Robertson v. Trinity Packaging Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

CLAUDE ROBERTSON, and FINAL APPROVAL ORDER

JOHN SZALASNY, individually and on behalf of and

others similarly situated, JUDGMENT

Plaintiffs, 19-CV-659-JLS-LGF

v.

TRINITY PACKAGING CORPORATION,

Defendant.

______________________________________

APPEARANCES: JTB LAW GROUP LLC

Attorneys for Plaintiffs

JASON T. BROWN, of Counsel

140A Metro Park

Rochester, New York 14623

BROWN, LLC

Attorneys for Plaintiffs

NICHOLAS S. COLON, and

PATRICK S. ALMONRODE, of Counsel

111 Town Square Place

Suite 400

Jersey City, New Jersey 07310

NIXON PEABODY LLP

Attorneys for Defendant

VINCENT E. POLSINELLI, and

CHRISTOPHER J. STEVEN, of Counsel

677 Broadway

10th Floor

Albany, New York 12207

JURISDICTION and BACKGROUND

In this hybrid collective/class wage-and-hours action commenced May 21, 2019,

pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FSLA” or “the Act”),

and New York Labor Law §§ 190 et seq. and 650 et seq., as well as 12 N.Y.C.R.R.

§142-1.1 et seq. (“NYLL”), Plaintiffs Claude Robertson (“Robertson”) and John Szalasny

(“Szalasny”) (together, “Named Plaintiffs”) allege Defendant Trinity Packaging

Corporation (“Defendant” or “Trinity”) maintained a “non-neutral rounding policy” in

which time spent performing tasks both pre- and post-shift was always rounded down

resulting in a failure to pay hourly workers for all time worked in excess of forty (40)

hours in a workweek. Trinity, a manufacturer and marketer of plastic packaging

products, heavy duty industrial films, specialty films, and lamination products, operates

plants in Buffalo, New York (“Buffalo plant”) and Rocky Mount, Virginia (“Virginia plant”).

On December 27, 2019, Plaintiffs filed an amended complaint (Dkt. 24) (“Amended

Complaint”). Named Plaintiffs assert their FLSA claims on a collective basis pursuant to

29 U.S.C. §216(b) on behalf of similarly situated workers who worked for Defendant in

New York or Virginia (“Opt-in Plaintiffs”), and the NYLL claims are asserted by Szalasny

on behalf of similarly situated workers who worked in New York, on a class basis

pursuant to Fed.R.Civ P. 23 (“New York Class Members”).

By Order filed October 22, 2020 (Dkt. 62) (“October 22, 2020 Order”), this case

was conditionally certified as a collective action under the FLSA on behalf of all hourly

machine operators employed by Defendant at any time from September 30, 2016 to

March 26, 2019, and all other hourly production workers employed by Defendant from

April 11, 2017 to March 26, 2019 (together, “putative collective members”), and

Defendant was directed to identify all putative collective members and provide the

putative collective members with contact information (“Court-approved Notice”).1 On

1 The October 20, 2022 Order also tolled the statute of limitations relative to the FLSA claims for hourly-

paid machine operators from September 30, 2019 until October 22, 2020, and for all other members of

the putative collective class from January 12, 2020 to June 27, 2020, and from October 9, 2020 to

October 16, 2020 (for a total of 172 days). October 20, 2022 Order ¶ 7.

November 23, 2020, based on information provided by Defendant, the Court-approved

Notice was sent to 945 putative collective members with directions to file by January 22,

2021, written consent forms indicating the intent to opt-in to the FLSA collective action.

In response to the Court-approved Notice, 63 persons, including the two Named

Plaintiffs, timely filed written consents, thereby becoming Opt-in Plaintiffs with regard to

the FLSA claims (“FLSA collective” or “Opt-in Plaintiffs”).2 Eight of the 63 Opt-in

Plaintiffs in the FLSA collective also have NYLL claims. Defendant’s employment

records revealed 220 employees who were potential members of the putative New York

Class, for which Defendant provided names, last known addresses, social security

numbers, and information pertinent to the class period, i.e., May 22, 2013 through

March 26, 2019. Of the 220 identified employees with possible claims pursuant to

NYLL, 99 submitted claims to become members of the New York Class, along with the

8 Opt-in Plaintiffs who also have NYLL claims for a total of 107 putative “New York

Class members.” There thus are, in total, 162 Settlement Class Members (63 + 99)

(“Plaintiffs”).

On October 27, 2022, the parties reached a joint settlement, filing Plaintiff’s

[Second]3 Unopposed Renewed Motion for Preliminary Approval of Class Action

Settlement and Certification of Class for Settlement Purposes (Dkt. 97) (“Preliminary

2 Although the Settlement Agreement refers to 64 Opt-in Plaintiffs in the FLSA, the list of Opt-in Plaintiffs

provided in support, Dkt. 97-2, contains the names of only 63 Opt-in Plaintiffs. No explanation for the

disparity is provided.

3 Unless otherwise indicated, bracketed material has been added.

Settlement and Class Certification”),4 with exhibits A and B, respectively, the Notice of

Proposed Collective and Class Action Settlement and Final Approval Hearing for the

Opt-in Plaintiffs (“Opt-In Notice”), and for the New York Class Members (“New York

Class Members Notice”), as well as a Claim Form as exhibit C for use by those

choosing to participate in the action. Attached to the Preliminary Settlement and Class

Certification are exhibits 1 through 18 (Dkts. 97-1 through 97-18) (“Plaintiffs’ Exh(s).

__”), and a proposed Preliminary Approval Order (Dkt. 97-19). Plaintiffs’ Exh. 97-1 is

the Joint Stipulation of Settlement and Release (“Settlement Agreement”), providing the

terms of the settlement including, inter alia, that Plaintiffs’ counsel was to select a

Claims Administrator to assist with, inter alia, notice to all Plaintiffs, and to be approved

by Defendant’s counsel. Settlement Agreement, Definitions at 6, ¶ 1.33. In the

Declaration of Jason T. Brown[, Esq.,] in Support of Plaintiffs’ Unopposed Renewed

Motion for Preliminary Approval of Class Action Settlement and for Certification of Class

for Settlement Purposes (Dkt. 98) (“First Brown Declaration”), Brown avers that the

parties “have agreed to use Simpluris, Inc. (“Simpluris”) as the Claims Administrator.”

First Brown Declaration ¶ 25.

On January 10, 2023, the parties consented pursuant to 28 U.S.C. § 636(c) to

proceed before a United States magistrate judge for consideration of the Preliminary

Settlement and Class Certification, as well as Plaintiffs’ anticipated forthcoming motion

seeking final approval of the Settlement and Class Counsel’s proposed attorney’s fees,

litigation costs and expenses, Service Awards, and Settlement Claims Administrator’s

4 Plaintiffs’ prior Unopposed Motion for Preliminary Approval of Class Action Settlement and for

Certification of Class for Settlement Purposes and Incorporated Memorandum of Law filed May 12, 2022

(Dkt. 86), was denied on August 24, 2022 (Dkt. 89).

fees and costs. (Dkt. 99) (“the Consent”). At that time, United States Magistrate Judge

Jeremiah J. McCarthy was the assigned magistrate judge.

On January 17, 2023, Judge McCarthy preliminarily approved the Settlement

Agreement (Dkt. 100) (“Preliminary Approval Order”), and a Fairness Hearing was

scheduled for June 20, 2023. In the Preliminary Approval Order, the court (1)

preliminarily approved the Settlement Agreement, Preliminary Approval Order ¶ 1; (2)

approved the form and content of the proposed notices to be sent to the Opt-in Plaintiffs

and New York Class Members and directed the notices be provided to all Settlement

Class Members, id. ¶ 6; (3) advised the Settlement Class Members of the opportunity to

object to the Settlement Agreement, id. ¶ 10; (4) confirmed the appointment of Plaintiffs’

counsel Jason T. Brown and Nicholas Conlon of Brown, LLC as Class Counsel (“Class

Counsel” or “Plaintiffs’ Counsel”), id. ¶ 7, Szalasny as Class Representative of the New

York Class, id. ¶ 8, and both Robertson and Szalasny as representatives of the FLSA

collective, id.; (5) authorized the use of a Claims Administrator identified in the

Settlement Agreement to effectuate notice to the Settlement Class members, with

Defense counsel to provide the Claims Administrator with the information necessary to

effectuate such notice, id. ¶ 9, and (6) scheduled a Fairness Hearing to determine

whether to grant final approval of the Settlement Agreement. Id. ¶ 4.

On June 5, 2023, Plaintiffs filed Plaintiffs’ Unopposed Motion for Final Approval

of Class Action Settlement, Service Awards, Class Counsel’s Proposed Attorneys’ Fees

and Costs, and Settlement Administrator’s Fees and Costs (Dkt. 102) (“Plaintiff’s

Motion”), supported by a proposed Final Approval Order and Judgment (Dkt. 102-1).

Plaintiffs’ Memorandum of Law in Support of Unopposed Motion for Final Approval of

Class Action Settlement, Service Awards, Class Counsel’s Proposed Attorneys’ Fees

and Costs, and Settlement Administrator’s Fees and Costs (Dkt. 103) (“Plaintiffs’

Memorandum”), with exhibits 1 through 7 (Dkts. 103-1 through 103-7) (“Plaintiffs’

Exh(s). __”), and the Declaration of Jason T. Brown[, Esq.] in Support of Plaintiffs’

Unopposed Motion for Final Approval of Class Action Settlement, Service Awards,

Class Counsel’s Proposed Attorneys’ Fees and Costs, and Settlement Administrator’s

Fees and Costs (Dkt. 104) (“Second Brown Declaration”), with exhibits 1 through 7

(Dkts. 104-1 through 104-7) (“Second Brown Declaration Exh(s). __”).

As scheduled by the Preliminary Approval Order, the Fairness Hearing was held

on June 20, 2023 (Dkt. 105) (“the Fairness Hearing”), during which Judge McCarthy

exhaustively questioned Class Counsel regarding ethical issues pertaining to another,

unrelated action pending in this court, i.e., Bonuro v. UHL Ventures LLC, 22-CV-395

(W.D.N.Y.) (“Bonuro”), also a hybrid collective/class action involving violations of the

FLSA and NYLL in which the plaintiffs were represented by Class Counsel in this action.

See Hearing Tr.5 at 12-19. In Bonuro, Judge McCarthy particularly took issue with the

amount of attorney fees requested by the plaintiffs’ counsel which greatly exceeded the

amount recovered for the plaintiffs. See Buono, March 9, 2023 Report and

Recommendation (22-CV-395, Dkt. 30) at 9-10). At the conclusion of the Fairness

Hearing, Judge McCarthy reserved decision. Hearing Tr. at 19. In a Decision and

Order filed July 5, 2023 (Dkt. 106) (“D&O”), Judge McCarthy determined that he “cannot

rely on class counsel’s competence and integrity to approve this settlement,” D&O at 6,

and denied Plaintiffs’ Motion including settlement and class certification. Id. Other than

5 References to “Hearing Tr.” are to the pages of the corrected transcript of the June 20, 2023 Fairness

Hearing, filed as Dkt. 108.

determining that Plaintiffs’ Counsel would not adequately represent the New York Class,

Judge McCarthy did not reach the remaining requirements for class certification under

Fed.R.Civ.P. 23(a) and (b) (“Rule 23__”), or the fairness of the proposed Settlement

Agreement. Id.

On August 14, 2023, Plaintiffs moved for reconsideration (Dkt. 110), which Judge

McCarthy denied on December 15, 2023 (Dkt. 114). Also on December 15, 2023,

Plaintiffs petitioned the Second Circuit to appeal the denial of class certification. (Dkt.

113). On May 21, 2024, Plaintiffs filed an interlocutory appeal with the Second Circuit

Court of Appeals regarding the denial of settlement approval. (Dkt. 115).

On May 28, 2024, the Second Circuit granted Plaintiff’s petition to appeal the

denial of class certification, determining there was no reason to believe that Plaintiffs’

Counsel would not adequately and fairly represent the interests of the class, i.e., the

only issue Judge McCarthy addressed with regard to certifying the New York Class.

(Dkt. 119). District Judge Sinatra then referred the matter to the undersigned. (Dkt.

120). On May 8, 2025, the Second Circuit vacated the D&O and remanded the matter

to this court for further consideration of the proposed Settlement Agreement, observing

that the concerns Judge McCarthy raised regarding Class Counsel were without merit.6

(Dkt. 122) (Second Circuit Mandate”). Plaintiffs’ Motion is now before the undersigned

for Decision and Order pursuant to the parties’ January 10, 2023 Consent.7

6 On July 6, 2023, Plaintiffs’ counsel engaged in mediation in Bonuro and reached a new settlement with

significantly lower attorney fees, and eventually preliminary and final approvals of the class settlement in

Bonuro were entered on March 29, 2024 (22-CV-395, Dkt. 60, preliminary settlement approval), and on

July 26, 2024 (22-CV-395, Dkts. 73 & 74, respectively, final settlement approval and final approval of

attorney fees and costs).

7 “Title 28 U.S.C. § 636(c)(1) states that, ‘[u]pon the consent of the parties, a full-time United States

magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the

entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court

The Second Circuit’s granting of Plaintiff’s petition challenging the denial of class

certification determined that the New York Class would be adequately represented by

Plaintiffs’ counsel. Accordingly, the action is again before the court for consideration

and approval of the parties’ Settlement Agreement (Dkt. 97-1). Because the Settlement

Agreement is unopposed, no New York Class Member or any Opt-in Plaintiff appeared

at the Fairness Hearing, and the papers filed by both the Plaintiffs and Defendant are

sufficiently thorough, the court finds that rather than schedule a new fairness hearing,

the Fairness Hearing will be continued, on the papers, and without further notice to the

Settlement Class members. See Sicajan Diaz v. Pizza Napolitana, Inc., 2020 WL

8265766, at *1 (E.D.N.Y. Dec. 4, 2020), (finding fairness hearing could be held on the

papers where the parties’ submissions were thorough), report and recommendation

adopted, 2021 WL 260093 (E.D.N.Y. Jan. 26, 2021). Having carefully and thoroughly

reviewed the Settlement Agreement, including the exhibits attached thereto and all

or courts he serves.’” Astra USA, Inc. v. Bildman, 375 Fed.Appx. 129, 132 (2d Cir. 2010) (quoting 28

U.S.C. § 636(c)(1)). “Litigants enjoy no absolute right to withdraw a validly given consent to proceed

before a magistrate judge.” Savoca v United States, 199 F. Supp. 3d 716, 721 (S.D.N.Y. 2016)

(quotation marks omitted). “Once a case is referred to a magistrate [judge] under section 636(c), the

reference can be withdrawn only by the district court, and only for good cause shown on its own motion,

or under extraordinary circumstances shown by any party.” Dale v. Raczynski, 2022 WL 4479528, at *1

(2d. Cir. Sept. 27, 2022) (summary order) (alterations omitted). “Where parties consent to the jurisdiction

of a specifically-named magistrate judge, any subsequent disposition by another magistrate judge without

the consent of the parties is improper and must be vacated.” Sell v. Conway, 2011 WL 5325978, at *1

(W.D.N.Y. Nov. 4, 2011) (citing Mendes Junior Int'l Co. v. M/V Sokai Maru, 978 F.2d 920, 924 (5th

Cir.1992)). “Where, however, the ‘plain language of the [consent form] indicates that the parties consent

to have any [magistrate judge] preside in their case,’ a later transfer to a second magistrate judge is not

improper.” Id. (quoting Hester v. Graham, Bright & Smith, P.C., 289 Fed.Appx. 35, 39–40 (5th Cir.2008))

(emphasis and bracketed material in Sell). Further, “[a] party may implicitly consent to the jurisdiction of a

magistrate judge by appearing before that magistrate judge without objection and filing motions after

receiving notice of the reassignment.” Id. (citing Astra USA, Inc. v. Bildman, 375 Fed.Appx. 129, 132 (2d

Cir.2010)). In the instant case, because the consent form signed by the parties, Dkt. 99, does not name a

specific magistrate judge before whom the parties were consenting to proceed on Plaintiffs’ Motion, the

Consent remains in place after Judge Sinatra’s referral of the matter to the undersigned.

supporting papers and written submissions, the court finds that good cause exists to

approve the New York Class and the Settlement Agreement.

Discussion

1. Overview of Settlement Agreement and Relevant Law

The Settlement Agreement for which the parties seek final approval pertains to

both the FLSA and NYLL claims, and also provides for payment of a “service award” to

both Named Plaintiffs, Robertson and Szalasny, for their service as class

representatives, and seeks an award of Plaintiffs’ attorney fees and litigation costs

incurred in connection with this action. Because the Amended Complaint asserts a

claim under the FLSA, judicial approval is required for settlement. See Cheeks v.

Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). Fed.R.Civ.P. 23

(“Rule 23__”), pursuant to which the NYLL claim is asserted, also provides that “a class

action cannot be settled without approval of the District Court.” D’Amato v. Deutsche

Bank, 236 F3d 78, 85 (2d Cir. 2001) (citations omitted). The class representatives may

be granted incentive or “service awards” at the court’s discretion. Frank v. Eastman

Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005) (“Incentive awards are not uncommon

in class action cases and are within the discretion of the court.”). Further, “[u]nder the

FLSA and the NYLL, a prevailing plaintiff is entitled to reasonable attorneys' fees and

costs.” Fisher v. SD Protection Inc., 948 F.3d 593, 600 (2d Cir. 2020) (citing 29 U.S.C.

§ 216(b); NYLL § 663(1)).

“The FLSA was designed to protect workers and ensure that they are not

subjected to working conditions ‘detrimental to the maintenance of the minimum

standard of living necessary for health, efficiency, and general well-being.’” Shahriar v.

Smith & Wollensky Restaurant Group, Inc., 659 F.3d 234, 243 (2d Cir. 2011) (quoting

29 U.S.C. § 202(a)). “New York similarly enacted minimum wage standards to remedy

the practice of persons working ‘at wages insufficient to provide adequate maintenance

for themselves and their families . . . .’” Id. (quoting N.Y. Lab. Law § 650 (McKinney

2002)). “Victims of wage and hour violations therefore often have parallel claims under

both the FLSA and [NYLL].” Id.

Pursuant to 29 U.S.C. § 216(b) (“§ 216__”), the FLSA provides that a plaintiff

may bring a private right of action as a “collective action” to recover unpaid overtime

compensation and liquidated damages on behalf of himself and others “similarly

situated” from employers who violate the FLSA’s overtime provisions. Shahriar, 659

F.3d at 243-44 (quoting 29 U.S.C. § 216(b)). Collective actions pursuant to § 216(b) are

referred to as “opt-in” actions because “an employee [must] affirmatively consent to join

a ‘collective action’ in order to assert a claim.” Id. (quoting 29 U.S.C. § 216(b) (“No

employee shall be a party plaintiff to any such action unless he gives his consent in

writing to become such a party and such consent is filed in the court in which such

action is brought.”)).

In contrast, NYLL “does not have a provision for collective actions. Instead,

plaintiffs may pursue a traditional “opt-out” class action through class certification for

their state law claims.” Shahriar, 659 F.3d at 244. “Because FLSA and NYLL claims

usually revolve around the same set of facts, plaintiffs frequently bring both types of

claims together in a single action using the procedural mechanisms available under 29

U.S.C. § 216(b) to pursue the FLSA claims as a collective action and under Rule 23 to

pursue the NYLL claims as a class action under the district court's supplemental

jurisdiction.” Id. Despite an apparent conflict between the opt-in procedure for FLSA

collective actions and the opt-out procedure for NYLL class actions, the Second Circuit

has held that employees may simultaneously proceed with both an FLSA collective

action and a NYLL class action involving the same facts. Id., 659 F.3d at 249. Cases in

which the plaintiffs pursue both FLSA claims as a collective action under § 216(b) and

NYLL claims as a class action under Rule 23 are considered “hybrid” actions. Marin v.

310 Bowery Group LLP, 2025 WL 893731, at *5 (S.D.N.Y. Mar. 24, 2025).

The members of the Settlement Class include Named Plaintiffs, those who opted

into the collective action under the FLSA (“Opt-in Plaintiffs”), and as those pursuing the

NYLL claim as New York Class Members. Of the 945 putative collective members to

whom the Court-approved Notice was sent on November 23, 2020 advising of the FLSA

claim, 63 Opt-in Plaintiffs, including the two Named Plaintiffs, filed by the January 22,

2021 deadline written consent pursuant to § 216(b). Those who timely returned a

completed Claim Form are considered “Participating Class Members” who are eligible to

receive payment pursuant to the Settlement Agreement. As regards the NYLL claim, of

248 notice packets sent to putative New York Class members, only five were returned

as undeliverable and 99 submitted Claim Forms and are thus included in the New York

Class.

The Settlement Agreement provides for a total Gross Settlement Fund or “GSF”

of $ 840,000, Settlement Agreement, Definitions § 1.14, with the Qualified Settlement

Fund (“QSF”) the amount to be paid by Defendant to resolve the FLSA and NYLL wage

and hours claims brought by the members of the Settlement Class. Id. § 1.28 (defining

“Qualified Settlement Fund” as “the account established by the Settlement Claims

Administrator for the Settlement Payment Amount paid by Defendant), and § 1.32

(defining “Settlement Payment Amount” as including “(1) the amounts payable to

Participating Class Members from the Net Settlement Fund; (2) the Settlement Claims

Administrator’s fees and costs; (3) Court-approved attorneys’ fees and costs for Class

Counsel; (4) Court-approved Service Awards to Named Plaintiffs; (5) the Opt-In Fund;

and (6) Employer Payroll Taxes). The Settlement Agreement is supported by

declarations from four putative New York Class members, ten declarations from Opt-in

Plaintiffs asserting FLSA claims, and exhibits documenting Defendant’s time and

attendance policies, timeclock summaries for several Settlement Class members

showing their unpaid time averaged 8.3 minutes per day. First Brown Declaration ¶ 7.

The Net Settlement Fund, i.e., the amount of the GSF minus the award for attorney fees

(up to one-third of the GSF or $280,000), litigation costs ($ 14,581.54), Claims

Administrator’s fees and costs ($ 7,850), and the so-called “Service Awards” to be paid

to each Named Plaintiff ($ 10,000 to each for total of $ 20,000), is estimated to be $

517,568.46 (“Net Settlement Fund”),8 and is to be divided into an Opt-in Fund for

payment to those Plaintiffs asserting FLSA claims, and a Rule 23 Settlement Fund for

the New York Class Members. Settlement Agreement, Definitions § 1.17; Butler

Declaration ¶ 14. The amount to be paid to each Settlement Class Member depends on

whether each such member asserts claims pursuant to NYLL, the FLSA, or both, as

well as the number of weeks each member worked during the subject period.

Specifically, of the $ 517,568.46 Net Settlement Fund, the Opt-in Fund will receive 17%

8 The amount of the Net Settlement Fund is estimated because the numbers provided for the attorney

fees and costs were not final when Plaintiffs’ Motion was filed.

or $ 87,986.64, whereas the Rule 23 Settlement Fund will receive the remaining 83% or

$ 429,581.92. Id. Further, the 99 putative New York Class members plus the 8 Opt-in

Plaintiffs who assert both FLSA and NYLL claims and who also timely filed Claim Forms

represent 48.63% of the total New York Class of 220 and will share in 62.20% of the

Rule 23 Settlement Fund or $ 267,199.89.9 Id. ¶ 16.

2. Motion for Final Approval

Before the court is Plaintiffs’ unopposed motion seeking both final approval of

certification of the New York Class as well as of the proposed Settlement Agreement.

A. NYLL

As stated, the NYLL claims are asserted as a class action pursuant to Rule 23

which provides that “a class action cannot be settled without approval of the District

Court.” D’Amato v. Deutsche Bank, 236 F3d 78, 85 (2d Cir. 2001) (citations omitted).

After preliminarily approving a settlement and class certification, the “court ‘then grants

or denies final approval of the settlement and certification of the class.’” Noto v. 22nd

Century Group, Inc., 2023 WL 7107840, at * (W.D.N.Y. Oct. 17, 2023) (quoting

Patterson v. Premier Constr. Co. Inc., 2017 WL 122986, at * 2 (E.D.N.Y. Jan. 12,

2017)), report and recommendation adopted, 19-CV-1285-JLS-MJR, Dkt. No. 98

(W.D.N.Y. Oct. 23, 2023) (slip op.). “‘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 & n 22

(2d Cir. 2020) (quoting In re American Intern. Group, Inc. Securities Litig., 689 F.3d 229,

238 (2d Cir. 2012), abrogated on other grounds, Amgen Inc. v. Connecticut Retirement

9 The Settlement Agreement also includes that all Settlement Class members agree to release Defendant

from further lawsuits pertaining to wage and hours claims. Settlement Agreement § 4.

Plans and Trust Funds, 568 U.S. 455 (2013)). Once the class has been certified, the

court must then consider whether the proposed settlement, “taken as a whole, is fair,

reasonable, and adequate.” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072,

1079 (2d Cir. 1995). The court thus first considers whether the putative New York Class

should be certified pursuant to Rule 23.

1. Certification of the New York Class

Despite being preliminarily approved, the putative New York Class must be

granted final certification for purposes of settlement. Claims brought in federal court for

violations of state overtime rules may be certified as class actions and Fed.R.Civ.P. 23

applies to determine whether class certification is appropriate. See Lisnitzer v. Zucker,

983 F.3d 578, 588 (2d Cir. 2020) (“We have made clear that the district court may

certify a class only after determining that each Rule 23 requirement is met.”) (citing

cases). The putative New York Class is defined in the Settlement Agreement as “those

individuals who were employed by Trinity as a non-exempt, hourly production employee

at its manufacturing facility located in Buffalo, New York from May 22, 2013 through

March 26, 2019. . . .”10 Settlement Agreement §1.26.

“Certification of a class for settlement purposes is appropriate ‘where the

proposed class and class representative satisfy the four requirements of Federal Rule of

Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy—as well as

one of the three subsections of Rule 23(b).’” Beebe v. V&J National Enterprises, LLC,

2020 WL 2833009, at * 4 (W.D.N.Y. June 1, 2020) (quoting Cohen v. J.P. Morgan

Chase & Co., 262 F.R.D. 153, 157-58 (E.D.N.Y. 2009)) (footnote omitted in Beebe). In

10 Only those Plaintiffs suing under NYLL make up the putative New York Class for which class

certification pursuant to Rule 23 is sought.

addition to the four Rule 23(a) prerequisites, “the Second Circuit also recognizes an

implicit ‘ascertainability’ requirement, which commands that the proposed class be

“defined using objective criteria that establish a membership with definite boundaries.”

In re Petrobras Sec., 862 F.3d 250, 257 (2d Cir. 2017). “In deciding certification, ‘courts

must take a liberal rather than restrictive approach in determining whether the plaintiff

satisfies these requirements and may exercise broad discretion in weighing the

propriety of a putative class.’” Beebe, 2020 WL 28330009, at * 4 (quoting Cohen, 262

F.R.D. at 158) (further quotation omitted). In the instant case, the putative New York

Class meets all requirements for class certification under Rule 23(a) and 23(b).

a. Rule 23(a) Requirements

Rule 23(a) provides four prerequisites that must be satisfied to permit one or

more class members to sue in a representative capacity on behalf of all class members.

Fed.R.Civ.P. 23(a). Specifically,

One or more members of a class may sue or be sued as representative parties

on behalf of all members only 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).

i. Numerosity

The numerosity element is satisfied where the class is sufficiently numerous as

to render joinder “impracticable.” Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).

Significantly, “numerosity is presumed at a level of 40 members. . . .” Consolidated Rail

Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citing 1 Newberg on

Class Actions 2d (1985 Ed.) § 305)). In the instant case, the putative New York Class

includes the 99 Plaintiffs who sue only under NYLL as well as the 8 Opt-in Plaintiffs who

sue under both the FSLA and NYLL, for a total of 107 putative New York Class

members, far exceeding the 40 members required for a presumption of numerosity.

Accordingly, the numerosity element is met.

ii. Commonality

Commonality exists where the “class members’ claims share a common question

of law or fact.” Cohen, 262 F.R.D. at 158. Here, the common issues of law and fact

concern Defendant’s calculation of hours rounding policy in which time spent by hourly

employees performing tasks both pre- and post-shift was always rounded down

resulting in a failure to pay hourly workers for all time worked in excess of forty (40)

hours in a workweek during the period May 22, 2013 through March 26, 2019, in

violation of NYLL. Claims that workers were not paid a minimum wage or paid for

overtime satisfies Rule 23(a)’s commonality requirement for class certification. See,

e.g., Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 371 (S.D.N.Y. 2007)

(claims that workers were not paid a minimum wage nor paid for overtime satisfied

commonality requirement). The commonality element is thus satisfied.

iii. Typicality

“Typicality requires that the representative plaintiffs' claims are typical of the

class, and ‘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. Guiliani, 126 F.3d 372, 376 (2d Cir. 1997) (quoting In re Drexel

Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992), cert. dismissed, 506

U.S. 1088 (1993)). Although each Plaintiff may be entitled to different damages,

“[b]ecause typicality does not require that the class representative claims be identical to

those of the class, differences in damages will not destroy typicality.” Bolanos v.

Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 155 (S.D.N.Y. 2002) (quoting 5 Moore's

Federal Practice § 23.24[5]). In the instant case, all putative New York Class members

allege that Defendant consistently rounded down the hours work both pre- and post-

shift so as to deny the hourly workers overtime wages to which they were entitled in

violation of NYLL. “‘As long as plaintiffs assert, as they do here, that defendants

committed the same wrongful acts in the same manner against all members of the

class, they establish necessary typicality.’” Id. (quoting In re Towers Fin. Corp.

Noteholders Litig., 177 F.RD. 167, 170 (S.D.N.Y. 1997))). Accordingly, the typicality

requirement is also met.

iv. Adequacy

The adequacy element requires a plaintiff to show that “the representative parties

will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

“‘The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest

between named parties and the class they seek to represent.’” In re Literary Works in

Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011) (quoting Amchem

Prod., Inc. v. Windsor, 521 U.S. 591, 625 (1997)). “To satisfy Rule 23(a)(4), the named

plaintiffs must ‘possess the same interest[s] and suffer the same injur[ies] as the class

members.’” Id. (quoting Amchem Prod., Inc., 521 U.S. at 625). Further, “‘[a]dequacy is

twofold: the proposed class representative must have an interest in vigorously pursuing

the claims of the class, and must have no interests antagonistic to the interests of other

class members.’” Id. (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d

Cir.2006)). Here, Szalasny has no conflict interfering with his status as representative

of the New York Class.

Further, the adequacy element also requires class counsel be qualified,

experienced, and generally able to conduct litigation, Beebe, 2020 WL 2833009, at * 5

(citing Cohen, 262 F.R.D. at 158). See also Jin v. Shanghai Original, Inc., 990 F.3d

251, 262-63 (2d Cir. 2021) (“it is class counsel, not the class representatives, who are

truly litigating the class’s claims.”). It was because Judge McCarthy found reasons to

preclude reliance on Plaintiffs’ Counsel’s competency and integrity, that Judge

McCarthy denied Plaintiff’s earlier motion for settlement and class certification. D&O at

6. In vacating the D&O, however, the Second Circuit found this factor was satisfied,

Second Circuit Mandate at 10,11 and the court does not further address it.

All four prerequisites set forth under Rule 23(a) are thus satisfied, and the court

turns to whether the New York Class also satisfied the implied “ascertainability”

requirement.

b. Implied Ascertainability

“The implied ascertainability doctrine that governs in this Circuit requires only that

a class be defined using objective criteria that establish a membership with definite

boundaries.” In re Petrobras Sec., 862 F.3d 250, 264 (2d Cir. 2017).

11 The Second Circuit Mandate analyzed the adequacy of Plaintiffs’ Counsel pursuant to Fed.R.Civ.P.

23(g)(1)(B), which was added in 2003. Fed.R.Civ.P. 23 Advisory Committee Notes to the 2003

amendment. Previous to the addition of Rule 23(g), the competency of counsel was analyzed in

connection with Rule 23(a)(4)’s adequacy requirement. See Jin, 990 F.3d at 263 (courts “historically

assessed the adequacy of class counsel under Rule 23(a)(4) even though that provision only concerns

the adequacy of the class representatives. When Congress enacted Rule 23(g) governing the

appointment of class counsel, it codified this judicial practice, taking “a step towards the fuller

acknowledgment that it is class counsel, not the class representatives, who are truly litigating the class's

claims.” (quoting1 Newberg on Class Actions § 3:80 (5th ed.)).

[T]he touchstone of ascertainability is whether the class is sufficiently definite so

that it is administratively feasible for the court to determine whether a particular

individual is a member. A class is ascertainable when defined by objective

criteria that are administratively feasible and when identifying its members would

not require a mini-hearing on the merits of each case.

Brecher v. Republic of Argentina, 806 F.3d 22, 24–25 (2d Cir. 2015) (internal quotation

omitted).

In the instant case, the putative New York Class members are readily identifiable from

employment records maintained by Defendant. See Marin, 2025 WL 893731, at * 6

(“The Settlement Class is easily ascertainable given the parties’ representation that,

based on Defendants’ employment records, there are at least 200 Class Members.”)

(citing Amigon v. Safeway Constr. Enters., LLC, 2024 WL 5040436, at *8 (E.D.N.Y.

Dec. 9, 2024) (“The putative class is easily ascertainable, as Plaintiff represents that

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

individuals who comprise the putative class.)).

In the instant case, one Mary Butler (“Butler”), a case manager with Simpluris,

Inc. (“Simpluris”), the court-approved Claims Administrator, explains that a review of

Defendant’s employment records reveals 220 employees who were potential members

of the putative New York Class, for which Defendant provided names, last known

addresses, Social Security numbers, and information pertinent to the class period, i.e.,

May 22, 2013 through March 26, 2019. Butler Declaration ¶ 6. The New York Class is

comprised of 107 Plaintiffs based on responses received to mailings to each of the

potential New York Class members. Id. ¶¶ 7-11. Accordingly, the implied

ascertainability requirement that the members of the New York Class be defined by

objective criteria is satisfied.

c. Rule 23(b)

Once the Rule 23(a) and ascertainability criteria are satisfied, the court must

discern whether the putative New York Class also satisfies the criteria for one of Rule

26(b)’s three subsections. Cohen, 262 F.R.D. at 157-58. Here, the putative New York

Class fulfills the requirements of Rule 26(b)(3) that “questions of law or fact common to

class members predominate over any questions affecting only individual members, and

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

adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Relevantly, “[c]lass-wide issues

predominate if resolution of some of the legal or factual questions that qualify each

class member’s case as a genuine controversy can be achieved through generalized

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

individualized proof.” Moore v. Paine Webber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002).

In the instant case, resolution of the common issues of law and fact includes

whether Defendant, in calculating the wages owed to the hourly workers, regularly

rounded down the amount of such hours, resulting in a diminution of wages, in violation

of NYLL. See Marin, 2025 WL 893731, at * 6 (S.D.N.Y. Mar. 24, 2025) (determining

plaintiffs’ claims that defendant employers “maintained improper compensation

practices” in violation of NYLL were “subject to generalized proof and predominated

over any potential individual issues”). Relevantly, no Plaintiff or Defendant has

identified any individualized issues, leaving only common issues of law and fact for

which the proof will require comparing records showing when each putative New York

Class member clocked in and out of work, with other records showing how much the

employees were paid for the corresponding hours. Further, such comparison is a

relatively straightforward task rendering class settlement “a superior method for the fair

and efficient adjudication of the claims of the [putative New York] Class members, who

have limited resources to prosecute individual actions.” Id. (quoting Lora v. To-Rise,

LLC, 452 F.Supp.3d 5, 10 (E.D.N.Y. 2019) (“Class adjudication of this case is superior

to individual adjudication because it will conserve judicial resources and is more efficient

for class members, particularly those who lack the resources to bring their claims

individually.”). Under these circumstances, the requirements of Rule 26(b)(3) are

satisfied.

d. Class Certification

Having determined the putative New York Class meets all requirements under

Rule 23(a), the implied ascertainability doctrine, as well as the requirements for Rule

23(b)(3), the court is satisfied that the New York Class should be certified.

2. Rule 23(e) and the Settlement Agreement

With the New York Class12 certified, the court turns to whether the Settlement

Agreement is fair, reasonable, and adequate pursuant to Rule 23(e).13 A proposed

settlement agreement that binds the class members may be approved only upon a

“‘finding that it is fair, reasonable, and adequate.’” Moses v. New York Times Co., 79

F.4th 235, 242 (2d Cir. 2023) (quoting Fed.R.Civ.P. 23(e)(2)). Prior to 2018, the

fairness, reasonableness, and adequacy of a proposed class settlement agreement was

evaluated according to the nine so-called “Grinnell factors,” set out in City of Detroit v.

Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974).

12 Given the New York Class has been certified, the “putative” modifier is henceforth not used.

13 The Settlement Agreement pertains to the Settlement Class including the Opt-in Plaintiffs and the New

York Class members.

“These [Grinnell factors] include: ‘(1) the complexity, expense and likely duration

of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the

proceedings and the amount of discovery completed; (4) the risks of establishing

liability; (5) the risks of establishing damages; (6) the risks of maintaining the

class 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.’”

Moses, 79 F.4th 235, 242 n. 3 (quoting Hyland v. Navient Corp., 48 F.4th 110, 121 (2d

Cir. 2022) (quoting Grinnell Corp., 495 F.2d at 463) (internal citations omitted in

Hyland)).

In 2018, however, Rule 23 was revised “to include a list of four ‘primary

procedural considerations and substantive qualities that should always matter to the

decision whether to approve [a settlement] proposal.” Id. (quoting Fed.R.Civ.P. 23(e)(2)

Advisory Committee’s Note to 2018 Amendment) (bracketed material in Moses). The

considerations include

whether:

(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) (“Rule 23(e)(2) factors”).

“The first two factors are procedural in nature and the latter two guide the substantive

review of a proposed settlement.” Moses, 79 F.4th at 242-43 (citing Fed.R.Civ.P.

23(e)(2) Advisory Committee’s Note to 2018 Amendment). Further, although prior to

the 2018 amendment federal courts within the Second Circuit applied a presumption of

fairness to proposed settlement agreements based on arms-length negotiations, such

presumption is no longer permitted but must be based on consideration of the Rule

23(e)(2) factors as well as “the proposed attorneys’ fees and incentive awards.” Id. at

243. Nevertheless, the court must 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 F.4th at 243 (“the revised Rule 23(e)(2) does not

displace our traditional Grinnell factors”). In the instant case, the Rule 23(e)(2) factors

weigh in favor of approving the Proposed Settlement Agreement.

a. Rule 23(e)(2)(A) - Adequate Representation

As part of the court’s class certification analysis pursuant to Rule 23(a)(4),

Named Plaintiff Szalsany was found to be adequate and without any conflict interfering

with his status as the representative for the New York Class, and class counsel was

found to be sufficiently qualified, experienced, and generally able to conduct litigation as

to be adequate. See Discussion, supra, at 17-18. Given the similarity in the adequacy

analysis under both Rule 23(a)(4) and Rule 23(e)(2)(A), the court finds that New York

Class Representative Szalsany and Plaintiff’s Counsel have adequately represented the

interests of the New York Class members in this action, and that Plaintiff’s Counsel

have fairly and adequately represented the enforcement of the rights of the New York

Class members in pursuing their claims under the NYLL. See Fero v. Excellus Health

Plan, Inc., 2022 WL 1292133, at * 4 (W.D.N.Y. Apr. 29, 2022) (finding determination

that class representatives and class counsel were adequate with regard to Rule 23(a)(4)

also established adequacy under Rule 23(e)(2)(A).

b. Rule 23(e)(2)(B) - Arm’s Length Negotiation

To find that a settlement agreement is fair, the court must determine that the

parties reached the agreement after engaging in arm’s length negotiations, although

arm’s length negotiations alone do not give rise to a presumption of fairness. Moses, 79

F.4th at 243. In the instant case, in connection with initial settlement discussions,

Defendant’s counsel produced to Plaintiff’s Counsel the payroll data for the entire

Settlement Class and an agreement to toll the FLSA statute of limitations, and Plaintiffs’

Counsel served discovery requests for information pertaining to certification of the New

York Class. Second Brown Declaration ¶ 8. Between December 10, 2010 and June

23, 2020, Plaintiffs’ Counsel and Defendant’s Counsel engaged in two mediation

sessions during which William F. Bauer, Esq. (“Bauer”), served as mediator. Id. ¶ 9.

Settlement was eventually reached after a third mediation session with Bauer in

January 2022. Id. ¶ 10. Additionally, all legal counsel involved in the mediation

sessions are seasoned attorneys with regard to litigating class and collective wage and

hour cases with the Settlement Agreement largely driven based on information derived

from the time and payroll records produced by Defendant as well as information by Opt-

in Plaintiffs. Id. ¶ 10. Under these circumstances, the court finds the Settlement

Agreement is the product of arm's-length, good faith negotiations involving a

credentialled mediator and experienced and independent counsel for all parties. See,

e.g., Whelan v. Diligent Corp., 349 F.R.D. 79, 85–86 (S.D.N.Y. 2025) (determining a

proposed settlement agreement was the result of arm’s-length negotiations where the

parties spent six months negotiating settlement with assistance of a private mediator

who helped parties independently evaluate strengths and weaknesses of their claims

and defenses, and throughout all negotiations, counsel for all sides zealously advocated

for their clients' positions).

With the criteria for both Rule 23(e)(2)(A) and (B) met, the Settlement Agreement

comports with the procedural fairness requirement and the court next discusses

whether the Settlement Agreement also comports with the substantive fairness

requirements under Rule 23(e)(2)(C) and (D).

c. Rule 23(e)(2)(C) - Adequate Class Relief

As regards whether the Settlement Agreement provides adequate relief to the

Settlement Class, the court must consider “(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 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). All four criteria are

pertinent here.

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

Consideration under Rule 23(e)(2)(C)(i) of the costs, risks, and delay of trial and

appeal subsumes the first, fourth, fifth, sixth, eighth, and ninth Grinnell factors,

pertaining to the complexity, expense and likely duration of litigation, the risks of

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

through trial, the range of reasonableness of the settlement fund in light of the best

possible recovery, as well as all the attendant risks of litigation. Marin, 2025 WL

893731, at * 7 (quoting Mikhlin v. Oasmia Pharm. AB, 2021 WL 1259559, at *5

(E.D.N.Y. Jan. 6, 2021)). “Courts favor a settlement that ‘results in substantial and

tangible present recovery, without the attendant risk and delay.’” Id. (quoting Sykes v.

Harris, 2016 WL 3030156, at * 12 (S.D.N.Y. May 24, 2016)).

“Given a class action suit’s complexity, ‘it is reasonable to assume’ that, without a

settlement, continued litigation will require ‘extensive time and expense.’” Caccavale v.

Hewlett-Packard Co., 2025 WL 882220, at * 7 (E.D.N.Y. Mar. 14, 2025) (quoting

Garland v. Cohen & Krassner, 2011 WL 6010211, at *7 (E.D.N.Y. Nov. 29, 2011)).

Further, “‘[i]n considering the risks of establishing liability, the court need only assess

the risks of litigation against the certainty of recovery under the proposed settlement.’”

Id. (quoting Mikhlin, 2021 WL 1259559, at *5). Here, the history of this action and

supporting declarations and exhibits filed in connection with both the earlier motion for

preliminary approval as well as Plaintiffs’ Motion seeking final judicial approval of the

Settlement Agreement establishes that the Settlement Agreement is superior to the

costs, risks, and delay of trial and appeal.

In particular, Plaintiffs explain that prior to reaching a settlement, “[t]he merits of

the litigation were hotly contested by both sides,” with Defendant contesting conditional

certification of the FLSA Collective and would likely have opposed Plaintiff’s motion for

certification of the New York Class pursuant to Rule 23. First Brown Declaration ¶ 14.

Prior to trial, in addition to filing memoranda of law on anticipated competing summary

judgment motions, Defendant likely would move to decertify the FLSA Collective, all

costly and time-consuming endeavors. Id. The parties recognize several defenses are

available to Defendant that pose risks to establishing liability, damages, and maintaining

the class through trial, including challenging that the collective and class members are

not similarly situated, and the pre- and post-shift work for which Plaintiffs seek

compensation in this action was not compensable or, alternatively, the alleged amount

of uncompensated time is grossly exaggerated and is de minimus and thus not

compensable. Id. ¶ 15. Other defenses include that Defendant’s rounding policy was

fairly implemented and not one-sided, that Plaintiffs’ claims relative to straight time

damages are untenable or not well-suited for class treatment, and that Plaintiffs cannot

successfully establish any willful violations of the relevant FLSA and NYLL wage and

hours provisions on which they sue. Id. These anticipated litigation proceedings and

defenses establish that absent settlement, the proceedings would be complex, costly,

and lengthy in this court, as well as in the Second Circuit on any appeals. Id. ¶ 16.

Further, the proposed settlement fund is, in light of the best possible recovery,

reasonable given that, based on the determination that each Settlement Class Member

was not compensated for an average of 8.3 minutes per day,14 with the average

recovery calculated at $ 2,179.01, and the highest recovery $ 8,489.67. First Brown

Declaration ¶ 7; Butler Declaration ¶ 17. The amounts recovered are 100% of the

actual and liquidated damages that can be recovered for the FLSA claims and 87% of

the overtime and straight-time wages that could be recovered on the NYLL claims.15

First Brown Declaration ¶ 7; see Second Brown Declaration ¶ 16 (averring recovery was

100 % of actual and liquidated damages for FSLA claim and “approximately 90% of the

14 The amount of uncompensated time ranges from 3 to 12 minutes per violation. See Dkts. 97-14

through 97-16 (sample time-clock summaries for Opt-in Plaintiffs Brian Belcher, Robertson, and Devon

Taylor).

15 “Both the FLSA and NYLL provide for an award of liquidated damages, equal to the amount of unpaid

wages, to the prevailing employee.” Hardgers-Powell v. Angels In Your Home LLC, 2019 WL 4929830, at

*4 (W.D.N.Y. Oct. 7, 2019) (citing NYLL § 198(1-a); 29 U.S.C. § 216(b)). See also Alonso Vazquez v.

Azoulay, 834 Fed.Appx. 653, 655 (2d Cir. 2021) (“Under NYLL § 198(1)(1-a), plaintiffs are entitled to

recover liquidated damages . . . .”); Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 150

(2d Cir. 2008) (“Under the FLSA, a district court is generally required to award a plaintiff liquidated

damages equal in amount to actual damages.” (citing 29 U.S.C. § 216(b)).

unpaid overtime and straight-time wages” for the NYLL claim). See Pickard v. OnSite

Facility Serv., LLC, 2023 WL 7019256, at *8 *N.D.N.Y. Oct. 25, 2023) (approving NYLL

wage and hour class action settlement representing 16% of the class’s maximum

recovery). Although recovery for the NYLL claims is less than 100% of the possible

actual and liquidated damages, Plaintiffs explain that absent settlement, recovery on the

NYLL claims is accompanied by additional challenges compared to recovery on the

FLSA claims, including that class certification of the New York Class is subject to the

more stringent requirements of Rule 23, such that the New York Class would be subject

to a higher risk of decertification. Dkt. 97 at 18-19.

As regards participation rates, of 220 packets containing both notices and claim

forms sent to those employees identified as putative New York Class members, 99 of

those eligible to pursue only NYLL claims along with another eight eligible to pursue

both FLSA and NYLL claims, returned claim forms and thus are New York Class

members, i.e., a participation rate of 48.63% for the New York Class. Second Brown

Declaration ¶ 16. This rate favorably compares to similar class actions. See, e.g., Zink

v. First Niagara Bank, N.A., 2016 WL 7473278, at * 5 (W.D.N.Y. Dec. 29, 2016)

(considering 43% participation rate based on submission of claim in Rule 23 class

“extraordinary” and citing Cambery v. Tuxedo Junction Inc., 2014 WL 3725157, at * 6

(W.D.N.Y. 2014) (considering 37% submission of claims to be an “unusually high

participation rate for a “claims made” settlement agreement which “‘regularly yield

response rates of 10 percent or less.’” (quoting Sylvester v. CIGNA Corp., 369

F.Supp.2d 34, 52 (D.Me. 2005))).

These undisputed assertions, supported by declarations and exhibits, establish

that this factor, as well as the first, fourth, fifth, sixth, eighth, and ninth Grinnell factors,

weigh in favor of approving the Settlement Agreement.

ii. Effectiveness of Proposed Distribution Method

Evaluation of the Rule 23(e)(2)(C)(ii) requirement pertaining to the effectiveness

of the parties “proposed method of distributing relief to the class, including the method

of processing class-member claims,” requires not that the allocation plan for settlement

funds be perfect, but that there is “a reasonable, rational basis, particularly if

recommended by experienced and competent class counsel.” Mikhlin, 2021 WL

1259559, at *6. In the instant case, the Settlement Agreement provides for the Claim

Administrator to mail settlement checks drawn from the QSF to each Participating Class

Member at the address provided by each such member on the timely submitted Claim

Form. Settlement Agreement § 2.10. The settlement checks are to be paid within 15

days after the Claims Administrator receives the agreed upon funds from Trinity. Id. §

3.1. Further, each Participating Class Member’s proportionate share is to be

determined pursuant to a formula based upon the number of weeks each Participating

Class Member worked as a non-exempt, hourly production employee at Trinity’s Buffalo

plant. Id. ¶ 3.4(B). This distribution method appears fair and reasonable. See, e.g.,

Marin, 2025 WL 893731, at * 8 (approving class settlement distribution method that was

based on a proportionate share formula).

iii. Proposed Attorneys’ Fees Award

Rule 23(e)(2)(C)(iii) requires the court to consider the “terms of any proposed

award of attorney’s fees, including timing of payment . . . .” The instant Settlement

Agreement provides for Class Counsel to seek an award of attorney gees not to exceed

one-third or $ 280,000, of the Settlement Amount of $ 840,000. Settlement Agreement

§ 3.2(A). The Court has discretion to award fees based on either the lodestar method

or the percentage method. McDaniel v. County of Schenectady, 595 F.3d 411, 417 (2d

Cir. 2010) (“Although we have 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.” (internal quotation omitted)). “In using the percentage of the fund

approach, the Court must first determine a baseline reasonable fee percentage in

relation to the settlement, using common fund settlements of similar magnitude and

complexity as guidance.” Story v. SEFCU, 2021 WL 736962, at *12 (N.D.N.Y. Feb. 25,

2021) (citation omitted). A “baseline” fee of 33% of the instant GSF has been found

reasonable. See Edwards v. Mid-Hudson Valley Fed. Credit Union, 2023 WL 5806409,

at *10 (N.D.N.Y. Sept. 7, 2023) (considering class counsel award of approximately 33%

of the Settlement Fund to be reasonable for purposes of Rule 23(e)(2)(C)(iii)). Further,

the more in-depth analysis of the requested fees pursuant to Rule 23(h), as discussed

below in connection with Class Counsel’s application for attorney fees and costs,

Discussion, infra, at 39-43, also establishes the one-third baseline amount is reasonable

here.16

16 “But Rule 23(h) and Rule 23(e) are distinct rules with distinct purposes, and analyses conducted under

one cannot suffice to satisfy the other.” Kurtz v. Kimberly-Clark Corporation, 142 F.4th 112, 120-21 (2d

Cir. 2025).

iv. Agreements under Rule 23(e)(3)

Pursuant to Rule 23(e)(2)(C)(iv), the court must consider whether there are any

agreements to be identified under Rule 23(e)(3), which “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.” In re Northern

Dynasty Minerals Ltd. Securities Litigation, 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 v. JPMorgan Chase Bank, N.A., 2021 WL 7906584, at

*9 (E.D.N.Y. May 25, 2021) (citing In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d

686, 696 (S.D.N.Y. 2019)). Accordingly, both Rule 23(e)(2)(C)(iv) and Rule 23(e)(3)

weigh in favor of the Settlement Agreement.

d. Rule 23(e)(2)(D) – Equitable Treatment of Class Members

Under Rule 23(e)(2)(D), the court considers whether the proposed Settlement

Agreement “treats class members equitably relative to each other.” Here, the proposed

Settlement Agreement provides that monies in the Net Settlement Fund will be

distributed to each Settlement Class member on a pro-rata basis calculated according

to the number of workweeks each Settlement Class member worked during the subject

period. Settlement Agreement § 3.4. Significantly, Rule 23(e)(2)(D)’s requirement that

class members be equitably treated relative to each other is considered satisfied where

each class member is to receive a pro rata share of the settlement fund. See, e.g.,

Edwards v. Mid-Hudson Valley Federal Credit Union, 2023 WL 5806409, at * 9

(N.D.N.Y. Sept. 7, 2023) (citing cases including, inter alia, Christine Asia Co. v. Yun Ma,

2019 WL 5257534, at * 15 (S.D.N.Y. Oct. 16, 2019) (finding Rule 23(e)(2)(D)’s

requirement that class members be treated equitably relative to each other is satisfied

where each class member was to receive a “pro rata share” of the settlement fund));

accord, In re Namenda Direct Purchaser Antitrust Litigation, 452 F.Supp.3d 307, 316

(S.D.N.Y. 2020).

In addition to the Settlement Agreement’s provision for pro rata distribution of the

settlement fund to a calculation based on the amount of time each New York Class

member worked during the subject period, the court must also consider the Settlement

Agreement’s provision for each of the two Named Plaintiffs to receive incentive or

“service” awards of $ 10,000. See Caccavale, 2025 WL 882220, at ** 12-13

(considering the impact of service awards on the equitable treatment of class members

factor). Rule 23(e)(2)(D)’s mandate “direct[ing] courts to approve a settlement proposal

only if it ‘treats class member equitably relative to each other,’ . . . is harmonious with,

and promoted by, [the Second Circuit’s] clear precedent that permits district courts to

approve fair and appropriate incentive awards to class representatives.” Moses, 79

F.4th at 253 (quoting Fed.R.Civ.P. 23(e)(2)(D), and citing cases including, inter alia,

Melito v. Experian Marketing Solutions, Inc., 923 F.3d 85, 96 (2d Cir. 2019) (that class

action involved a common settlement fund from which class members were to be paid

did not preclude payment of incentive bonuses to named class representative

plaintiffs)). Relevantly, “[i]ncentive awards encourage class representatives to

participate in class action lawsuits, which are ‘designed to provide a mechanism by

which persons, whose injuries are not large enough to make pursuing their individual

claims in the court system cost efficient, are able to bind together with persons suffering

the same harm and seek redress for their injuries.’” Id. (quoting S.Rep. No. 109-14, at

5; 1 Joseph McLaughlin on Class Actions § 1:1 (19th ed. 2022) (narrating the historical

purposes of incentive awards); and Johnson v. NPAS Sols. LLC, 43 F.4th 1138, 1145

(11th Cir. 2022) (Pryor, J., dissenting from the denial of rehearing en banc)). “Such

incentive awards often level the playing field and treat differently situated class

representatives equitably relative to the class members who simply sit back until they

are alerted to a settlement.” Id. at 235.

According to the Second Circuit, “‘the decision to grant the [service] award, and

the amount thereof, rests solely within the discretion of the Court.” Fikes Wholesale,

Inc. v. HSNC Bank USA, N.A., 62 F.4th 704, 722 (2d Cir. 2023) (quoting Dial Corp. v.

News Corp., 317 F.R.D. 426, 439 (S.D.N.Y. 2016)) (brackets in Fikes Wholesale, Inc.).

Although “‘[i]ncentive payments to class representatives do not, by themselves, create

an impermissible conflict between class members and their representatives,’” Moses, 79

F.4th at 256 (quoting In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (2d Cir.

2015)), courts generally rely upon several factors in determining whether to grant

service awards. See Fiske Wholesale, Inc., 62 F.4th at 721. Such factors include,

“[1] the existence of special circumstances including the personal risk (if any)

incurred by the plaintiff-applicant in becoming and continuing as a litigant, [2] 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), [3] any other

burdens sustained by that plaintiff ... and, of course, [4] the ultimate recovery.”

Id. (quoting Dial Corp., 317 F.R.D. at 439 (bracketed material in Fiske Wholesale, Inc.).

Here, the Settlement Agreement provides for payment of $10,000 to each of the

two Named Plaintiffs, e.g., Robertson and Szalasny. Settlement Agreement § 3.3. In

support of these awards, both Robertson and Szalasny have submitted declarations

explaining that they have been involved in this action since April 2019, Robertson

Declaration ¶ 6; and November 2019, Szalasny Declaration ¶ 7. Since becoming

involved in this action, both Named Plaintiffs have represented the interests of all

hourly-paid production employees and assisted Plaintiffs’ Counsel with investigating and

prosecuting the claims by providing Plaintiffs’ Counsel with relevant information and

documents including paystubs, timesheets, and copies of written policies, which

information was used by Plaintiffs’ Counsel to draft the pleadings and otherwise

advance the action. Robertson Declaration ¶¶ 7, 9; Szalasny Declaration ¶¶ 8-9. Both

Robertson and Szalasny agreed to be Named Plaintiffs with the understanding their

involvement in such roles would be public record and discoverable to anyone searching

the internet for them as well as Defendant, their former employer. Robertson

Declaration ¶ 8; Szalasny Declaration ¶ 9. Both Named Plaintiffs discussed with

Plaintiffs’ Counsel the mediation sessions for which Robertson and Szalasny made

themselves available to provide input if necessary. Robertson Declaration ¶ 10;

Szalasny Declaration ¶ 11. Although not required to do so, both Named Plaintiffs were

willing to answer written discovery requests or to sit for depositions, as well as to travel

to participate in discovery, and have also remained in contact with Plaintiffs’ Counsel,

promptly and fully answering any and all questions and providing any additional

information requested. Robertson Declaration ¶¶ 11-14; Szalasny Declaration ¶¶ 11-

14. These facts establish both Robertson and Szalasny have, for more than five years,

expended time and effort assisting in the prosecution and litigation of this action for

which the average recovery per New York Class member is $ 2,179.01, and the highest

recovery $ 8,489.67, such that requested service awards of $ 10,000 are reasonable.

See Caccavale, 2025 WL 882220, at *13 (determining $ 10,000 was reasonable service

award where the facts suggested the named plaintiff’s time and effort expended in

assisting and prosecuting the actions, as well as that the average recovery per class

member ranged from $ 1,260.11 to $ 12,601.13, was not so disproportionate as to

preclude approval of the settlement).

e. Remaining Grinnell Factors

Having completed consideration of each of the Rule 23(e)(2) factors, the court

addresses the few remaining Grinnell factors including the second factor (the reaction of

the class to the settlement), third factor (the stage of the proceedings and the amount of

discovery completed), and seventh factor (the ability of the defendants to withstand a

greater judgment). Here, these factors weigh in favor of the Settlement Agreement.

In particular, the New York Class reaction to the proposed Settlement Agreement

is positive as evidenced by the fact that no New York Class member objected to the

settlement, thus satisfying the second Grinnell factor. Plaintiffs’ Memorandum at 1, 2, 8.

See Gonzalez v. Hanover Ventures Marketplace LLC, 2025 WL 1603941, at * 3

(S.D.N.Y. June 6, 2025) (“The Court also finds that the Class' reaction to the settlement

was positive, as no Class Member objected to the settlement.). With regard to the

stage of proceedings and amount of discovery completed, the third Grinnell factor, as

Plaintiffs assert, Plaintiffs’ Memorandum at 8, discovery in this action is complete, and

the negotiations leading to the proposed Settlement Agreement heavily relied on

“significant information, including payroll records for the putative class and speaking

with Opt-in Plaintiffs.” Id. As for Trinity’s ability to withstand a greater judgment, this

seventh Grinnell factor is granted less weight because “a defendant’s ability to

withstand a greater judgment, standing alone, does not suggest that the settlement is

unfair.” Manley v. Midan Rest. Inc., 2017 WL 1155916, at *5 (S.D.N.Y. Mar. 27, 2017).

In the instant case, although the court does not have sufficient information to determine

whether Defendant could withstand a greater judgment, given that the amount to be

recovered on the NYLL claims is 87% of the overtime and straight-time wages that

could be recovered on such claims, this factor is at least neutral. See Medina v. NYC

Harlem Foods Inc., 2024 WL 230745, at * 5 (S.D.N.Y. Jan. 22, 2024) (finding a

defendant’s ability to pay more to be inconsequential). Accordingly, these three final

Grinnell factors also point to finding the proposed Settlement Agreement is reasonable.

f. Settlement Agreement Approval for the New York Class

With the determination that the Settlement Agreement meets all requirements

under Rule 23(e), and consideration that the Grinnell factors also weigh in favor of

approval, the Settlement Agreement thus is approved with respect to the New York

Class and NYLL claims.

B. Approval of FLSA Settlements

Having approved the Settlement Agreement as to the New York Class, the court

next examines whether the Settlement Agreement should be approved with regard to

the FLSA. “The FLSA permits employees to pursue collective actions to recover unpaid

wages where the employees are ‘similarly situated’ and file a written consent to become

a party.” Marin, 2025 WL 893731, at * 5 (quoting 29 U.S.C. § 216(b)). Parties may not,

however, “privately settle and dismiss with prejudice FLSA claims absent approval of

the district court or the United States Department of Labor.” Id. (citing Samake v.

Thunder Lube, Inc., 24 F.4th 804, 807 (2d Cir. 2022); and Cheeks v. Freeport Pancake

House, Inc., 796 F.3d 199, 200 (2d Cir. 2015). Where, as here, Department of Labor

approval is absent, the parties must establish to the district court’s satisfaction that the

proposed settlement is “fair and reasonable.” Velazquez v. SAFI-G, Inc., 137 F. Supp.

3d 582, 584 (S.D.N.Y. 2015).

In determining whether a FLSA settlement is fair and reasonable, district courts

consider the totality of the circumstances, including but not limited to the

following factors: (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.

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

for approval of a FLSA settlement based on the so-called “Wolinsky factors” “is lower

than for a class action under Rule 23[,]” such that “[i]f the proposed FLSA settlement

reflects a reasonable compromise over contested issues, it should be approved.”

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

Relevant to the instant case, “[b]ecause ‘t]he standard for approval of an FLSA

settlement is lower than for a Rule 23 settlement,’ satisfaction of the Grinnell factors

analysis will necessarily satisfy the standards of approval for the FLSA settlement.”

Flores v. CGI Inc., 2022 WL 13804077, at *9 (S.D.N.Y. Oct. 21, 2022) (quoting Massiah

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

Here, the court has approved the Settlement Agreement by application of the

Grinnell factors. See Discussion, supra, at 25-29, 35-36. Accordingly, the Settlement

Agreement is also approved with regard to the FLSA claims.

C. Attorney Fees and Costs

The proposed Settlement Agreement also provides for Class Counsel to be paid

up to $ 280,000 in attorney fees, representing one-third of the GSF of $ 840,000, and up

to $ 35,000 in costs. Settlement Agreement § 3.2. “Under the FLSA and the NYLL, a

prevailing plaintiff is entitled to reasonable attorneys' fees and costs.” Fisher v. SD

Protection Inc., 948 F.3d 593, 600 (2d Cir. 2020) (citing 29 U.S.C. § 216(b); NYLL §

663(1); and Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008)

(citing 29 U.S.C. § 216(b))). “An award of costs ‘normally include[s] those reasonable

out-of-pocket expenses incurred by the attorney and which are normally charged fee-

paying clients.’” Id. (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818

F.2d 278, 283 (2d Cir. 1987); and citing Torres v. Gristede's Operating Corp., 2012 WL

3878144, at *5 (S.D.N.Y. Aug. 6, 2012), aff'd, 519 Fed.Appx. 1 (2d Cir. 2013) (affirming

costs awarded, including out-of-town travel, meals, photocopying, and other expenses)).

Attorneys' fees and costs in actions involving wage and hours disputes generally

arise in three contexts: (1) fee applications following a ruling in favor of plaintiff; (2) fee

applications following a settlement where the settlement agreement reserves the

questions of fees and costs for the court to decide; and (3) settlements incorporating

attorneys' fees and costs into the settlement amount. Fisher, 948 F.3d at 601 (citations

and quotations omitted). In the instant case, the third scenario applies given the

proposed Settlement Agreement provides for Plaintiffs’ Counsel to receive an attorney

fee award of one third the GSF.

“As with all aspects of the Settlement Agreement, the Court must carefully

scrutinize the provisions providing for the payment of attorneys’ fees, costs, and

enhancement payments to ensure that they are fair and reasonable.” Chambery, 2014

WL 3725157, at * 8 (citing Davis v. J.P. Morgan Chase & Co., 827 F.Supp. 172, 183

(W.D.N.Y. 2011)). Just as the absence of objections to a settlement agreement does

not relieve the court of its independent obligation to assess whether the settlement if fair

and reasonable, the lack of objections also does not excuse the court from assessing

the fairness and reasonableness of an agreed-upon attorney's fee award, although it is

a factor weighing in support of approving the requested fee. Davis, 827 F.Supp.2d at

183 (citing cases).

1. Attorney Fees

Whether the requested fees are fair and reasonable may be determined pursuant

to either the so-called “percentage of fund” approach or the “lodestar approach.” See

Vazquez v. Lamont Fruit Farm, Inc., 2011 WL 6148806, at * 3 n. 3 (W.D.N.Y. Dec. 12,

2011) (“This Court notes that in the Second Circuit, an attorneys' fees award in a class

action settlement may be calculated either with the ‘lodestar’ approach or by the

‘percentage of fund’ approach, although the trend has been toward use of the

‘percentage of fund’ approach, under which the attorneys' fees award is set as a

percentage of the total award.” (quoting McDaniel, 595 F.3d at 417). When considering

an award of attorney fees in a class action case, the trend in the Second Circuit has

been to use the percentage method, with the lodestar method used to ‘cross-check’

along with several other considerations with respect to the requested fee’s

reasonableness. Chambery, 2014 WL 3725157, at * 8. These reasonableness

considerations include, “‘[1] the time and labor expended by counsel; [2] the magnitude

and complexities of the litigation; [3] the risk borne in the litigation; [4] the quality of the

representation; [5] the requested fee in relation to the settlement; and [6] public policy

considerations.’” Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 58 (E.D.N.Y.

2010) (citing Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000)).

The additional considerations are referred to the “Goldberger factors.” Further, “where

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 (citing In re

Prudential Ins. Co. Am. Sales Litig., 148 F.3d 283, 342 (3d Cir.1998) (approving this

practice)).

In the instant case, the requested award of one-third the GSF is not

unreasonable on its face. See Chambery, 2014 WL 3725157, at * 9 (considering a

requested attorney fee award of one-third the total settlement fund to be “not

unreasonable on its face,” and citing Morris v. Affinity Health Plan, Inc., 859 F.Supp.2d

611, 621 (S.D.N.Y. 2012) (considering the class action plaintiff’s counsel’s “request for

one-third of the [settlement] Fund is reasonable and ‘consistent with the norms of class

litigation in this circuit.” (internal quotation omitted)). Nevertheless, the court next cross-

checks the percentage-based fee request against the lodestar method in consideration

of the Goldberger factors.

As regards the first Goldberger factor, Plaintiffs, in support of the requested

attorney fees, submit billing records consisting of entries documenting the total time and

labor expended by each attorney and paralegal and other administrative employees for

each year this action has been pending, as well as the hourly billing rate for each such

employee. Second Brown Declaration Exh. 2 (Dkt. 104-2) at 2-3 (“Billing Summary”).

Plaintiffs also submit an itemized summary of contemporaneous time entries for each

employee who worked on the action with a description of the work performed. Id. at 4-

76 (“Itemized Billing Records”). The Billing Summary shows a total of 1,013.7 hours

were expended by 18 different employees including eight attorneys and ten paralegals

or other assistants between 2019 and 2023. Billing Summary at 2-3. The hourly rates

for such employees range from $ 75 for paralegals and other assistants to $ 175 for

associate attorneys to $ 250 for senior attorneys. Id. The Billing Summary calculates

the total fees by multiplying the number of hours worked by each employee by the

respective hourly rates, yielding $ 197,545 in total fees. Id. at 3. Dividing the $ 280,000

in percentage-based fees requested by $ 197,545 yields a “lodestar multiplier” of 1.42.

Although district courts will reduce a percentage-based fee award that exceeds the

lodestar figure by too much, district courts have approved multipliers of up to 3.5. See

Cunningham v. Suds Pizza, Inc., 290 F.Supp.3d 214, 232 (W.D.N.Y. 2017) (approving

in hybrid NYLL class action and FLSA collective action multiplier of 2.84 as “within the

range of multipliers accepted by courts in this district” and citing cases from this district

approving lodestar multipliers ranging from 1.04 to 5.3); In re Visa Check/Mastermoney

Antiturst Litig., 297 F.Supp.2d 503, 522 (E.D.N.Y. 2003) (reducing multiplier to 3.5 after

finding the requested multiplier of 10 to be “absurd”).

The second Goldberger factor pertaining to the magnitude and complexities of

the litigation, this is a hybrid action involving both NYLL claims brought on behalf of a

Rule 23 class, and FLSA claims brought on behalf of a collective class. Both the NYLL

and FLSA claims involved factual and legal questions and faced potential defenses by

Defendant for which Plaintiffs no doubt benefited from Plaintiffs’ Counsel extensive

experience in employment litigation and particular expertise with the FLSA and NYLL.

See Frank v. Eastman Kodak Co., 228 F.R.D. 174, 189 (W.D.N.Y. 2005) (considering

plaintiff’s counsel’s “extensive experience in employment litigation, and particular

expertise with the FLSA” as supporting the reasonableness of the requested fee award).

Accordingly, this action is of sufficient magnitude and complexity to support the

requested fee award.

Further, Plaintiffs’ counsel, who accepted the action on a contingency fee basis,

faced inherent risks that they might not recover any fees should the action not result in a

recovery for Plaintiffs. If this case did not settle, it is likely that Defendants would have

challenged certification of the FLSA Collective as well as Plaintiff’s motion for

certification of the New York Class pursuant to Rule 23, and also filed for summary

judgment. First Brown Declaration ¶ 14. Several defenses were available to Defendant

including challenging that the pre- and post-shift work for which Plaintiffs seek

compensation in this action was not compensable, the claimed uncompensated time is

grossly exaggerated or is de minimus and thus not compensable, Defendant’s rounding

policy was fairly implemented, that Plaintiffs’ claims relative to straight time damages

are untenable or not well-suited for class treatment, and that Plaintiffs cannot

successfully establish any willful violations of the relevant FLSA and NYLL wage and

hours provisions for which they sue. Id. ¶ 15. These risks undercut the certainty of

ultimate recovery and weigh in favor of the requested fee award, Frank, 228 F.R.D. at

189, thus satisfying the third Goldberger factor. That amounts of recovery provided

under the Settlement Agreement, i.e., 100% recovery on the FLSA claims and 87%

recovery on the NYLL claims, is meaningful and thus supports finding both the quality of

representation and the amount of the fee in relation to the settlement sufficient to

substantiate the requested fee award. See Acevedo v. Workfit Medical LLC, 187

F.Supp.3d 370, 383 (W.D.N.Y. 2016) (finding the “meaningful relief” obtained for

plaintiffs by class counsel established such counsel were zealous advocates). Finally,

public policy considerations, including the need for counsel to represent plaintiffs on a

contingency fee basis in complex class actions involving labor law claims such as the

instant action wherein Plaintiffs seek to recover unpaid wages for hours worked, will be

furthered by the granting of attorney fees. See Beebe v. V&J National Enterprises, LLC,

2020 WL 2833009, at * 9 (W.D.N.Y. June 1, 2020) (“Public policy considerations

counsel in favor of an award of fees—'[f]ee awards in wage and hour cases are meant

to encourage members of the bar to provide legal services to those whose wage claims

might otherwise be too small to justify the retention of able, legal counsel.’” (quoting

Hernandez v. Merrill Lynch & Co., 2013 WL 1209563, at *8 (S.D.N.Y. Mar. 21, 2013)

(further quotation omitted)).

For the foregoing reasons, Plaintiffs’ Counsel is awarded $ 280,000 in attorney

fees to be paid from the GSF as provided in the Settlement Agreement.

2. Costs

Plaintiffs' counsel also seeks $ 14,581.54 in litigation costs of which the largest

part, $ 7,850, represents the settlement administration costs to be paid to the Claims

Administrator. “Courts typically allow counsel to recover their reasonable out-of-pocket

expenses.” Morris, 859 F.Supp.2d at 624 (permitting reimbursement of “filing fees,

telephone charges, postage, transportation, working meals, photocopies, and electronic

research.”).

Here, Plaintiffs' Counsel has provided for a breakdown of the costs incurred in

this litigation. The costs do not appear unreasonable based on the court's

understanding that the costs were actually incurred. Significantly, the Claims

Administrator has, and will continue to, perform significant administrative duties with

respect to this action, including preparing, printing, and mailing the notices regarding the

class and collective action settlement, receiving and tracking claims forms submitted by

the Settlement Class members, for whom Simpluris will also prepare and mail

settlement checks. Acevedo, 187 F.Supp.3d at 383-84.

Based on the information provided to the court, the litigation costs are reasonable

and fair. The court therefore grants Plaintiffs' counsel's request for payment of

14,581.54 in litigation costs, to be paid from the GSF as set forth in the Settlement

Agreement.

3. Final Order and Judgment

With the certification of the NYLL Class and approval of the Settlement

Agreement,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:

Except as otherwise defined herein, all capitalized terms used in this Final Order

and Judgment shall have the same meanings as ascribed to the in the Settlement

Agreement executed by counsel on behalf of the Named Plaintiffs and Class Members,

and Defendant, respectively.

1. The court has jurisdiction over the subject matter of this Litigation,

Plaintiffs, the Class Members, and Defendant for purposes of approving the Settlement

Agreement.

2. For the sole purpose of settling and resolving this Litigation, the court

certifies the New York Class pursuant to Fed.R.Civ.P. 23 which is defined as: those

individuals who were employed by Defendant Trinity as a non-exempt, hourly

production employee at its manufacturing facility located in Buffalo, New York from May

22, 2013 through March 26, 2019.

3. For the sole purpose of settling and resolving this Litigation, the court

hereby makes a final determination that the Named Plaintiffs and the Opt-in Plaintiffs

are “similarly situated” for purposes of 29 U.S.C. § 216(b). “Opt-In Plaintiffs” means the

Named Plaintiffs and those individuals who have filed a timely consent to participate in

the Litigation.

4. On January 17, 2023, this court preliminarily approved the Settlement

Agreement (Dkt. 100) (“Preliminary Approval Order”).

5. Notice to the Opt-in Plaintiffs and New York Class members has been

provided to the fullest extent reasonably possible in accordance with the court’s

Preliminary Approval Order, and the substance of and dissemination program for the

notice—which included direct notice through the U.S. Mail, which provided the best

practicable notice under the circumstances and was reasonably calculated, under the

circumstances, to apprise the Opt-in Plaintiffs and New York Class members of the

pendency of the Litigation, Class Counsel’s application for attorneys’ fees and

reimbursement of litigation costs, Service Awards to the Named Plaintiffs, Simpluris,

Inc.’s fees and costs for serving as the Settlement Claims Administrator, and the rights

of New York Class Members to object or request exclusion from the Settlement

Agreement and to appear at the Final Approval Hearing—was reasonable and

constituted due, adequate, and sufficient notice to all persons entitled to receive notice;

and fulfilled the requirements of Rule 23 of the Federal Rules of Civil Procedure,

Section 216(b) of the FLSA, the Constitution of the United States and any other

applicable laws and due process.

6. The Settlement Agreement was the result of arm’s-length negotiations,

including two mediation sessions overseen by Mediator William F. Bauer, and

conducted in good faith by experienced attorneys familiar with the legal and factual

issues and is supported by the Named Plaintiffs and Class Counsel.

7. The Named Plaintiffs and Class Counsel adequately represented the Opt-

in Plaintiffs and New York Class members for purposes of entering into and

implementing the Settlement Agreement.

8. The court hereby confirms its prior appointment of Named Plaintiffs. John

Szalasny is appointed as the Class Representative of the New York Class, and both

Named Plaintiffs, John Szalasny and Claude Robertson, are appointed as

representatives of the Opt-in Plaintiffs.

9. The court hereby confirms its prior appointment of Jason T. Brown and

Nicholas Conlon of Brown, LLC, for settlement purposes only, as Class Counsel for the

Class Members.

10. The court hereby approves the Settlement Agreement and hereby orders

that the Settlement Agreement shall be consummated and implemented in accordance

with its terms and conditions.

11. The court finds that the settlement embodied in the Settlement Agreement

is fair, reasonable, and adequate to the Named Plaintiffs, Opt-in Plaintiffs, and New

York Class members, and more particularly finds that:

a. The settlement was negotiated vigorously and at arm’s-length under

the auspices of the Mediator by Defense Counsel, on one hand, and the

Named Plaintiffs and Class Counsel on behalf of the Opt-in Plaintiffs and

New York Class members, on the other hand;

b. Plaintiffs and Defendant had sufficient information to evaluate the

settlement value of the Litigation;

c. If the Settlement had not been achieved, Named Plaintiffs and the Opt-

in Plaintiffs and New York Class members faced the expense, risk and

uncertainty of extended litigation;

d. The amount of the Settlement is fair, reasonable, and adequate, taking

into account the costs, risks, and delay of trial and appeal. The method of

distributing the Settlement Fund is efficient and the claims process was

not overly burdensome. The Settlement terms related to Service Awards,

attorneys’ fees and costs, and fees and costs of the Settlement Claims

Administrator do not raise any questions concerning fairness of the

Settlement and there are no agreements, apart from the Settlement,

required to be considered under Fed. R. Civ. P. 23(e)(2)(c)(iv). The

Settlement Fund is within the range of settlement values obtained in

similar cases;

e. At all times the Named Plaintiffs and Class Counsel have acted

independently of Defendant and in the interest of the Opt-in Plaintiffs and

New York Class members; and,

f. There were no filed objections to the Settlement.

12. The plan of allocation of the Net Settlement Fund is finally approved as

fair, reasonable, and adequate. The Settlement Claims Administrator shall distribute

the Net Settlement Fund in accordance with the Settlement Agreement. The Settlement

Claims Administrator shall have final authority to determine the share of the Net

Settlement Fund to be allocated to each Class Member in accordance with the terms of

the Settlement Agreement approved by the court.

13. All requirements of the Class Action Fairness Act, 28 U.S.C. § 1711 et

seq., have been met.

14. The releases and covenants not to sue set forth in the Settlement

Agreement, including but not limited to Section 4 of the Settlement Agreement, together

with the definitions contained in the Settlement Agreement relating thereto, are

expressly incorporated herein in all respects. Accordingly, the court orders that:

a. Named Plaintiff Szalasny, any other Opt-In Plaintiff who worked in New

York and did not submit a timely, valid Opt-out Statement, and each

Class Member who received Notice pursuant to this Agreement

(except persons who timely and properly opted out of the settlement under

Section 2.5) forever and fully release Defendant from all wage and hour

claims asserted under state law by and on behalf of the Class (the

“Released Rule 23 Claims”). The Released Rule 23 Claims include

all claims under the local and state laws of New York for unpaid wages,

and any related wage and hour claims, penalties, liquidated damages and

interest on such claims, and attorneys’ fees and costs related to such

claims relating to Class Members’ employment with Defendant

from May 22, 2013 through the Effective Date.

b. In addition to the Released Rule 23 Claims, based on their submission

of consent forms or Claim Forms, the Named Plaintiffs, Opt-in Plaintiffs,

and Participating Class Members forever and fully release Defendant from

all FLSA claims asserted in the Litigation (“Released FLSA Claims”). The

Released FLSA Claims include all FLSA claims for unpaid overtime

wages, any related wage and hour claims, liquidated damages, interest,

penalties, and attorneys’ fees and costs related to such claims relating to

Named Plaintiffs’, Opt-in Plaintiffs’, and Participating Class Members’

employment with Defendant through the Effective Date.

c. In addition to the Released Rule 23 Claims and Released FLSA

Claims, by signing and cashing their Settlement Checks, the Named

Plaintiffs receiving a Service Award additionally waive, release and

discharge Defendant from all claims, demands, causes of action, and

liabilities, whether known or unknown, relating to their employment with

Defendant, including but not limited to claims under the Americans With

Disabilities Act, National Labor Relations Act, Fair Labor Standards Act

(including but not limited to claims for overtime compensation), Equal Pay

Act, Employee Retirement Income Security Act of 1974, Worker

Adjustment and Retraining Notification Act, Title VII of the Civil Rights Act

of 1964, Civil Rights Acts of 1866, 1871 and 1991, Age Discrimination in

Employment Act, Family and Medical Leave Act, and any other federal,

state or local statute, regulation, and order, and in common law, through

the date the Named Plaintiffs sign this Agreement. Named Plaintiffs do

not release any claim that cannot be released as a matter of law or rights

under this Agreement.

d. Nothing in the Settlement Agreement or this Order will be considered a

waiver of any claims by Plaintiffs or Class Members that may arise after

the Effective Date.

15. The Named Plaintiffs, Opt-in Plaintiffs, and each Class Member who

received Notice pursuant to this Agreement (except persons who timely and properly

opted out of the settlement under Section 2.5), acting individually or together, or in

combination with others, are hereby permanently and finally barred and enjoined from

suing the Releasees (including Defendant) in any action or proceeding alleging any of

the Released Claims.

16. The Named Plaintiffs, Opt-in Plaintiffs, and each Class Member who

received Notice pursuant to this Agreement (except persons who timely and properly

opted out of the settlement under Section 2.5) hereby releases the Releasees from any

claims, liabilities, and attorneys’ fees and expenses arising from the allocation of the

Gross Settlement Amount or Net Settlement Fund and for all tax liability and associated

penalties and interest as well as related attorneys’ fees and expenses.

17. The operative complaint and all claims asserted therein in the Litigation

are hereby dismissed with prejudice and without costs to any of the Parties and

Releasees other than as provided for in the Settlement Agreement.

18. The court awards to Class Counsel $280,000.00 as fair and reasonable

attorneys’ fees, which shall include all attorneys’ fees associated with the Litigation. In

addition, Class Counsel shall receive reimbursement of costs associated with the

Litigation actually incurred, up to the amount of $14,581.54. These amounts shall be

paid from the Gross Settlement Amount as set forth in the Settlement Agreement.

19. The court awards to Simpluris, Inc. $7,850.00 for serving as the

Settlement Claims Administrator. This amount shall be paid from the Gross Settlement

Amount as set forth in the Settlement Agreement.

20. The court awards to each Named Plaintiff a Service Award of $10,000.00

for their risk, time and effort in this Litigation. The amount shall be paid from the Gross

Settlement Fund pursuant to the terms of the Settlement Agreement.

21. Based on the amounts approved for attorneys’ fees, costs associated with

the Litigation, the payment to the Settlement Claims Administrator, and the Service

Awards, the Net Settlement Fund is $ 517,568.46.

22. The court shall retain exclusive jurisdiction to resolve any disputes or

challenges that may arise as to the performance of the Settlement Agreement or any

challenges as to the performance, validity, interpretation, administration, enforcement,

or enforceability of the notices and payments made under the Settlement Agreement,

this Final Order and Judgment, or the Settlement Agreement or the termination of the

Settlement Agreement.

23. Any motion to enforce this Final Approval Order and Judgment or the

Settlement Agreement, including by way of injunction, may be filed in this Court, and the

provisions of the Settlement Agreement and/or this Final Approval Order and Judgment

may also be asserted by way of an affirmative defense or counterclaim in response to

any action that is asserted to violate the Settlement Agreement.

SO ORDERED.

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: August 5, 2025

Buffalo, New York