Leonardo et al v. ASC, Inc. et al
| Seferino Leonardo |
| ASC, Inc., P.J.'S of Little Italy, Inc., 133 Mulberry Street Restaurant, LLC, 7324 Amboy Road, LLC, 191 Grand Restaurant Corp., 3333 Hylan Blvd. Food Corp., Annette Sabatino, Nicholas Criscitelli, 151 Mulberry St. Corp, 164 Mulberry St. Corp. and Perry Criscitelli |
| 1:2018cv03657 |
| April 25, 2018 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Valerie E. Caproni |
| Fair Labor Standards Act |
| 29 U.S.C. ยง 201 |
| Plaintiff |
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Filing
134
ORDER OF DISMISSAL: It is now hereby ORDERED, as stated on the record of the hearing, that: 1. Under the unique circumstances of this particular case - which include the fact that Plaintiff has been deported to Mexico and would likely be unable to participate or assist meaningfully in a trial of this action, and the fact that Defendants appear to have strong defenses on liability - the Court finds the total amount of the proposed settlement payment by Defendants ($5,000, to be apportioned as $3,333.33 for Plaintiffs claimed damages and $1,666.67 for Plaintiff's attorneys' fees and costs) to be fair, reasonable, and adequate to redress Plaintiffs claims in this action and to compensate Plaintiff's counsel for their incurred legal fees and expenses, and the settlement amount is therefore approved. It is the Court's understanding that Plaintiff's portion of the settlement payment will be delivered to him by his nephew, Rafael Peral. 2. The remaini ng terms of the proposed Settlement Agreement are also approved, with the following modifications, as agreed by Defendants at the fairness hearing: as further set forth herein. As a separate matter surviving the Court's fairness review and the discontinuance of Plaintiff's claims, the Court continues to have questions regarding the sufficiency of the efforts of Plaintiff's counsel, C.K. Lee, Esq., to obtain from Plaintiff,prior to the submission of the proposed Settlement Agreem ent to the Court, Plaintiffs express agreement to all of the terms of the Settlement Agreement, which was signed on Plaintiff's behalf by Mr. Lee. When directed by the Court to "confirm[] that the entirety of the [Settlement] Agreement ha[d ] been reviewed with Plaintiff (translated, if necessary, into Plaintiff's native language) and that Plaintiff ha[d] expressly authorized counsel to sign the [Settlement] Agreement on his behalf' (Dkt. 126), counsel submitted an affidavit b y a paralegal, Luis Arnaud, who declared under penalty of perjury that he read the entire Settlement Agreement to Plaintiff on a date after the Court's Order, and had received Plaintiff's authorization to execute the agreement on his behalf at that time (Dkt. 127). At the fairness hearing-which Mr. Lee did not attend-Mr. Arnaud testified that, prior to the Settlement Agreement's execution, Mr. Arnaud had not similarly read the entire agreement to Plaintiff, although he believed he had explained certain of its terms. When the Court sought to inquire of Plaintiff (through a Spanish interpreter) as to whether Mr. Lee, himself, had separately gone through the entire Settlement Agreement with him and obtained his express authority to sign on his behalf, the Court found that Plaintiff's answers did not always appear to evince an understanding of the Court's questions. Under the circumstances, Mr. Lee is directed to submit to the Court, within one week of the date of this Order, an affidavit or declaration under penalty of perjury setting forth the steps that he took, as counsel, to ensure that Plaintiff was fully aware of all of the specific terms of the proposed Settlement Agreement and had authorized Mr. Lee to sign the Settlement Agreement on his behalf, prior to its submission to the Court. SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 12/20/2019) Copies to All counsel (via ECF). (kv)
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Filing
87
MEMORANDUM OPINION AND ORDER: re: 57 MOTION to Certify Class Pursuant to 29 U.S.C. § 216(b) filed by Seferino Leonardo. For all the foregoing reasons, Plaintiff's motion for conditional certification of a collective is GRANTED IN PART. The Court conditionally certifies a collective of kitchen staff (including dishwashers, cooks, bussers, and food preparers) who worked at La Nonna, Da Nico, and Pellegrino's at any time between April 30, 2015 and the present. Defendants are orde red to provide to Plaintiff's counsel contact information (including names, addresses, email addresses, and telephone numbers) for all potential members of the collective. The proposed notice must be modified consistent with this Order, and the parties must confer on any remaining objections to the form or means of distribution of the notice. Equitable tolling, if necessary, will be considered on a case-by-case basis. No later than December 5, 2018, the parties must jointly submit a revised proposed notice and a letter outlining any points of disagreement. If the Notice needs to be translated into a language other than English, the submission must indicate whether the parties have agreed on a proposed translation of the Notice. The Clerk is respectfully directed to close the open motion at Dkt. 57. SO ORDERED. (Signed by Judge Valerie E. Caproni on 11/14/2018) (ama) Modified on 11/14/2018 (ama).
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