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Brito v. Lucky Seven Rest. & Bar

United States District Court, S.D. New York
Dec 22, 2021
19 Civ. 3876 (PAE) (KHP) (S.D.N.Y. Dec. 22, 2021)

Opinion

19 Civ. 3876 (PAE) (KHP)

12-22-2021

JESUS BRITO, Plaintiff, v. LUCKY SEVEN RESTAURANT & BAR, LLC, D/B/A LUCKY 7 TAPAS BAR, LA CASA DEL MOFONGO INC., FELIX CABRERA, AVI DISHI, AND JOHN DOES #1-10, Defendants.


ORDER

PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE

On November 28, 2021, the parties submitted a proposed settlement agreement (“Agreement”), and a letter in support, Dkt. 94, in this Fair Labor Standards Act, New York Labor Law, and Wage Theft Protection Act action. Parties cannot privately settle FLSA claims with prejudice absent the approval of the district court or the Department of Labor. See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 200 (2d Cir. 2015). Rather, the parties must satisfy the Court that their agreement is “fair and reasonable.” Velasquez v. SAFI-G, Inc., No. 15 Civ. 3068 (WHP), 2015 WL 5915843, at *1 (S.D.N.Y. Oct. 7, 2015). Further, “[t]he Court must . . . separately assess the reasonableness of plaintiffs' attorneys' fees, even when the fee is negotiated as part of a settlement rather than judicially determined.” Lliguichuzcha v. Cinema 60, LLC, 948 F.Supp.2d 362, 366 (S.D.N.Y. 2013).

The Court has carefully reviewed the Agreement. Under the Agreement, defendants are to pay $200,000 in total. Plaintiff is to receive $130,171.85 and plaintiff's counsel, Stein & Nieporent LLP, is to receive $69,828.15. See Agreement Rider. The Agreement therefore allocates one-third of the settlement amount to plaintiff's counsel as attorneys' fees and reimbursement for expenses, which is common. See Trinidad v. Pret a Manger (UDS) Ltd., No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *11 (S.D.N.Y. Sept. 19, 2014) (“[A]warding fees of 33% is common in this district.”); Deran v. Antalia Turkish Cuisine LLC, No. 19 Civ. 6833 (BCM), 2020 WL 3414890, at *2 (S.D.N.Y. June 22, 2020) (approving settlement agreement awarding attorneys one-third of total settlement amount net of costs).

But the non-disparagement provision in the Agreement gives the Court pause, for it fails to include a “carve-out” for truthful statements about plaintiff's experience litigating this case. See Agreement ¶ 8; Lazaro-Garcia v. Sengupta Food Servs., No. 15 Civ. 4259 (RA), 2015 WL 9162701, at *3 (S.D.N.Y. Dec. 15, 2015) (noting that “not all non-disparagement clauses are per se objectionable, ” but that “if the provision “would bar plaintiffs from making ‘any negative statement' about the defendants, it must include a carve-out for truthful statements about plaintiffs' experience litigating their case. Otherwise, such a provision contravenes the remedial purposes of the statute.”) (quoting Lopez v. Nights of Cabiria, LLC, 96 F.Supp.3d 170, 180 n.65 (S.D.N.Y. 2015)); see also Camacho v. Ess-A-Bagel, Inc., No. 14 Civ. 2592 (LAK), 2015 WL 129723, at *2 (S.D.N.Y. Jan. 9, 2015) (“Barring the plaintiff from speaking about the settlement would further[] resolution of no bona fide dispute between the parties, but rather thwart[] Congress's intent to ensure widespread compliance with the statute . . . by silencing the employee who has vindicated a disputed FLSA right.”) (internal quotation marks omitted).

In light of the deficiency, the Court declines to approve the settlement. This ruling is without prejudice to the right of the parties to submit a revised proposed settlement agreement. The parties are directed to do so by January 7, 2022.

SO ORDERED.


Summaries of

Brito v. Lucky Seven Rest. & Bar

United States District Court, S.D. New York
Dec 22, 2021
19 Civ. 3876 (PAE) (KHP) (S.D.N.Y. Dec. 22, 2021)
Case details for

Brito v. Lucky Seven Rest. & Bar

Case Details

Full title:JESUS BRITO, Plaintiff, v. LUCKY SEVEN RESTAURANT & BAR, LLC, D/B/A LUCKY…

Court:United States District Court, S.D. New York

Date published: Dec 22, 2021

Citations

19 Civ. 3876 (PAE) (KHP) (S.D.N.Y. Dec. 22, 2021)