which ultimately

resulted in a favorable settlement for the Plaintiff as well as the class members. Therefore, a

reasonable service award is appropriate. Plaintiff has requested an award of $10,000 and the Court

finds this amount to be reasonable under the circumstances.”); id. (collecting cases approving

$10,000 incentive awards); see also Schutter, 2024 WL 4118465, at *10 (“while the incentive

award . . . is around $5,000 greater than the estimated average class recovery, the Court does not

find this difference to be so great as to be unreasonable in light of Lead Plaintiff . . . having . . .

more frequent interactions with counsel for case-related matters.”); Northern Dynasty Minerals,

2023 WL 5511513, at *9 (finding it unlikely that a requested award of up to $25,000, split between

two people, would preclude final settlement approval).

5. Defendant’s Ability to Withstand Greater Judgment

“Under the Grinnell analysis, the court also considers Defendant[’s] ability to withstand a

greater judgment than that provided for in the proposed settlement.” Rosenfeld v. Lenich, 18-cv-

6720 (NGG), 2021 WL 508339, *7 (E.D.N.Y. Feb. 11, 2021). Such an ability, “standing alone,

does not suggest that the settlement is unfair.” Northern Dynasty Minerals, 2023 WL 5511513, at

*10 (citing Charron v. Pinnacle Grp. N.Y. LLC, 874 F.Supp.2d 179, 201 (S.D.N.Y. 2012)). To

that end, a large corporate defendant that can withstand greater judgment “should not in and of

itself undermine an otherwise reasonable settlement agreement.” Cymbalista, 2021 WL 7906584,

at *10. A defendant’s cooperation “tends to offset the fact that they would be able to withstand a

larger judgment.” GSE Bonds, 414 F.Supp.3d at 696 (citations omitted).

The First Motion did not analyze this factor, stating merely that the factor was “not

currently at issue.” March 13 Op. at 36. In this Motion, however, the Parties concede that

Unisys—with its 2023 FY revenue approximating $2.02 billion—could withstand greater

judgment. See Stipulation Regarding Settlement ¶ 49. Even so, “this fact alone does not

undermine the reasonableness” of the Settlement Agreement. GSE Bonds, 414 F.Supp.3d at 696

(citing In re Vitamin C Antitr. Litig., 6–md–1738 (BMC), 2012 WL 5289514, *6 (E.D.N.Y. Oct.

23, 2012)).

The First Motion also made no assertions with respect to Unisys’s cooperation. See March

13 Op. at 35–36. Judge Choudhury even noted that while Unisys did not oppose the First Motion,

it did not join it either. Id. at 36 n.11. This time, however, Unisys joins the Motion, and the Parties

stipulate that Unisys “cooperated in this settlement by assisting with the drafting and preparation

of the initial settlement agreement and motion papers, assisting with the drafting and preparation

of the revised settlement agreement and motion papers, and joining in the instant motion.”

Stipulation Regarding Settlement ¶ 50. As such, even if this factor does not weigh strongly in

favor of preliminary approval, it does not, by itself, defeat preliminary approval. See GSE Bonds,

414 F. Supp. 3d at 696.

6. Settlement’s Range of Reasonableness

Under Grinnell, the Court also considers both the “range of reasonableness of the

settlement 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.” Payment Card, 330

F.R.D. at 47–48. These two factors “are often combined for the purposes of analysis.” Id. at 48.

“The range of reasonableness for a settlement is a range which recognizes the uncertainties of law

and fact in any particular case and concomitant risks and costs necessarily inherent in taking any

litigation to completion.” Mikhlin, 2021 WL 1259559, at *8 (citations and quotations omitted). A

proposed settlement that is only a “fraction of the potential recovery does not, in and of itself,

mean that the proposed settlement is grossly inadequate and should be disapproved.” Payment

Card, 330 F.R.D. at 48 (citing Grinnell, 495 F.2d at 455).

Unisys has agreed to settle the NYLL Class’s and FLSA Collective’s claims for $625,000.

Settlement Agreement § 5. a. Sorbie’s expert estimates that the NYLL Class’s damages could

amount, best-case scenario, to $3.8 million. This places the settlement amount at approximately

16.5% of the NYLL Class’s best possible award. While Judge Choudhury found that Sorbie’s

estimated percentage was in line with percentages that other courts have found reasonable, see,

e.g., GSE Bonds, 414 F.Supp.3d at 697, Judge Choudhury could not determine whether the

settlement amount was within the range of reasonableness due to Sorbie’s failure to explain how

he or his expert arrived at the $3.8 million number. March 13 Op. at 37. Sorbie had also failed to

indicate whether Unisys disputed the $3.8 million number. Id. Here, Sorbie addresses those

problems.

As explained in the Abelove Declaration, Plaintiff’s expert arrived at $3.8 million by

reviewing “data provided by Unisys for the New York State Settlement Class Members, including

name, employee ID, employee position, earnings codes, hours worked, earnings, pay period

beginning date, pay period ending date, and check date.” Abelove Decl. ¶ 67. As also explained,

Unisys does not dispute this number. See Stipulation Regarding Settlement ¶ 53. Per the joint

Stipulation Regarding Settlement, the “Parties agree that $625,000, representing approximately

16.5% of Plaintiff’s expert calculations is a fair resolution given all factors including the incredible

cost of continuing the litigation.” Id. As such, this factor weighs in favor of preliminary approval.

7. Class’s Reaction to the Settlement

The Court also considers the class’s reaction to the proposed settlement. See Grinnell, 495

F.2d at 463. Generally, this factor “cannot be considered until after notice has been provided.”

Mikhlin, 2021 WL 1259559, at *4 n.2. As such, courts do not usually consider this factor at the

preliminary approval stage. See, e.g., id.; Northern Dynasty Minerals, 2023 WL 5511513, at *9

n.10 (“The second Grinnell factor, ‘the class’s reaction to the settlement,’ cannot be assessed at

this time.”). Such is the case here.

Even so, to “put the Court at ease,” Mem. Supp. at 29, Plaintiff’s counsel notes that “the

four lead Plaintiffs are all pleased with the resolution of the matter and have expressed their support

of and intent to participate in the settlement.” Abelove Decl. ¶ 63. Plaintiff’s counsel also notes,

somewhat vaguely, that the settlement was “well received” with an unspecified number of the

FLSA Collective members who, indeed, overlap with the NYLL Class. Id. ¶ 64. Surely, this bodes

well for the Settlement Agreement. However, as Plaintiff can only cite positive sentiments from

a handful of the 295 people in the NYLL Class, this Court declines to address this factor at this

time. See Rosenfeld, 2021 WL 508339, at *4 n.2 (declining to consider this factor at the

preliminary approval stage).

B. Likely Class Certification

To preliminarily approve a class action settlement, the Court must also find that it “will

likely be able to . . . certify the class for purposes of judgment on the proposal.” Fed. R. Civ. P.

23(e)(1)(B). The Court can only certify a class if “(1) the class is so numerous that joinder of all

members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims

or defenses of the representative parties are typical of the claims or defenses of the class; and (4)

the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ.

P. 23(a). These requirements “are known as numerosity, commonality, typicality, and adequate

representation.” Elisa W. v. City of New York, 82 F.4th 115, 122 (2d Cir. 2023). There is also “an

implied requirement of ascertainability.” Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d

Cir. 2015) (citations and quotations omitted). Additionally, for the Court to certify the class, the

plaintiff must also “establish (1) predominance—‘that the questions of law or fact common to class

members predominate over any questions affecting only individual members’; and (2)

superiority—‘that a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.’” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir.

2015) (quoting Fed. R. Civ. P. 23(b)(3)) (further citations omitted); see Fed. R. Civ. P. 23(b)(3).

The First Motion failed to provide sufficient information about the NYLL Class, leaving

the Court unable assess the likelihood of class certification. This Motion, however, remedies that

issue. Accordingly, as discussed below, the Court will likely be able to certify the NYLL Class.

1. Numerosity

A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ.

P. 23(a)(1). The Court presumes numerosity where there are 40 class members. Amigon, 2024

WL 5040436, at *7 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.

1995)); Northern Dynasty Minerals, 2023 WL 5511513, at *11 (“As a general rule, when a class

consists of forty or more members, numerosity is presumed.”). Here, the Parties agree that the

NYLL Class is 295 people. Stipulation Regarding Settlement ¶ 58. As this number well exceeds

40, joinder of 295 people is “presumptively impractical,” and the Court will likely find numerosity

at the final approval stage. Amigon, 2024 WL 5040436, at *7 (finding that a class of approximately

91 individuals meets the numerosity requirement).

2. Commonality

“Commonality requires a showing that common issues of fact or law affect all class

members.” Northern Dynasty Minerals, 2023 WL 5511513, at *12 (citing In re Sadia, S.A. Sec.

Litig., 269 F.R.D. 298, 304 (S.D.N.Y. 2010)). Commonality exists where the class members have

suffered the same injury. Id.; Cymbalista, 2021 WL 7906584, at *11. “Class members’ claims do

not have to be identical but ‘there must be issues whose resolution will affect all or a significant

number of the putative class members.’” Cymbalista, 2021 WL 7906584, at *11 (citing Johnson,

780 F.3d at 137). “In other words, the relevant inquiry is whether a classwide proceeding is

capable of generating common answers apt to drive the resolution of the litigation.” Jacob v.

Duane Reade, Inc., 602 F. App’x 3, 6 (2d Cir. 2015) (citations and quotations omitted). “In wage

cases, the commonality requirement is usually satisfied where the plaintiffs allege that defendants

had a common policy or practice of unlawful labor practices.” Rosario v. Valentine Ave. Disc.

Store, Co., 10-cv-5255, 2013 WL 2395288, *5 (E.D.N.Y. May 31, 2013), report and

recommendation adopted, 2013 WL 4647494 (E.D.N.Y. Aug. 29, 2013).

Here, Sorbie argues, and Unisys does not dispute, that there are three questions common

to every member of the NYLL Class: “(1) whether the Settlement Members are manual workers;

(2) were they paid weekly and within seven calendar days of the end of the work week in which

wages were earned; and (3) what are the damages for violation of NYLL § 191(1)(a).” Mem.

Supp. at 31; Stipulation Regarding Settlement ¶ 60. However, the common question that the

NYLL Class really members share, for purposes of the commonality requirement, is whether

Unisys had “a common unlawful policy resulting in wage and hour violations of such a nature 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.’” Zhang v. Wen Mei, Inc., 14-cv-1647 (JS)(SIL), 2017 WL 8813132,

*16 (E.D.N.Y. Dec. 28, 2017), report and recommendation adopted, 2018 WL 878988 (E.D.N.Y.

Feb. 14, 2018) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Indeed, the

NYLL Class allegedly suffered “common violations of law—i.e., the failure to properly classify

and compensate employees—[which] resulted in the proposed [NYLL Class] receiving . . . legally

inadequate compensation,” and their claims “aris[ing] under the same statutes.” Veldez v. Michpat

& Fam, LLC, 20-cv-2570 (AMD) (SIL), 2022 WL 1085465, *8 (E.D.N.Y. Jan. 6, 2022), report

and recommendation adopted, 2022 WL 950450 (E.D.N.Y. Mar. 30, 2022). The Court will likely

find that this meets commonality. See id.; Zhang, 2017 WL 8813132, at *16.

3. Typicality

Typicality exists where “each class member’s claim arises from the same course of events

and makes similar legal arguments to prove the defendant’s liability.” Shahriar v. Smith &

Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011). Typicality’s purpose “is to ensure

that class representatives 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.” Floyd v. City of New York, 283 F.R.D. 153, 175 (S.D.N.Y. 2012) (citation and quotations

omitted). As the claims need only “share the same essential characteristics, and need not be

identical, the typicality requirement is not highly demanding.” Bolanos v. Norwegian Cruise Lines

Ltd., 212 F.R.D. 144, 155 (S.D.N.Y. 2002). “The commonality and typicality elements are closely

linked.” Cymbalista, 2021 WL 7906584, at *11. They “often ‘tend to merge into one another, so

that similar considerations animate analysis’ of both.” Brown v. Kelly, 609 F.3d 467, 475 (2d Cir.

2010) (citing Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997)).

Here, Sorbie’s and the NYLL Class members’ claims “arise out of the same course of

events,” In re Platinum & Palladium Commodities Litig., 10-cv-3617 (WHP), 2014 WL 3500655

at *9 (S.D.N.Y. July 15, 2024), or, as the Parties describe, “Unisys’[s] overtime pay frequency

practices.” Settlement Regarding Stipulation ¶ 61; Abelove Decl. ¶ 72. As such, the Court will

likely find typicality. See Payment Card, 330 F.R.D. at 54 (holding that court will likely find

typicality where class plaintiffs “seek redress for the same types of harms due to the same course

of conduct,” even though they represent “a diverse array of interests”).

4. Adequate Representation

For the reasons discussed in Section I. A. 1., the Court will likely find that Sorbie and Class

Counsel have adequately represented the NYLL Class. See id. (applying adequate representation

analysis under Rule 23(e)(2)(A) to find that the representative parties will fairly and adequately

protect the class’s interests under Rule 23(a)(4)).

5. Ascertainability

The Second Circuit recognizes an implied requirement of ascertainability for class

certification. See Brecher, 806 F.3d at 24. In determining ascertainability, the Court considers

“whether a proposed class is defined using objective criteria that establish a membership with

definite boundaries.” In re Petrobas Secs., 862 F.3d 250, 269 (2d Cir. 2017). Here, the Court will

almost certainly find that the NYLL Class is ascertainable, as it is a defined 295-person group,

established by objective criteria, including employer, employment location, employment

timeframe, and job position. See Stipulation Regarding Settlement ¶ 58; Settlement Agreement §

1.

6. Rule 23(b)(3) Requirements

Plaintiffs seeking to proceed by class action must meet two additional requirements:

predominance and superiority. Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 81 (2d Cir.

2015); see Fed. R. Civ. P. 23(b)(3) (“class action may be maintained if . . . questions of law or fact

common to class members predominate over any questions affecting only individual members,

and that a class is superior to other available methods for fairly and efficiently adjudicating the

controversy.”). “The matters pertinent to these findings 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)(A–D). “However, in the settlement context, ‘some inquiries essential to

litigation of class certification,’ including the issue of ‘manageability—how the case will or can

be tried, and whether there are questions of fact or law that are capable of common proof,’ are no

longer relevant.” Northern Dynasty Minerals, 2023 WL 5511513, at *13 (cleaned up) (citing

Rosenfeld, 2021 WL 508339, at *10). Here, Sorbie has likely adequately established

predominance and superiority.

a. Predominance

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

warrant adjudication by representation.” Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045

(2016) (citations and quotations omitted). “Predominance is satisfied ‘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.’” Payment Card, 330 F.R.D. at 55 (citing Roach v.

T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015)). However, a plaintiff seeking class

certification need not establish that each “element of her claim is susceptible to classwide proof.”

Id. (citing Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 468 (2013)). Rather,

a plaintiff need only show that “questions common to the class predominate, and not that those

questions will be answered, on the merits, in favor of the class.” Id. (cleaned up) (citing Amgen

Inc., 568 U.S. at 459).

As discussed, Plaintiff raises, and Unisys does not dispute, several questions common to

the NYLL Class members’ claims, including “whether there is a private right of action for violation

of NYLL § 191(1)(a), whether the Settlement Members are manual workers, and whether Unisys’

pay practices violated NYLL § 191(1)(a).” Mem. Supp. at 33; Stipulation Regarding Settlement

¶ 63; Abelove Decl. ¶ 74. Indeed, “the same evidence will suffice” for each NYLL Class member’s

claims against Unisys, including job descriptions and time and payroll records. Tyson Foods, Inc.,

136 S.Ct. at 1045; see Mem. Supp. at 33. Moreover, the question of whether Unisys’s pay practices

violated the NYLL will require generalized proof to answer. See Payment Card, 330 F.R.D. at 56.

The NYLL Class members were similarly situated in multiple ways and suffered damages from

the same alleged conduct. As such, the Court will likely find that common questions predominant

over individual issues.

b. Superiority

“To satisfy the superiority requirement, the moving party must show that the class action

presents economies of ‘time, effort and expense, and promotes uniformity of decision.’” Payment

Card, 330 F.R.D. at 57 (citing In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 130 (2d

Cir. 2013)). “The superiority requirement is designed to avoid repetitious litigation and possibility

of inconsistent adjudications.” Id. (citations and quotations omitted). Where “the courts—absent

class certification—would have to litigate numerous lawsuits by hundreds . . . of individual class

members, the efficiencies of a class are self-evident.” Mikhlin, 2021 WL 1259559, at *11. Here,

as there are 295 NYLL Class members, “the prospect of individual actions would certainly prove

less efficient than a class-wide proceeding.” Northern Dynasty Minerals, 2023 WL 5511513, *14

. The Court will therefore likely find superiority.

II. FLSA COLLECTIVE’S SETTLEMENT

A stipulated dismissal settling FLSA claims requires court approval.2 Cheeks v. Freeport

Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015). Courts review, over several steps, a proposed

FLSA settlement to ensure that it reflects a fair and “reasonable compromise of disputed issues.”

Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (quotation marks omitted).

First, courts preliminarily review the proposed settlement’s fairness under Cheeks v. Freeport

Pancake House. Morales v. Rochdale Vill., Inc., 15-cv-502 (SJB), 2019 WL 9197991, *3

(E.D.N.Y. Dec. 6, 2019). If the court preliminarily approves the settlement, “notice is sent to extant

collective members, giving them the opportunity to opt into the settlement, as well as to other

employees who have not previously joined to give them an opportunity to opt into the collective

and accede to the settlement.” Marichal v. Attending Home Care Servs., LLC, 432 F. Supp. 3d

271, 280 (E.D.N.Y. 2020). Courts then consider final approval of the settlement, and hold a final

fairness hearing “giving all opt-in plaintiffs the opportunity to be heard by the Court.” Id. At both

stages, the Court must examine the settlement’s terms for fairness under Cheeks. Id.

To determine whether a settlement is fair, courts consider the totality of the circumstances,

including the factors outlined in Wolinsky v. Scholastic, no one of which is dispositive:

(1) the plaintiff’s range of possible recovery;

(2) the extent to which the settlement will enable the parties to avoid anticipated

burdens and expenses in establishing their respective claims and defenses;

(3) the seriousness of the litigation risks faced by the parties;

(4) whether the settlement agreement is the product of arm’s-length bargaining

between experienced counsel; and

(5) the possibility of fraud or collusion.

Fisher v. SD Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (quoting Wolinsky, 900 F. Supp. 2d at

335) (quotation marks omitted).

2 Or, Department of Labor approval.

Courts must also consider whether the settlement “complies with the Second Circuit’s

admonitions as articulated in Cheeks.” Ezpino v. CDL Underground Specialists, Inc., 14-cv-3173

(DRH) (SIL), 2017 WL 3037483, *1 (E.D.N.Y. June 30, 2017), report and recommendation

adopted, 2017 WL 3037406 (E.D.N.Y. July 17, 2017). Courts should guard against “highly

restrictive confidentiality provisions,” overly broad releases that “would waive practically any

possible claim against the defendants, including unknown claim and claims that have no

relationship whatsoever to wage-and-hour issues,” and “a[ny] provision that would set the fee for

plaintiff’s attorney . . . without adequate documentation.” Cheeks, 796 F.3d at 206.

The standard for approval of an FLSA collective action settlement is “less stringent” than

for approval of a Rule 23 class action settlement because the former “does not implicate due

process.” Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). Some courts

have found that “satisfaction of the Grinnell factor analysis will, necessarily, satisfy the standards

of approval of the FLSA [collective action] settlement.” D’Angelo v. Hunter Bus. Sch., 21-CV-

03334 (JMW)m 2023 WL 4838156, *5 n.1 (E.D.N.Y. July 28, 2023) (citing Ramos v. Nikodemo

Operating Corp., 16-cv-1052 (KAM) (JO), 2017 WL 11508016, *5 (E.D.N.Y. Aug. 7, 2017)). To

be sure, the Wolinsky factors substantially overlap with the factors that courts consider when

reviewing a proposed class action settlement. In both inquiries, the court considers the plaintiff’s

possible recovery if litigation were to continue, the liability risks of the parties, the potential

expense of continued litigation, whether the agreement resulted from arm’s-length negotiation,

whether plaintiff’s counsel was experienced, and the possibility of fraud or collusion.

For the reasons discussed below, the Settlement Agreement is fair and reasonable under

Cheeks.

A. Collective Action Certification

One or more individuals may bring an FLSA collective action on behalf of a group of

employees. 29 U.S.C. § 216(b). Employees only become members of the collective after

affirmatively “opting-in.” Glatt, 811 F.3d at 540. For a collective action to proceed, the named

plaintiff must be “similarly situated” to the proposed collective’s members. Scott v. Chipotle

Mexican Grill, Inc., 954 F.3d 502, 515–16 (2d Cir. 2020) (citing 29 U.S.C. § 216(b)).

To certify an FLSA collective, there are two steps. See id. at 515. The first is conditional

certification, in which the court “permits notice to be sent to potential opt-in plaintiffs if the named

plaintiffs make a modest factual showing that they and others together were victims of a common

policy or plan that violated the law.” Id. At the second step, the court “determines whether the

collective action may go forward by determining whether the opt-in plaintiffs are in fact similarly

situated to the named plaintiffs.” Id. The named plaintiff is “similarly situated” to collective

members when they “share legal or factual similarities material to the disposition of their [FLSA]

claims.” Id. The “similarly situated” requirement is “quite distinct from the much higher threshold

of demonstrating that common questions of law and fact will predominate for Rule 23 purposes.”

Id. at 518 (quotation marks omitted).

Here, Sorbie has already secured, with Unisys’s consent, conditional certification of the

FLSA Collective. See Cond. Cert. Order. As such, the Court need not consider whether Sorbie

has established a “modest factual showing” that he and the opt-in plaintiffs “together were victims

of a common policy or plan that violated the law.” Scott, 954 F.3d at 515.

Judge Choudhury noted that the definition for the FLSA Collective in the original proposed

settlement agreement differed from the definition set forth in the Order granting the collective’s

conditional certification. March 13 Op. at 44. The First Motion also failed to address the reasons

for the modification. See id. This time around, the Settlement Agreement’s definition for the

FLSA Collective still differs from the one in the Order granting conditional certification, which

merely defined the collective as “‘similarly situated’ individuals who worked or have worked in

New York as Field Service Engineers of Defendant Unisys from December 17, 2017 to present.”

See Cond. Cert. Order. The current definition, as discussed, is more comprehensive. See supra

Background § II.

In this Motion, the Parties explain that the definition “has simply been refined due to

discovery.” Stipulation Regarding Settlement ¶ 72. According to the Parties:

At the time of the pleadings the collective consisted of Field Service Engineers.

During the course of discovery Unisys informed the Plaintiff that the Service

Delivery Employee job family encompassed Field Service Engineers and that the

title of such positions changed over time since February 2014. At the time of the

pleadings the collective concerned those who worked in New York. During the

course of discovery a dispute arose between the Parties with respect to which

employees were actually working in New York and, for purposes of settlement, the

Parties agreed that those who were designated as New York employees in Unisys’

system based on a Unisys assigned New York work location. Finally, the pertinent

time was merely given an end date of October 20, 2023 as Unisys changed its pay

practices as of that date.

Id. ¶¶ 72, 73. This explanation seems—as an expected consequence of discovery—reasonable,

and otherwise unlikely to prevent preliminary approval of the Settlement Agreement.

B. Cheeks Fairness Review

Judge Choudhury could not find the original proposed settlement agreement fair and

reasonable under Cheeks because (1) the First Motion failed to provide information about the

Plaintiffs’ range of possible recovery, and (2) the original proposed settlement agreement contained

several unreasonable provisions. March 13 Op. at 44–45. This Motion and the revised Settlement

Agreement resolve those issues.

The first Wolinsky factor is the range of possible recovery. See 900 F. Supp. 2d at 335.

Indeed, “[a] plaintiff’s maximum possible recovery, and the basis for that estimate, is one of the

categories of information minimally required in order for the Court to evaluate the bona fides of

the dispute.” Luna v. J.S. Held LLC, 21-cv-3072 (JMW), 2023 WL 2214012, *6 (E.D.N.Y. Feb.

24, 2023). Here, Sorbie asserts, and Unisys does not dispute, that the FLSA Collective’s best-case

scenario recovery, assuming the opt-in of 217 individuals, is approximately $2.4 million.

Stipulation Regarding Settlement ¶ 74. Sorbie further asserts, and Unisys does not dispute, that

with respect to the 33 individuals who are currently opted into the collective, their damages would

be approximately $1,059,739.79 total, and, assuming they worked roughly the same number of

overtime hours, approximately $32,000 each. Id.

As with the NYLL Class’s best-case scenario, the estimated amount is based on Sorbie’s

expert’s analysis of the data that Unisys provided, including names, employee IDs, employee

positions, earnings codes, hours worked, earnings, pay period beginning date, pay period ending

date, and check date. Abelove Decl. ¶ 67. As all the FLSA Collective members are also NYLL

Class members, and there is no double recovery, the FLSA Collective’s damages are a portion of

$3.8 million in overall best-case scenario damages. Id. ¶¶ 67–68; Stipulation Regarding Settlement

¶ 74. That portion is simply limited due to the three-year statute of limitations applicable to FLSA

claims.

The $625,000 represents approximately 26% of the $2.4 million best-case recovery.

Abelove Decl. ¶ 69; Stipulation Regarding Settlement ¶ 74. “This recovery is reasonable and

consistent with settlements approved in this Circuit where the parties [settle] to avoid the risks and

uncertainty associated with litigation.” Li v. HLY Chinese Cuisine Inc., 596 F.Supp.3d 439, 448

(E.D.N.Y. 2022) (finding 13.8% recovery of total alleged damages reasonable); see Naraine v.

Washdry Tech Inc., --- F.Supp.3d --- , 2024 WL 4242284, *5 (E.D.N.Y. Sept. 19, 2024) (finding

approximately 16% recovery of total possible recovery within the acceptable range for this

Circuit). This factor thus supports a finding of reasonableness and fairness.

Although the First Motion failed to provide sufficient information for the Court to assess

the first Wolinsky factor, the Court found that, for the reasons addressed in its Rule 23 analysis, the

remaining factors weighed in favor of preliminary approval under Cheeks. March 13 Op. at 45–

46. As briefly discussed below, this remains true.

The second Wolinsky factor is the extent to which the settlement “will enable the parties to

avoid anticipated burdens and expenses in establishing their respective claims and defenses.” 900

F. Supp. 2d at 335 (citing Medley v. Am. Cancer Soc’y, 10-cv-3214 (BSJ), 2010 WL 3000028, *1

(S.D.N.Y. July 23, 2010)). As discussed, settlement here would allow the parties to forgo

additional lengthy and expensive discovery, as well as motions for summary judgment and

possibly trial. See supra Discussion § I. A. 3. a. i. Indeed, “the settlement averts what could

amount to considerable additional expenses and burdens in preparing their defenses and claims

and pursuing further discovery.” Huang v. Sunstone Pathology Servs. PC, 23-cv-5420 (JMW),

2024 WL 3937750, *3 (E.D.N.Y Aug. 26, 2024). As such, this factor supports a finding of

reasonableness and fairness.

The third Wolinsky factor is “the seriousness of the litigation risks faced by the parties.”

900 F. Supp. 2d at 335. As discussed, by settling, Plaintiff avoids litigation risks, including with

respect to establishing liability and damages. See supra Discussion § I. A. 3. a. ii.–iii. Defendant

also avoids the risks of potentially facing over $3.8 million in damages. See Stipulation Regarding

Settlement ¶ 51. Accordingly, this factor also supports a finding of reasonableness and fairness.

The fourth Wolinsky factor is “whether ‘the settlement agreement is the product of arm’s-

length bargaining between experienced counsel.’” 900 F. Supp. 2d at 335 (citing Medley, 2010

WL 3000028, *1). As discussed, the Settlement Agreement is, indeed, a result of arm’s-length

negotiation between experienced counsel. See supra Discussion § I. A. 2. This factor therefore

supports a finding of reasonableness and fairness.

The fifth and final Wolinsky factor is the possibility of fraud or collusion. See id. As Judge

Choudhury found, “there is no indication in the record of bad faith or collusion.” March 13 Op.

at 21. This remains true. As such, this final factor supports a finding of fairness and

reasonableness.

Besides the fact that the First Motion failed to provide sufficient information for the Court

to assess the first Wolinsky factor, the original proposed settlement agreement contained several

problematic provisions preventing the Court from finding it fair and reasonable. See March 13

Oo. at 46–52. Specifically, the original proposed settlement agreement included an overbroad

release of liability, an unduly restrictive non-publicity clause, and an impermissible opt-out

procedure binding FLSA Collective members who had not affirmatively assented to the settlement.

The current Settlement Agreement remedies those issues. As the Parties explain:

consistent with the Court’s March 13, 2024 opinion, the proposed settlement

agreement (a) retains the permissible covenant not to sue and removes the covenant

not to sue the Court found to be objectionable; (b) removes the Confidentiality

clause in its entirety; (c) removes the opt-out procedure the Court found

objectionable with respect to the Federal FLSA Settlement Collective. More

particularly, each of the potential members of the Federal FLSA Settlement

Collective are given the opportunity to file a Claim Form and become part of the

Federal FLSA Settlement Collective. The lead Plaintiffs and those who have

already opted-in to the lawsuit now have the opportunity to decide if they want to

be part of the Federal FLSA Settlement Collective.

Stipulation Regarding Settlement ¶ 45. Moreover, a review of the Settlement Agreements reveals

that it “does not include the typical provisions that preclude approval, including (1) overbroad

releases; (2) highly restrictive confidentiality provisions; (3) non-disparagement provisions that

bar truthful statements; and (4) prohibitions on future employment.” Li, 596 F. Supp. 3d at 450.

As such, nothing else in the Settlement Agreements appears to weigh against preliminary approval.

CONCLUSION

For the foregoing reasons, this Court respectfully recommends that the District Court

GRANT the Motion and preliminarily approve the Settlement Agreement.

OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil

Procedure, the parties shall have fourteen (14) days from service of this Report and

Recommendation to file written objections. Failure to file timely objections shall constitute a

waiver of those objections both in the District Court and on later appeal to the United States Court

of Appeals. See Marcella v. Cap. Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d Cir.

2002); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); see also Thomas

v. Arn, 474 U.S. 140 (1985).

SO ORDERED.

/s

Steven Tiscione

United States Magistrate Judge

Eastern District of New York

Dated: Central Islip, New York

March 14, 2025