SPACK v. TRANS WORLD ENTERTAINMENT et al
| Carol Spack |
| Trans World Entertainment Corp. and Record Town, Inc. |
| 1:2017cv01335 |
| December 11, 2017 |
| US District Court for the Northern District of New York |
| Albany Office |
| XX US, Outside State |
| Christian F. Hummel |
| Thomas J. McAvoy |
| Fair Labor Standards Act |
| 28 U.S.C. ยง 1331 |
| Plaintiff |
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Filing
229
ORDER granting 217 Motion to Certify Class; granting 226 Motion to Certify Class; granting 227 Motion for Attorney Fees. ORDERED, on this 14th day of April, 2021, upon consideration of the Plaintiffs' Motion for Final Approval, the Not ion for Attorneys' Fees, Reimbursement of Expenses and Service Awards, it is: ORDERED, except as otherwise specified herein, the Court for purposes of this Order adopts all defined terms as set forth in the Agreement; ORDERED, this Court has jur isdiction over the subject matter of this litigation and all matters relating thereto, and over all Parties; ORDERED, pursuant to Rule 23, the Court confirms as final its certification of the Class for settlement purposes based on its findings in the Preliminary Approval Order and in the absence of any objections from Class Members to such certification; ORDERED, pursuant to 29 U.S.C. Section 216(b), the Court approves the FLSA Settlement and certifies the collective class under the FLSA; ORDERE D, the Court confirms as final the appointment of Plaintiffs Carol Spack, Tabitha Schmidt, and Natasha Roper as representatives of the Class, both under Federal Rule of Civil Procedure 23 and 29 U.S.C. Section 216(b); ORDERED, the Court likewise conf irms as final the appointment of Mashel Law, L.L.C. as Class Counsel for the Class pursuant to Federal Rule of Civil Procedure 23 and for individuals who opted into the Litigation pursuant to 29 U.S.C. Section 216(b); ORDERED, the Court finds the req uirements of the Class Action Fairness, 28 U.S.C. Section 1715 (CAFA), have been satisfied. The Court finds the requirements of CAFA have been satisfied, and this Order granting final approval of the settlement is now appropriate; ORDERED, the Cour t finds that the notice distributed to class and collective members (the "Class/Collective Notice") pursuant to the Preliminary Approval Order constituted the best notice practicable under the circumstances, was accomplished in all material respects, and fully met the requirements of Rule 23, the Fair Labor Standards Act, and due process; ORDERED, pursuant to Rule 23(e), this Court hereby grants the Motion for Final Approval and finally approves the settlement as set forth therein. Th e Court finds that the settlement is fair, reasonable and adequate in all respects ad that it is binding on Class Members who did not timely opt out pursuant to the procedures set forth in the Preliminary Approval Order. The Court specifically finds that the settlement is rationally related to the strength of Plaintiffs' claims given the risk, expense, complexity, and duration of further litigation. ORDERED, the Court finds that the proposed settlement is procedurally fair because it was reached through vigorous, arm's length negotiations and after experienced counsel had evaluated the merits of Plaintiffs' claims through factual and legal investigation. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 117 (2d Cir. 2005); ORDERED, the Court finds the settlement is also substantively fair. All the factors set forth in Grinnell, which provides the analytical framework for evaluating the substantive fairness of a class action settlement, weight in favor of final approval. City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). Therefore, the Court finds that the settlement is adequate given: (1) the complexity, expense and likely duration of the litigation; (2) the stage of the proceedings and the amount of discovery completed; (3) the risks of establishing liability and damages; (4) the risks of maintaining the class action through the trial; (5) the lack of any objections; 96) the ability of the defendants to withstand a greater judgment; a nd (7) that the Total Settlement Amount is within the range of reasonableness in light of the best possible recovery and the attendant risks of litigation. Grinnell, 495 F.2d at 463; ORDERED, the Court finds that the class' reaction to the sett lement was positive, as no Class Member objected to the settlement; ORDERED, the Court finds that the proposed plan of allocation is rationally to the relative strengths and weaknesses of the respective claims asserted. The mechanisms and procedures set forth in the Agreement by which payments are to be calculated and made to Class Members who did not timely opt out are fair, reasonable and adequate, and payment shall be made according to those allocations and pursuant to the procedures as set forth in the Agreement; ORDERED, the Court hereby grants Plaintiffs' Motion for Attorneys' Fees and awards Class Counsel $133,200.00, which is approximately 33 1/3% of the Settlement Funds, which the Court finds to be fair and rea sonable based on: (1) the number of hours worked by Class Counsel during the Litigation; (2) the results achieved on behalf of the Class; (3) the contingent nature of Class Counsel's representation; (4) the complexity of the issues raised by th e Litigation; (5) a lodestar cross check; and (6) Class Counsel's recognized experience and expertise in the market. The Court finds Class Counsel's hourly rates to be reasonable; ORDERED, the Court also awards Class Counsel reimbursement of their litigation expenses in the amount of $32,537.07, which are expenses the Court finds were necessarily and reasonably incurred by Class Counsel in prosecuting the Litigation. The attorneys' fees and the amount in reimbursement of l itigation costs and expenses shall be paid from the Settlement Fund; ORDERED, the Court approves and finds the service awards for Plaintiffs Carol Spack, Tabitha Schmidt and Natasha Roper in the amount of $5,000.00 each in recognition of the ser vices they rendered on behalf of the class. The Court also approves the requested service awards in the amount of $250.00 to the 40 Discovery Opt-In Plaintiffs who participated in discovery. These amounts shall be paid from the Settlement Fund s, subject to the terms of the Parties' Settlement Agreement; ORDERED, the Court approves and finds reasonable the payment of the Settlement Administrator's fees in the amount of $24,000.00 which shall be paid out of the Settlement Fun d, according to the terms of the Parties' Settlement Agreement; ORDERED, the Court hereby fully and finally dismisses this matter and Litigation in its entirety and with prejudice. Neither party to this Litigation is or shall be considered a pr evailing party; ORDERED, the Parties entered into the Settlement Agreement solely for the purpose of compromising and settling disputed claims. Defendants in no way admit any violation of law or any liability whatsoever to Plaintiffs, the Class or the Collective, individually or collectively, all such liability being expressly denied by Defendants; ORDERED, the Court retains jurisdiction over this action for the purpose of enforcing the Settlement Agreement and overseeing the distribution of settlement funds. The Parties shall abide by all terms of the Settlement Agreement, which are incorporated herein, and this Order. Signed by Senior Judge Thomas J. McAvoy on 4/14/2021. (khr)
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Filing
200
ORDER DISMISSING CASE. IT IS HEREBY STIPULATED AND AGREED, by and among the parties, through their undersigned counsel, that no party hereto is an infant or incompetent and that the above-captioned action is voluntarily dismissed without prejudice b y the following Opt-In Plaintiffs as against all Defendants pursuant to the Federal Rules of Civil Procedure 41(a)(1)(A)(ii), without an award of fees or costs to any party: 1. John Caswell; 2. Alvin Jankowski; and 3. Shawn Paxton. Signed by Senior Judge Thomas J. McAvoy on 12/20/2019. (khr)
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Filing
110
MEMORANDUM-DECISION & ORDER granting in part and denying in part 85 Motion for Discovery. ORDERED, that plaintiffs Motion to Compel (Dkt. No. 85) is GRANTED IN PART: (1) plaintiffs are to provide to defendants, within twenty-one (21) days after the close of the opt-in period, the full names of the SMs who chose to opt in, and within forty-five (45) days after receipt of those names, defendants are to provide to plaintiffs the following information for all SMs who opted-in as plaintiffs i n this action: a) Human Resources employees responsible for payroll of opt-in SMs and their contact information; b) District Managers for each opt-in SM and their contact information; c) Dates of employment, pay records and earning statements reflect ing hours worked for all opt-in SMs; d) documents showing compensation and wages paid for all opt-in SMs, and e) employee handbooks; hours worked and time records, and weekly schedules for all opt-in SMs; and it is further ORDERED, that within thirt y (30) days from the date of this Memorandum- Decision and Order, defendants are to provide to plaintiffs the full names, last known addresses, and TWEC- issued work e-mail addresses, where applicable, of all SAMs employed by defendants at any of t heir stores located within the United States for one week or more, from April 1, 2014, to the date of this Memorandum-Decision & Order; and it is further ORDERED, that plaintiffs demand for 20% sample discovery of SAMs is considered WITHDRAWN without prejudice and with opportunity to renew pending the outcome of plaintiffs intended motion for conditional certification for a collective of SAMs; and it is further ORDERED, that insofar as plaintiffs Motion to Compel seeks (1) full names, last known mailing addresses, email addresses, phone number(s), store locations, and dates of employment for the entire class of store managers and (2) 20% sample group discovery of the SM class pertaining to names, contact information, date s of employment, store locations and job titles for sample group members (interrogatories 1 and 3), such request is DENIED as moot; and it is further ORDERED, that plaintiffs Motion to Compel is otherwise DENIED. IT IS SO ORDERED. Signed by Magistrate Judge Christian F. Hummel on 2/13/2019. (khr)
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Filing
106
MEMORANDUM-DECISION & ORDER granting in part and denying in part 83 Motion to Certify Class. ORDERED, that plaintiffs Motion to Conditionally Certify as a Collective Action pursuant to FLSA § 216(b), Dkt. No. 83, is GRANTED in part: (1) pla intiffs may conditionally certify their misclassification claim as to Store Managers, (2) plaintiffs are permitted to set up a website, within the confines specified herein; (3) plaintiffs are granted permission to send one reminder notice by U.S. mail, within the confines specified herein; (4) defendants are ordered to post the Court-approved notice form in a conspicuous location in each of their stores for the entire duration of the notice period; and it is further ORDERED, that plaintiff s Motion to Conditionally Certify as a Collective Action pursuant to FLSA § 216(b), Dkt. No. 83, is DENIED in part: (1) plaintiffs request to certify their off-the-clock claim is denied; (2) plaintiffs request to allow potential opt-in plainti ffs to submit their consent to join forms by e-mail, website, or fax is denied; (3) plaintiffs request to send a reminder notice by e-mail is denied; and it is further ORDERED, that plaintiffs are permitted to distribute, by the means specified herein, the Court-authorized notice form, attached to this Memorandum-Decision and Order as Exhibit A, and it is further ORDERED, that the proposed consent form, Dkt. No. 83-30 at 6, is accepted, with the edits specified herein; and it is further O RDERED, that the proposed reminder form, Dkt. No. 83-30 at 8, with the edits specified herein, is accepted; and it is further ORDERED, that the Court will consider as potential plaintiffs all those who were employed as SMs for at least one week fro m April 1, 2014, to the date of this Memorandum-Decision & Order; and it is further ORDERED, that defendants are ordered to provide to plaintiffs, within twenty- one (21) days of the date of this Memorandum-Decision & Order by February 5, 2019 the names, work locations, dates of employment, telephone numbers, work e-mail addresses, and last known addresses of all current and former Store Managers who worked at any of the TWEC locations in the United States for at least one week from Apr il 1, 2014, to the date of this Memorandum- Decision & Order; and it is further ORDERED, that the notice period is SIXTY (60) days, beginning on February 5, 2019 the date by which defendants must turn over to plaintiffs the information specified above and ending on April 6, 2019. IT IS SO ORDERED. Signed by Magistrate Judge Christian F. Hummel on 1/15/2019. (Attachments: # 1 Exhibit A) (khr)
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