Preview
FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014
NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
xxxxxxxx xxxx AND STAR RIVERA, on Index No.: 160993/2014
behalf of themselves and others similarly situated,
Plaintiffs,
-against-
HORNBLOWER NEW YORK, LLC;
HORNBLOWER CRUISES AND EVENTS; TERRY
MACRAE; and any other related entities,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION
FOR FINAL APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT, FOR
AN AWARD OF ATTORNEYS’ FEES AND COSTS, AND FOR AN INCENTIVE
AWARD TO THE CLASS REPRESENTATIVES
Lloyd R. Ambinder, Esq.
Suzanne Leeds Klein, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, New York 10004
(212) 943-9080
(212) 943-9082
-and-
Jeffrey Brown, Esq.
Michael Tompkins, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, New York 11514
(516) 873-9550
Attorneys for Plaintiff Class
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ......................................................................................................... iv
INTRODUCTION ...........................................................................................................................1
SETTLEMENT PROCEDURE .......................................................................................................1
POINT I:
THE SETTLEMENT SHOULD BE APPROVED BY THE COURT ............................................3
A. The Proposed Settlement is Fair, Reasonable, and Adequate ..................................3
1. Likelihood of Success and the Nature of the Issues of Law and Fact ...............4
2. Extent of Support from the Parties.....................................................................4
3. Balance of the Value of the Settlement Against the Value of Anticipated
Recovery ............................................................................................................5
4. Judgment of Counsel..........................................................................................6
5. Presence of Good Faith Bargaining ...................................................................7
POINT II:
CLASS COUNSEL’S ATTORNEY’S FEES AND COSTS ARE REASONABLE ......................8
A. The Percentage Method is Favored in Common Fund Class Actions ...................9
1. Risk of Litigation ............................................................................................12
2. Magnitude and Complexity of the Litigation...................................................13
3. Whether Counsel had the Benefit of a Prior Judgment....................................14
4. Responsibility Undertaken ...............................................................................14
5. Amount Recovered ..........................................................................................15
6. Case History and Work Done by Counsel .......................................................15
7. Standing at Bar Counsel for Plaintiffs and Defendants ...................................17
8. Reasonableness of Fee in Relation to Settlement ............................................18
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B. A Service Award Should be Awarded to Named Plaintiffs .........................................19
CONCLUSION ..............................................................................................................................22
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TABLE OF AUTHORITIES
CASES PAGE
Aboud v. Charles Schwab & Co.,
No. 14 Civ. 2712, 2014 WL 5794655 (S.D.N.Y. Nov. 4, 2014) ..................................................17
Alfaro, et al v. Vardaris Tech, et al.,
Index No. 109673/05 .....................................................................................................................17
Alleyne v. Time Moving & Storage Inc.,
264 F.R.D. 41 (E.D.N.Y. 2010) ....................................................................................................18
Arias v. Clear Channel Broadcasting, Inc.,
Case No. 14-CV-5088(SN) (S.D.N.Y. Feb. 2, 2016) ...................................................................16
Beckman v. KeyBank, N.A.,
No. 12 Civ. 7836, 2013 WL 1803736 (S.D.N.Y. Apr. 29, 2013) ..............................................9, 16
Behzadi v. Int’l Creative Mgmt. Partners, LLC,
No. 14 Civ. 4382 (S.D.N.Y. July 9, 2015) .........................................................................15, 17, 18
Bynog v. Cipriani Group, Inc.,
1 N.Y.3d 193 (2003)……………………………………………………………………4, 13, 14, 16
City of Detroit v. Grinnell Corp.,
495 F.2d 448 (2d Cir. 1974) ..........................................................................................................12
Clem v. Keybank, N.A.,
No. 13 Civ. 789, 2014 WL 2895918 (S.D.N.Y. June 20, 2014) ...................................................18
Connor v. Pier Sixty, LLC,
918 N.Y.S.2d 396 (Sup. Ct. N.Y. 2010)………………………………………………..4, 13, 14, 16
Cox v. Microsoft Corp.,
907 N.Y.S.2d 436 (Sup. Ct. 2007) ......................................................................................9, 14, 15
D’Amato v. Deutsche Bank,
236 F.3d 78 (2d Cir. 2001) ............................................................................................................13
Dabrowski v. Abax Inc.,
84 A.D.3d 633, 634, 923 N.Y.S.2d 505 (N.Y. App. Div. 2011) ..............................................7, 17
Davis v. J.P. Morgan Chase & Co.,
827 F. Supp. 2d 172 (W.D.N.Y. 2011) ...........................................................................................8
DeLeon v. Wells Fargo Bank, N.A.,
iv
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No. 12 Civ. 4494 (RLE), 2015 WL 2255394 (S.D.N.Y. May 7, 2015) ..........................................4
Diaz v. Eastern Locating Serv., Inc.,
No. 10 Civ. 04082, 2010 WL 5507912 (S.D.N.Y. Nov. 29, 2010) ...............................................18
Fernandez v. Hospitality,
No, 152298/2014, 2015 N.Y. Misc. LEXIS 2193 (Sup. Ct. June 20, 2015) .................4, 14, 19, 21
Fiala v. Met. Life Ins. Co., Inc.,
899 N.Y.S.2d 531 (Sup. Ct. N.Y. County 2010) .......................................................................3, 12
Frank v. Eastman Kodak Co.,
228 F.R.D 174 (W.D.N.Y. 2005).........................................................................................7, 19, 20
Garcia v. Exec. Club LLC,
No. 10-cv-1545 (SHS), 2012 U.S. Dist. LEXIS 189823 (S.D.N.Y. May 10, 2012) .................7, 17
Gilliam v. Addicts Rehabilitation Center Fund,
No. 05 CV 3452 (RLE), 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) ...........................................5
Goldberger v. Integrated Res.,
209 F.3d 43 (2d Cir. 2000).......................................................................................................11, 12
Greenfield v. Puig North America, Inc. et al.,
Index. No. 157654/2015 (N.Y. Co. Sup. Ct. Apr. 7, 2017) ...........................................................16
Guippone v. BH S&B Holdings, LLC,
No. 09 Civ. 1029, 2011 WL 5148650 (S.D.N.Y. Oct. 28, 2011) .................................................20
Henry v. Little Mint, Inc.,
No. 12 Civ. 3996, 2014 WL 2199427 (S.D.N.Y. May 23, 2014) .................................................20
In re Austrian & German Bank Holocaust Litig.,
80 F. Supp. 2d 164 (S.D.N.Y. 2000) .............................................................................................13
In re Colt Indus. Shareholder Litig.,
155 A.D.2d 154 (N.Y. App. Div. 1st Dep’t 1990) ...........................................................................3
In re Currency Conversion Fee Antitrust Litig.,
2009 WL 3415155 (S.D.N.Y. Oct. 22, 2009) ..................................................................................5
In re EVCI Career Colleges Holding Corp. Securities Litigation,
No. 05-cv-10240 (CM), 2007 WL 2230177 (S.D.N.Y. July 27, 2007) .........................................11
In re Initial Public Offering Sec. Litig.,
671 F.Supp. 2d 467 (S.D.N.Y. 2009)...............................................................................................5
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In re NASDAQ Market-Makers Antitrust Litigation,
187 F.R.D. 465 (S.D.N.Y. 1998) ..................................................................................................10
In re Polaroid ERISA Litigation,
No. 03 Civ. 8335, 2007 WL 2116398 (S.D.N.Y. July 19, 2007) ...........................................10, 11
In re Ramp Corp. Securities Litigation,
No. 05 Civ. 6521, 2008 WL 58938 (S.D.N.Y. Jan. 3, 2008) ..................................................10, 11
In re Sony SXRD Rear Projection Television Class Action Litig.,
No. 06 Civ. 5173 (RPP), 2008 WL 1956267 (S.D.N.Y. May 1, 2008) ...........................................5
In re Sumitomo Copper Litigation,
74 F. Supp. 2d 393 (S.D.N.Y. 1999) .............................................................................................10
In re Telik, Inc. Sec. Litig.,
576 F.Supp. 2d 570 (S.D.N.Y. 2008) ..............................................................................................7
Joel A. v. Giuliani,
218 F.3d 132 (2d Cir. 2000).............................................................................................................3
Karpus v. Borelli (“In re Interpublic Sec. Litig.”),
Nos. 02 Civ. 6527, 03 Civ. 1194, 2004 WL 2397190 (S.D.N.Y. Oct. 26, 2004) .........................11
Lasker v. Kanas,
No. 0103557/2006, 2007 N.Y. Misc. LEXIS 9269 (Sup. Ct. Sep. 26, 2007) .................................9
Lopez v. Dinex Grp., LLC,
2015 NY Slip Op 31866(U), (Sup. Ct. Oct. 6, 2015) .........................................................9, 13, 17
Maley v. Del Global Techs. Corp.,
186 F. Supp. 2d 358 (S.D.N.Y. 2002) .............................................................................................4
Masters, v. Wilhelmina Model Agency, Inc.,
473 F.3d 423 (S.D.N.Y. 2007) ......................................................................................................18
McDaniel v. County of Schenectady,
595 F.3d 411 (2d Cir. 2010) ......................................................................................................9, 10
McMahon v. Oliver Cheng Catering and Events, LLC.,
2010 WL 2399328 .........................................................................................................................16
Mohney v. Shelly’s Prime Steak,
No. 06-cv-4270 (PAC), 2009 WL 5851465 (S.D.N.Y. Mar. 31, 2009) .......................................10
Parker v. Jekyll & Hyde Entm’t Holdings, LLC,
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No. 08 Civ. 7670, 2010 WL 532960 (S.D.N.Y. Feb. 9, 2010) ...............................................16, 20
Peck v. AT&T Corp.,
No. 601587/2000, 2002 N.Y. Misc. LEXIS 2026 (Sup. Ct. N.Y. County July 26, 2002)...............3
Reyes v. Altamarea Grp., LLC,
No. 10 Civ. 6451, 2011 WL 4599822 (S.D.N.Y. Aug. 16, 2011) ................................................19
Reyes v. Buddha-Bar NYC,
No. 08-cv-2494(DF), 2009 WL 5841177 (S.D.N.Y. May 28, 2009) ...........................................10
Ryan v. Volume Servs. Am.,
No. 65970/2012, 2013 N.Y. Misc. LEXIS 932 (N.Y. Sup.Ct. Mar. 7, 2013) .........................3, 4, 9
Roberts v. Texaco, Inc.,
979 F. Supp. 185 (S.D.N.Y. 1997) ...............................................................................................19
Rosenfeld v. Bear Sterns & Co.,
237 A.D.2d 199 (N.Y. App. Div. 1st Dep’t 1997) ...........................................................................3
Sand v. Greenberg,
No. 08 Civ. 7840, 2010 WL 69359 (S.D.N.Y. Jan. 7, 2010) .......................................................9
Savoie v. Merchants Bank,
166 F.3d 456 (2d Cir. 1999) ..........................................................................................................11
Sewell v. Bovis Lend Lease, Inc.,
No. 09 Civ. 6548, 2012 WL 1320124 (S.D.N.Y. Apr. 16, 2012) .........................................8, 9, 19
Smith v. Fendi North America, Inc.,
Index. No. 151756/2015 (N.Y. Co. Sup. Ct. Oct. 19, 2016)..........................................................16
Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini,
258 F.Supp.2d 254 (S.D.N.Y. 2003) .............................................................................................10
Tart v. Lions Gate Entm't Corp.,
2015 U.S. Dist. LEXIS 139266 (S.D.N.Y. Oct. 13, 2015) .......................................................6, 17
Torres v. Gristede's Operating Corp.,
519 F. App'x 1 (2d Cir. 2013) .......................................................................................................18
Velez v. Majik Cleaning Serv., Inc.,
No. 03 Civ. 8698, 2007 WL 7232783 (S.D.N.Y. June 25, 2007) ...........................................10, 11
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,
396 F.3d 96,119 (2d Cir. 2005) .......................................................................................5, 9, 10, 11
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Willix v. Healthfirst Inc.,
No. 07 Civ. 1143, 2011 WL 754862 (E.D.N.Y. Feb. 18, 2011) ......................................................9
Witlow v. Burberry Limited, Burberry et al.,
Index No. 150529/2015 (N.Y. Co. Sup. Ct. Nov. 15, 2016) .........................................................16
Zeltser v. Merrill Lynch & Co., Inc.,
No. 13 Civ. 1531, 2014 WL 4816134 (S.D.N.Y. Sept. 23, 2014) ................................................17
STATUTES
N.Y. CPLR § 908 .............................................................................................................................3
CPLR § 909......................................................................................................................................8
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INTRODUCTION
Plaintiffs xxxxxxxx xxxx and Star Rivera, by their counsel Virginia & Ambinder, LLP
(“V&A”) and Leeds Brown Law PC (“LBL”) (collectively “Class Counsel”), submit this
unopposed memorandum of law in support of their Motion for Final Approval of the Class Action
Settlement brought by Plaintiffs individually, and on behalf of other similarly-situated service
workers (collectively “Plaintiffs” or “Class Members”), against Defendants Hornblower New
York, LLC, and Hornblower Cruises and Events (“Hornblower”) along with any other related
corporate entities, and Terry MacRae (Plaintiffs and Defendants are collectively, the “Parties”).
The Parties’ settlement resolves all claims before this Court, pursuant to the proposed compromise
set forth in the Settlement Agreement and Release (“Settlement Agreement”), and satisfies all
criteria for final approval.
On January 27, 2017, this Court took the first step in the settlement approval process by
granting preliminary approval of the settlement as set forth in the Settlement Agreement, directing
that notice be distributed to the Class Members, and setting the date for the final fairness hearing.
[See Order Granting Preliminary Approval, Docket No. 138]. The Class Members have been
notified of the terms of the settlement, the monetary relief, and their right to opt out of or object to
the settlement. For the reasons stated below, it is respectfully submitted that this Court should grant
final approval.
SETTLEMENT PROCEDURE
Pursuant to the Court’s January 27, 2017 Order preliminary approving the settlement,
Defendants’ Counsel, Kane Kessler, P.C. and Greenberg Traurig, LLP, provided the Claims
Administrator a list containing information for 314 unique Class Members. [See Exhibit 4,
Declaration of Jarrod Salinas Regarding Notice and Settlement Administration (“Salinas Dec.”) at
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¶ 5]. The mailing addresses contained in the Class List were processed and updated utilizing the
National Change of Address Database (“NCOA”) maintained by the U.S. Postal Service. [Salinas
Dec. ¶ 6.] On February 15, 2017, the Court-approved Notice of Proposed Settlement (“Notice”)
and the Claim Form and Release (“Claim Form”) (Claim Form and Notice are collectively referred
to as the “Notice Packet”) were distributed to 314 Class Members via first-class mail. [Salinas
Dec., ¶ 7; A true and accurate copy of the Court-approved Notice Packet is annexed to the
Affirmation of Lloyd Ambinder, dated August 4, 2017 (“Ambinder Aff.”) as Exhibit “3”.] Of the
314 Notice Packets distributed by First Class Mail, 14 were returned as undeliverable. [Salinas
Dec., ¶ 8.] A skip trace revealed updated addresses for 13 Class Members, which were promptly
remailed. [Salinas Dec., ¶ 8]. Ultimately, 1 Class Member’s Notice was undeliverable because
Simpluris was unable to locate a current address. [Salinas Dec., ¶ 8].
During the Notice Period, 29 Class Members submitted Claim Forms, in addition to the
two Named Plaintiffs, who were automatically deemed Qualified Claimants. [Salinas Dec., ¶ 9].
The 31 total Authorized Claimants comprises 9.87% of the Class. [Salinas Dec. at ¶ 9.] Only one
(1) Class Member submitted requests for exclusion from the Settlement, which is only .31% of the
Settlement Class. [Salinas Dec., ¶ 10]. No Class Member objected to the settlement. [Salinas Dec.,
¶ 11.]
Each Authorized Claimant will receive a Settlement Check with their portion of the Net
Settlement Amount of $1,475,000.00. [Salinas Dec., ¶ 12.] Payments will be based on the
following formula:
A percentage of events worked as compared against all events worked by the entire
Class. This is calculated by (1) taking the number of events worked by individual
Class Member during the period April 1, 2012 to October 31, 2014 (the numerator),
and (2) dividing it by the sum of all events worked by all Class Members (the
denominator) from April 1, 2012 to October 31, 2014. The denominator for each
Class Member will be the same number. As a result of this calculation, the total of
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all Class Members’ numerators must equal the denominator and provides for each
Class Member’s individual percentage allocation. The $2.3 million
Gross Settlement Fund shall be multiplied by the percentage allocation to arrive at
the dollar value of the individual allocation.
Any Class Member who worked solely after November 1, 2014, and files a claim
form shall receive a single lump sum payment of , and any
Class Member who worked both before and after November, 2014, and files a claim
form shall receive the higher of or his/her Individual Gross
Allocation Amount.
[See Settlement Agreement, ¶ 3.5]. As of this date, the highest Settlement Share to be paid to
Participating Class Members is approximately $81,500.74, and the average Settlement Share to be
paid is approximately $6,085.09. [Salinas Dec., ¶ 12].
POINT I:
THE SETTLEMENT SHOULD BE APPROVED BY THE COURT
CPLR § 908 requires judicial approval for any compromise of claims brought on a class
basis: “A class action shall not be dismissed, discontinued, or compromised without the approval
of the court.” CPLR § 908; see also Ryan v. Volume Servs. Am., No. 65970/2012, 2013 N.Y. Misc.
LEXIS 932, at *1 (N.Y. Sup.Ct. Mar. 7, 2013); Fiala v. Met. Life Ins. Co., Inc., 899 N.Y.S.2d 531,
537 (Sup. Ct. N.Y. County 2010). In determining whether to approve a class action settlement,
courts examine “the fairness of the settlement, its adequacy, its reasonableness and the best
interests of the Class Members.” Id. at 537 (citing Klein v. Robert’s A. Gourmet Food, Inc., 28
A.D.3d 63, 73 (N.Y. App. Div. 2d Dep’t 2006)); see also Rosenfeld v. Bear Sterns & Co., 237
A.D.2d 199 (N.Y. App. Div. 1st Dep’t 1997); Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000).
A. The Proposed Settlement is Fair, Reasonable, and Adequate
Relevant factors in determining whether a settlement is fair, reasonable, and adequate
include “the likelihood of success, the extent of support from the parties, the judgment of counsel,
the presence of bargaining in good faith, and the nature of the issues of law and fact.” In re Colt
Indus. Shareholder Litig., 155 A.D.2d 154, 160 (N.Y. App. Div. 1st Dep’t 1990) (internal quotation
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marks omitted); see also Peck v. AT&T Corp., No. 601587/2000, 2002 N.Y. Misc. LEXIS 2026,
at *14 (Sup. Ct. N.Y. County July 26, 2002). A court should also “balance the value of [a proposed]
settlement against the present value of the anticipated recovery following a trial on the merits,
discounted for the inherent risks of litigation.” Klein, 28 A.D.3d at 73. All of these factors weigh
in favor of approving the settlement.
1. Likelihood of Success and the Nature of the Issues of Law and Fact
Although Plaintiffs believe their claims have merit, they recognize the legal, factual and
procedural obstacles to recovery, as Defendants will continue to vigorously contest Plaintiffs’
claims if this action does not settle. This case hinged on several mixed questions of fact and law
with respect to the assessment and distribution of service charges that Plaintiffs allege were
purported to be unpaid gratuities, and therefore due and owing to the service employees who
comprise the Class. The significant risks of navigating potentially conflicting standards and
advancing litigation on behalf of hundreds of Class Members who worked for Defendants at
various times and catered affairs and in various functions present significant issues of law and fact.
Further, this case addresses the novel legal issue of whether temporary servers are entitled to
gratuities under NYLL § 196-d. See e.g. Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193 (2003);
Connor v. Pier Sixty, LLC, 918 N.Y.S.2d 396 (Sup. Ct. N.Y. 2010). While Plaintiffs were
successful in defeating Defendants’ motion for summary judgment, there is no guarantee that they
would have been successful at trial, where all of the evidence, disputed issues and witnesses would
be evaluated by a jury. These substantial disputed legal and factual issues support approval of the
settlement.
2. Extent of Support from the Parties
In evaluating the degree of Class Members’ support for a settlement, courts look to the
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proportion of the class that objects to and opts out of the settlement. “It is well-settled that the
reaction of the class to the settlement is perhaps the most significant factor to be weighed in
considering its adequacy.” Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 362 (S.D.N.Y.
2002). In addition, “[t]he fact that the vast majority of Class Members neither objected nor opted
out is a strong indication of fairness.” DeLeon v. Wells Fargo Bank, N.A., No. 12 Civ. 4494 (RLE),
2015 WL 2255394, at *4 (S.D.N.Y. May 7, 2015) (internal citations and quotation marks omitted).
Where relatively few Class Members opt-out or object to the settlement, the lack of opposition
supports court approval of the settlement. In re Sony SXRD Rear Projection Television Class
Action Litig., No. 06 Civ. 5173 (RPP), 2008 WL 1956267, at *6 (S.D.N.Y. May 1, 2008).
Of the 314 Class Members, none have filed an objection and only one Class Member has
opted out, representing .31% of the Settlement Class. [Salinas Dec., ¶ 10]. This reaction by the
class strongly weighs in favor of settlement. See In re Currency Conversion Fee Antitrust Litig.,
2009 WL 3415155, at *12 (S.D.N.Y. Oct. 22, 2009) (where 1% of members opted out or filed
objections, the reaction was “extraordinarily positive … and weighs in favor of settlement”); In re
Initial Public Offering Sec. Litig., 671 F.Supp. 2d 467, 485 (S.D.N.Y. 2009) (“If only a small
number of objections are received, that fact can be viewed as indicative of the adequacy of the
settlement.”) (citations omitted).
3. Balance of the Value of the Settlement Against the Value of Anticipated
Recovery
A settlement that is within a “range which recognizes the uncertainties of law and fact in
any particular case and the concomitant risks and costs necessarily inherent in taking any litigation
to completion” is appropriate. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96,119 (2d Cir.
2005). Here, the settlement amount recognizes the Parties’ “significant dispute” over the proper
measure of damages for individual Class Members, recognizes both the strengths and weaknesses
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of the Parties’ respective cases, and provides value to the Class Members through a certain and
immediate recovery. See In re Currency Conversion Fee Antitrust Litig., 2009 WL 3415155, at
*13; Gilliam v. Addicts Rehabilitation Center Fund, No. 05 CV 3452 (RLE), 2008 WL 782596, at
*5 (S.D.N.Y. Mar. 24, 2008) (“[S]ettlement assures immediate payment of substantial amounts to
Class Members, even if it means sacrificing speculative payment of a hypothetically larger amount
years down the road.”) (internal citation omitted).
Class Counsel has spent a great deal of time and effort analyzing and evaluating the merits
of the claims made against Defendant in this litigation and the impact of the Settlement Agreement
on Plaintiff and the Class Members. [Ambinder Aff. at ¶¶ 4-9.] Specifically, Class Counsel has
considered a myriad of factors, including the substantial risks of continued litigation and the
possibility that the case, if not settled now, might not result in any recovery or might result in a
recovery several years from now that is less favorable to Plaintiff and the Class Members than the
recovery outlined in the Settlement Agreement. Id. Moreover, the distribution to each member of
the Class is a significant and reasonable sum when one considers that the minimum wage over the
relevant time ranges from $7.15 to $9.50 per hour and Class Members worked varying lengths of
time each week, month or season. Moreover, there is always a risk that Defendants could win at
trial on the merits, which could result in a zero-dollar trial verdict. This settlement amount will
ensure that Claimants receive a fair sum in resolution of their claims. In light of such
considerations, Class Counsel is satisfied that the terms and conditions of the settlement are fair,
reasonable and adequate and that the settlement is in the best interests of Plaintiff and Class
Members.
4. Judgment of Counsel
Class Counsel also has substantial experience prosecuting large-scale wage and hour class
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and collective actions. Numerous courts have commented on Class Counsel’s experience as
employment litigators and efficient representation. See e.g. Tart v. Lions Gate Entm't Corp., 2015
U.S. Dist. LEXIS 139266 at *7 (S.D.N.Y. Oct. 13, 2015) (“Virginia & Ambinder, LLP and Leeds
Brown Law, P.C. are experienced and well-qualified employment and class action lawyers with
expertise in prosecuting and settling labor law cases.”); Garcia v. Exec. Club LLC, No. 10-cv-1545
(SHS), 2012 U.S. Dist. LEXIS 189823 (S.D.N.Y. May 10, 2012) (“Class Counsel [V&A and LBL]
have experience prosecuting and settling employment class actions, including wage and hour class
actions and are well-versed in wage and hour law and in class action law.”); Dabrowski v. Abax
Inc., 84 A.D.3d 633, 634, 923 N.Y.S.2d 505 (N.Y. App. Div. 2011) (observing that V&A “has
demonstrated its expertise and zealous representation of the plaintiffs here, as well as in prior class
action cases which have reached this court on appeal”).
Here, Plaintiffs’ Counsel investigated and researched the underlying merits of the potential
class claims, and the proper measure of damages. They also researched Defendant’s likely
affirmative defenses. Additionally, in considering the possibility of settlement, Class Counsel
accounted for the time, delay, and costs of trial and appeal. [Ambinder Aff., ¶ 4]. In light of the
strengths and weaknesses of the case, Class Counsel believes that the settlement easily falls within
the range of reasonableness because it achieves a significant benefit for the Class. Id.
5. Presence of Good Faith Bargaining
“A ‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement
reached in arms-length negotiations between experienced, capable counsel after meaningful
discovery.’” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 184 (W.D.N.Y. 2005) (quoting Wal-
Mart Stores Inc., 396 F.3d at 116). See also In re Telik, Inc. Sec. Litig., 576 F.Supp. 2d 570, 576-
577 (S.D.N.Y. 2008) (“[A] strong presumption of fairness attaches to a class action settlement
7
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reached in arm’s-length negotiations among able counsel.”). Further, “great weight is accorded to
the recommendations of counsel, who are most closely acquainted with the facts of the underlying
litigation.” Id. (internal citation omitted).
As discussed above and in the Parties’ Motion for Preliminary Approval, the Agreement
was reached after extensive arms-length negotiations involving competent and experienced
counsel for the Parties. [See Ambinder Aff. ¶ 4-9.] Plaintiffs’ attorneys are well-versed in
prosecuting and litigating class action wage and hour suits like this one. [Ambinder Aff. ¶¶ 27-
31.] Similarly, Defendant’s counsel has extensive experience in defending wage and hour class
actions. Further, the settlement was reached after the parties conducted extensive pre-class
certification discovery, including depositions of all the parties and a voluminous review of
documents. Here, counsel for both Parties endorse the settlement as fair, adequate, and reasonable.
For these reasons, the process leading to the Agreement was fair and reasonable.
POINT II:
CLASS COUNSEL’S ATTORNEY’S FEES AND COSTS ARE REASONABLE
CPLR § 909 permits an award of attorneys’ fees to class counsel. The settlement, which
has been preliminarily approved by the Court, provides for attorneys’ fees and costs in the amount
of $800,000, which is inclusive of $10,000 in Service Awards to each of the Named Plaintiffs and
Administration Costs, to the extend they exceed . [See Exhibit “2” annexed to Ambinder
Aff. at ¶¶ 3.3, 3.4]. Class Counsel’s costs and expenses total $13,029.02. As such, Plaintiffs’
requested attorneys’ fees constitutes approximately 33% of the Settlement Fund, which is within
the range typically awarded to class counsel in class-action fee applications.
Defendant does not oppose Plaintiffs’ request, which was agreed upon by the parties. No
Class Member has objected to Plaintiffs’ request. The lack of objections to Class Counsel’s fee
and cost reimbursement request is some indication of the reasonableness of the requested award
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and weighs in favor of approving it. Sewell v. Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL
1320124, at *10 (S.D.N.Y. Apr. 16, 2012); Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d
172, 183 (W.D.N.Y. 2011). For the reasons set forth below, Class Counsel respectfully submit
that the attorneys’ fees and expense reimbursement they seek are fair and reasonable under the
applicable legal standards, and should be awarded in light of the contingency risk undertaken and
the result achieved in this case. Class Counsel also respectfully submit that the service award for
the Named Plaintiffs is proper in recognition of the services rendered on behalf of the class.
A. The Percentage Method is Favored in Common Fund Class Actions
In wage and hour class action lawsuits, public policy favors a common fund attorneys’ fee
award. McDaniel v. County of Schenectady, 595 F.3d 411, 417 (2d Cir. 2010); Wal-Mart Stores,
Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005); Beckman v. KeyBank, N.A., No. 12 Civ.
7836, 2013 WL 1803736, at *8 (S.D.N.Y. Apr. 29, 2013). Where relatively small claims can only
be prosecuted through aggregate litigation, and the law relies on prosecution by “private attorneys
general,” attorneys who fill that role must be adequately compensated for their efforts. Id. at 477
(citations and internal quotation marks omitted); see also Sewell v. Bovis Lend Lease, Inc., No. 09
CIV. 6548 (RLE), 2012 WL 1320124, at *13 (S.D.N.Y. Apr. 16, 2012) (same); Sand v. Greenberg,
Preview
FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK xxxxxxxx xxxx AND STAR RIVERA, on Index No.: 160993/2014 behalf of themselves and others similarly situated, Plaintiffs, -against- HORNBLOWER NEW YORK, LLC; HORNBLOWER CRUISES AND EVENTS; TERRY MACRAE; and any other related entities, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT, FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS, AND FOR AN INCENTIVE AWARD TO THE CLASS REPRESENTATIVES Lloyd R. Ambinder, Esq. Suzanne Leeds Klein, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, New York 10004 (212) 943-9080 (212) 943-9082 -and- Jeffrey Brown, Esq. Michael Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 (516) 873-9550 Attorneys for Plaintiff Class 1 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................................................... iv INTRODUCTION ...........................................................................................................................1 SETTLEMENT PROCEDURE .......................................................................................................1 POINT I: THE SETTLEMENT SHOULD BE APPROVED BY THE COURT ............................................3 A. The Proposed Settlement is Fair, Reasonable, and Adequate ..................................3 1. Likelihood of Success and the Nature of the Issues of Law and Fact ...............4 2. Extent of Support from the Parties.....................................................................4 3. Balance of the Value of the Settlement Against the Value of Anticipated Recovery ............................................................................................................5 4. Judgment of Counsel..........................................................................................6 5. Presence of Good Faith Bargaining ...................................................................7 POINT II: CLASS COUNSEL’S ATTORNEY’S FEES AND COSTS ARE REASONABLE ......................8 A. The Percentage Method is Favored in Common Fund Class Actions ...................9 1. Risk of Litigation ............................................................................................12 2. Magnitude and Complexity of the Litigation...................................................13 3. Whether Counsel had the Benefit of a Prior Judgment....................................14 4. Responsibility Undertaken ...............................................................................14 5. Amount Recovered ..........................................................................................15 6. Case History and Work Done by Counsel .......................................................15 7. Standing at Bar Counsel for Plaintiffs and Defendants ...................................17 8. Reasonableness of Fee in Relation to Settlement ............................................18 ii 2 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 B. A Service Award Should be Awarded to Named Plaintiffs .........................................19 CONCLUSION ..............................................................................................................................22 iii 3 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 TABLE OF AUTHORITIES CASES PAGE Aboud v. Charles Schwab & Co., No. 14 Civ. 2712, 2014 WL 5794655 (S.D.N.Y. Nov. 4, 2014) ..................................................17 Alfaro, et al v. Vardaris Tech, et al., Index No. 109673/05 .....................................................................................................................17 Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41 (E.D.N.Y. 2010) ....................................................................................................18 Arias v. Clear Channel Broadcasting, Inc., Case No. 14-CV-5088(SN) (S.D.N.Y. Feb. 2, 2016) ...................................................................16 Beckman v. KeyBank, N.A., No. 12 Civ. 7836, 2013 WL 1803736 (S.D.N.Y. Apr. 29, 2013) ..............................................9, 16 Behzadi v. Int’l Creative Mgmt. Partners, LLC, No. 14 Civ. 4382 (S.D.N.Y. July 9, 2015) .........................................................................15, 17, 18 Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193 (2003)……………………………………………………………………4, 13, 14, 16 City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974) ..........................................................................................................12 Clem v. Keybank, N.A., No. 13 Civ. 789, 2014 WL 2895918 (S.D.N.Y. June 20, 2014) ...................................................18 Connor v. Pier Sixty, LLC, 918 N.Y.S.2d 396 (Sup. Ct. N.Y. 2010)………………………………………………..4, 13, 14, 16 Cox v. Microsoft Corp., 907 N.Y.S.2d 436 (Sup. Ct. 2007) ......................................................................................9, 14, 15 D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) ............................................................................................................13 Dabrowski v. Abax Inc., 84 A.D.3d 633, 634, 923 N.Y.S.2d 505 (N.Y. App. Div. 2011) ..............................................7, 17 Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d 172 (W.D.N.Y. 2011) ...........................................................................................8 DeLeon v. Wells Fargo Bank, N.A., iv 4 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 No. 12 Civ. 4494 (RLE), 2015 WL 2255394 (S.D.N.Y. May 7, 2015) ..........................................4 Diaz v. Eastern Locating Serv., Inc., No. 10 Civ. 04082, 2010 WL 5507912 (S.D.N.Y. Nov. 29, 2010) ...............................................18 Fernandez v. Hospitality, No, 152298/2014, 2015 N.Y. Misc. LEXIS 2193 (Sup. Ct. June 20, 2015) .................4, 14, 19, 21 Fiala v. Met. Life Ins. Co., Inc., 899 N.Y.S.2d 531 (Sup. Ct. N.Y. County 2010) .......................................................................3, 12 Frank v. Eastman Kodak Co., 228 F.R.D 174 (W.D.N.Y. 2005).........................................................................................7, 19, 20 Garcia v. Exec. Club LLC, No. 10-cv-1545 (SHS), 2012 U.S. Dist. LEXIS 189823 (S.D.N.Y. May 10, 2012) .................7, 17 Gilliam v. Addicts Rehabilitation Center Fund, No. 05 CV 3452 (RLE), 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) ...........................................5 Goldberger v. Integrated Res., 209 F.3d 43 (2d Cir. 2000).......................................................................................................11, 12 Greenfield v. Puig North America, Inc. et al., Index. No. 157654/2015 (N.Y. Co. Sup. Ct. Apr. 7, 2017) ...........................................................16 Guippone v. BH S&B Holdings, LLC, No. 09 Civ. 1029, 2011 WL 5148650 (S.D.N.Y. Oct. 28, 2011) .................................................20 Henry v. Little Mint, Inc., No. 12 Civ. 3996, 2014 WL 2199427 (S.D.N.Y. May 23, 2014) .................................................20 In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000) .............................................................................................13 In re Colt Indus. Shareholder Litig., 155 A.D.2d 154 (N.Y. App. Div. 1st Dep’t 1990) ...........................................................................3 In re Currency Conversion Fee Antitrust Litig., 2009 WL 3415155 (S.D.N.Y. Oct. 22, 2009) ..................................................................................5 In re EVCI Career Colleges Holding Corp. Securities Litigation, No. 05-cv-10240 (CM), 2007 WL 2230177 (S.D.N.Y. July 27, 2007) .........................................11 In re Initial Public Offering Sec. Litig., 671 F.Supp. 2d 467 (S.D.N.Y. 2009)...............................................................................................5 v 5 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 In re NASDAQ Market-Makers Antitrust Litigation, 187 F.R.D. 465 (S.D.N.Y. 1998) ..................................................................................................10 In re Polaroid ERISA Litigation, No. 03 Civ. 8335, 2007 WL 2116398 (S.D.N.Y. July 19, 2007) ...........................................10, 11 In re Ramp Corp. Securities Litigation, No. 05 Civ. 6521, 2008 WL 58938 (S.D.N.Y. Jan. 3, 2008) ..................................................10, 11 In re Sony SXRD Rear Projection Television Class Action Litig., No. 06 Civ. 5173 (RPP), 2008 WL 1956267 (S.D.N.Y. May 1, 2008) ...........................................5 In re Sumitomo Copper Litigation, 74 F. Supp. 2d 393 (S.D.N.Y. 1999) .............................................................................................10 In re Telik, Inc. Sec. Litig., 576 F.Supp. 2d 570 (S.D.N.Y. 2008) ..............................................................................................7 Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000).............................................................................................................3 Karpus v. Borelli (“In re Interpublic Sec. Litig.”), Nos. 02 Civ. 6527, 03 Civ. 1194, 2004 WL 2397190 (S.D.N.Y. Oct. 26, 2004) .........................11 Lasker v. Kanas, No. 0103557/2006, 2007 N.Y. Misc. LEXIS 9269 (Sup. Ct. Sep. 26, 2007) .................................9 Lopez v. Dinex Grp., LLC, 2015 NY Slip Op 31866(U), (Sup. Ct. Oct. 6, 2015) .........................................................9, 13, 17 Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358 (S.D.N.Y. 2002) .............................................................................................4 Masters, v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (S.D.N.Y. 2007) ......................................................................................................18 McDaniel v. County of Schenectady, 595 F.3d 411 (2d Cir. 2010) ......................................................................................................9, 10 McMahon v. Oliver Cheng Catering and Events, LLC., 2010 WL 2399328 .........................................................................................................................16 Mohney v. Shelly’s Prime Steak, No. 06-cv-4270 (PAC), 2009 WL 5851465 (S.D.N.Y. Mar. 31, 2009) .......................................10 Parker v. Jekyll & Hyde Entm’t Holdings, LLC, vi 6 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 No. 08 Civ. 7670, 2010 WL 532960 (S.D.N.Y. Feb. 9, 2010) ...............................................16, 20 Peck v. AT&T Corp., No. 601587/2000, 2002 N.Y. Misc. LEXIS 2026 (Sup. Ct. N.Y. County July 26, 2002)...............3 Reyes v. Altamarea Grp., LLC, No. 10 Civ. 6451, 2011 WL 4599822 (S.D.N.Y. Aug. 16, 2011) ................................................19 Reyes v. Buddha-Bar NYC, No. 08-cv-2494(DF), 2009 WL 5841177 (S.D.N.Y. May 28, 2009) ...........................................10 Ryan v. Volume Servs. Am., No. 65970/2012, 2013 N.Y. Misc. LEXIS 932 (N.Y. Sup.Ct. Mar. 7, 2013) .........................3, 4, 9 Roberts v. Texaco, Inc., 979 F. Supp. 185 (S.D.N.Y. 1997) ...............................................................................................19 Rosenfeld v. Bear Sterns & Co., 237 A.D.2d 199 (N.Y. App. Div. 1st Dep’t 1997) ...........................................................................3 Sand v. Greenberg, No. 08 Civ. 7840, 2010 WL 69359 (S.D.N.Y. Jan. 7, 2010) .......................................................9 Savoie v. Merchants Bank, 166 F.3d 456 (2d Cir. 1999) ..........................................................................................................11 Sewell v. Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124 (S.D.N.Y. Apr. 16, 2012) .........................................8, 9, 19 Smith v. Fendi North America, Inc., Index. No. 151756/2015 (N.Y. Co. Sup. Ct. Oct. 19, 2016)..........................................................16 Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini, 258 F.Supp.2d 254 (S.D.N.Y. 2003) .............................................................................................10 Tart v. Lions Gate Entm't Corp., 2015 U.S. Dist. LEXIS 139266 (S.D.N.Y. Oct. 13, 2015) .......................................................6, 17 Torres v. Gristede's Operating Corp., 519 F. App'x 1 (2d Cir. 2013) .......................................................................................................18 Velez v. Majik Cleaning Serv., Inc., No. 03 Civ. 8698, 2007 WL 7232783 (S.D.N.Y. June 25, 2007) ...........................................10, 11 Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96,119 (2d Cir. 2005) .......................................................................................5, 9, 10, 11 vii 7 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 Willix v. Healthfirst Inc., No. 07 Civ. 1143, 2011 WL 754862 (E.D.N.Y. Feb. 18, 2011) ......................................................9 Witlow v. Burberry Limited, Burberry et al., Index No. 150529/2015 (N.Y. Co. Sup. Ct. Nov. 15, 2016) .........................................................16 Zeltser v. Merrill Lynch & Co., Inc., No. 13 Civ. 1531, 2014 WL 4816134 (S.D.N.Y. Sept. 23, 2014) ................................................17 STATUTES N.Y. CPLR § 908 .............................................................................................................................3 CPLR § 909......................................................................................................................................8 viii 8 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 INTRODUCTION Plaintiffs xxxxxxxx xxxx and Star Rivera, by their counsel Virginia & Ambinder, LLP (“V&A”) and Leeds Brown Law PC (“LBL”) (collectively “Class Counsel”), submit this unopposed memorandum of law in support of their Motion for Final Approval of the Class Action Settlement brought by Plaintiffs individually, and on behalf of other similarly-situated service workers (collectively “Plaintiffs” or “Class Members”), against Defendants Hornblower New York, LLC, and Hornblower Cruises and Events (“Hornblower”) along with any other related corporate entities, and Terry MacRae (Plaintiffs and Defendants are collectively, the “Parties”). The Parties’ settlement resolves all claims before this Court, pursuant to the proposed compromise set forth in the Settlement Agreement and Release (“Settlement Agreement”), and satisfies all criteria for final approval. On January 27, 2017, this Court took the first step in the settlement approval process by granting preliminary approval of the settlement as set forth in the Settlement Agreement, directing that notice be distributed to the Class Members, and setting the date for the final fairness hearing. [See Order Granting Preliminary Approval, Docket No. 138]. The Class Members have been notified of the terms of the settlement, the monetary relief, and their right to opt out of or object to the settlement. For the reasons stated below, it is respectfully submitted that this Court should grant final approval. SETTLEMENT PROCEDURE Pursuant to the Court’s January 27, 2017 Order preliminary approving the settlement, Defendants’ Counsel, Kane Kessler, P.C. and Greenberg Traurig, LLP, provided the Claims Administrator a list containing information for 314 unique Class Members. [See Exhibit 4, Declaration of Jarrod Salinas Regarding Notice and Settlement Administration (“Salinas Dec.”) at 1 9 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 ¶ 5]. The mailing addresses contained in the Class List were processed and updated utilizing the National Change of Address Database (“NCOA”) maintained by the U.S. Postal Service. [Salinas Dec. ¶ 6.] On February 15, 2017, the Court-approved Notice of Proposed Settlement (“Notice”) and the Claim Form and Release (“Claim Form”) (Claim Form and Notice are collectively referred to as the “Notice Packet”) were distributed to 314 Class Members via first-class mail. [Salinas Dec., ¶ 7; A true and accurate copy of the Court-approved Notice Packet is annexed to the Affirmation of Lloyd Ambinder, dated August 4, 2017 (“Ambinder Aff.”) as Exhibit “3”.] Of the 314 Notice Packets distributed by First Class Mail, 14 were returned as undeliverable. [Salinas Dec., ¶ 8.] A skip trace revealed updated addresses for 13 Class Members, which were promptly remailed. [Salinas Dec., ¶ 8]. Ultimately, 1 Class Member’s Notice was undeliverable because Simpluris was unable to locate a current address. [Salinas Dec., ¶ 8]. During the Notice Period, 29 Class Members submitted Claim Forms, in addition to the two Named Plaintiffs, who were automatically deemed Qualified Claimants. [Salinas Dec., ¶ 9]. The 31 total Authorized Claimants comprises 9.87% of the Class. [Salinas Dec. at ¶ 9.] Only one (1) Class Member submitted requests for exclusion from the Settlement, which is only .31% of the Settlement Class. [Salinas Dec., ¶ 10]. No Class Member objected to the settlement. [Salinas Dec., ¶ 11.] Each Authorized Claimant will receive a Settlement Check with their portion of the Net Settlement Amount of $1,475,000.00. [Salinas Dec., ¶ 12.] Payments will be based on the following formula: A percentage of events worked as compared against all events worked by the entire Class. This is calculated by (1) taking the number of events worked by individual Class Member during the period April 1, 2012 to October 31, 2014 (the numerator), and (2) dividing it by the sum of all events worked by all Class Members (the denominator) from April 1, 2012 to October 31, 2014. The denominator for each Class Member will be the same number. As a result of this calculation, the total of 2 10 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 all Class Members’ numerators must equal the denominator and provides for each Class Member’s individual percentage allocation. The $2.3 million Gross Settlement Fund shall be multiplied by the percentage allocation to arrive at the dollar value of the individual allocation. Any Class Member who worked solely after November 1, 2014, and files a claim form shall receive a single lump sum payment of , and any Class Member who worked both before and after November, 2014, and files a claim form shall receive the higher of or his/her Individual Gross Allocation Amount. [See Settlement Agreement, ¶ 3.5]. As of this date, the highest Settlement Share to be paid to Participating Class Members is approximately $81,500.74, and the average Settlement Share to be paid is approximately $6,085.09. [Salinas Dec., ¶ 12]. POINT I: THE SETTLEMENT SHOULD BE APPROVED BY THE COURT CPLR § 908 requires judicial approval for any compromise of claims brought on a class basis: “A class action shall not be dismissed, discontinued, or compromised without the approval of the court.” CPLR § 908; see also Ryan v. Volume Servs. Am., No. 65970/2012, 2013 N.Y. Misc. LEXIS 932, at *1 (N.Y. Sup.Ct. Mar. 7, 2013); Fiala v. Met. Life Ins. Co., Inc., 899 N.Y.S.2d 531, 537 (Sup. Ct. N.Y. County 2010). In determining whether to approve a class action settlement, courts examine “the fairness of the settlement, its adequacy, its reasonableness and the best interests of the Class Members.” Id. at 537 (citing Klein v. Robert’s A. Gourmet Food, Inc., 28 A.D.3d 63, 73 (N.Y. App. Div. 2d Dep’t 2006)); see also Rosenfeld v. Bear Sterns & Co., 237 A.D.2d 199 (N.Y. App. Div. 1st Dep’t 1997); Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). A. The Proposed Settlement is Fair, Reasonable, and Adequate Relevant factors in determining whether a settlement is fair, reasonable, and adequate include “the likelihood of success, the extent of support from the parties, the judgment of counsel, the presence of bargaining in good faith, and the nature of the issues of law and fact.” In re Colt Indus. Shareholder Litig., 155 A.D.2d 154, 160 (N.Y. App. Div. 1st Dep’t 1990) (internal quotation 3 11 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 marks omitted); see also Peck v. AT&T Corp., No. 601587/2000, 2002 N.Y. Misc. LEXIS 2026, at *14 (Sup. Ct. N.Y. County July 26, 2002). A court should also “balance the value of [a proposed] settlement against the present value of the anticipated recovery following a trial on the merits, discounted for the inherent risks of litigation.” Klein, 28 A.D.3d at 73. All of these factors weigh in favor of approving the settlement. 1. Likelihood of Success and the Nature of the Issues of Law and Fact Although Plaintiffs believe their claims have merit, they recognize the legal, factual and procedural obstacles to recovery, as Defendants will continue to vigorously contest Plaintiffs’ claims if this action does not settle. This case hinged on several mixed questions of fact and law with respect to the assessment and distribution of service charges that Plaintiffs allege were purported to be unpaid gratuities, and therefore due and owing to the service employees who comprise the Class. The significant risks of navigating potentially conflicting standards and advancing litigation on behalf of hundreds of Class Members who worked for Defendants at various times and catered affairs and in various functions present significant issues of law and fact. Further, this case addresses the novel legal issue of whether temporary servers are entitled to gratuities under NYLL § 196-d. See e.g. Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193 (2003); Connor v. Pier Sixty, LLC, 918 N.Y.S.2d 396 (Sup. Ct. N.Y. 2010). While Plaintiffs were successful in defeating Defendants’ motion for summary judgment, there is no guarantee that they would have been successful at trial, where all of the evidence, disputed issues and witnesses would be evaluated by a jury. These substantial disputed legal and factual issues support approval of the settlement. 2. Extent of Support from the Parties In evaluating the degree of Class Members’ support for a settlement, courts look to the 4 12 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 proportion of the class that objects to and opts out of the settlement. “It is well-settled that the reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy.” Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 362 (S.D.N.Y. 2002). In addition, “[t]he fact that the vast majority of Class Members neither objected nor opted out is a strong indication of fairness.” DeLeon v. Wells Fargo Bank, N.A., No. 12 Civ. 4494 (RLE), 2015 WL 2255394, at *4 (S.D.N.Y. May 7, 2015) (internal citations and quotation marks omitted). Where relatively few Class Members opt-out or object to the settlement, the lack of opposition supports court approval of the settlement. In re Sony SXRD Rear Projection Television Class Action Litig., No. 06 Civ. 5173 (RPP), 2008 WL 1956267, at *6 (S.D.N.Y. May 1, 2008). Of the 314 Class Members, none have filed an objection and only one Class Member has opted out, representing .31% of the Settlement Class. [Salinas Dec., ¶ 10]. This reaction by the class strongly weighs in favor of settlement. See In re Currency Conversion Fee Antitrust Litig., 2009 WL 3415155, at *12 (S.D.N.Y. Oct. 22, 2009) (where 1% of members opted out or filed objections, the reaction was “extraordinarily positive … and weighs in favor of settlement”); In re Initial Public Offering Sec. Litig., 671 F.Supp. 2d 467, 485 (S.D.N.Y. 2009) (“If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.”) (citations omitted). 3. Balance of the Value of the Settlement Against the Value of Anticipated Recovery A settlement that is within a “range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion” is appropriate. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96,119 (2d Cir. 2005). Here, the settlement amount recognizes the Parties’ “significant dispute” over the proper measure of damages for individual Class Members, recognizes both the strengths and weaknesses 5 13 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 of the Parties’ respective cases, and provides value to the Class Members through a certain and immediate recovery. See In re Currency Conversion Fee Antitrust Litig., 2009 WL 3415155, at *13; Gilliam v. Addicts Rehabilitation Center Fund, No. 05 CV 3452 (RLE), 2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008) (“[S]ettlement assures immediate payment of substantial amounts to Class Members, even if it means sacrificing speculative payment of a hypothetically larger amount years down the road.”) (internal citation omitted). Class Counsel has spent a great deal of time and effort analyzing and evaluating the merits of the claims made against Defendant in this litigation and the impact of the Settlement Agreement on Plaintiff and the Class Members. [Ambinder Aff. at ¶¶ 4-9.] Specifically, Class Counsel has considered a myriad of factors, including the substantial risks of continued litigation and the possibility that the case, if not settled now, might not result in any recovery or might result in a recovery several years from now that is less favorable to Plaintiff and the Class Members than the recovery outlined in the Settlement Agreement. Id. Moreover, the distribution to each member of the Class is a significant and reasonable sum when one considers that the minimum wage over the relevant time ranges from $7.15 to $9.50 per hour and Class Members worked varying lengths of time each week, month or season. Moreover, there is always a risk that Defendants could win at trial on the merits, which could result in a zero-dollar trial verdict. This settlement amount will ensure that Claimants receive a fair sum in resolution of their claims. In light of such considerations, Class Counsel is satisfied that the terms and conditions of the settlement are fair, reasonable and adequate and that the settlement is in the best interests of Plaintiff and Class Members. 4. Judgment of Counsel Class Counsel also has substantial experience prosecuting large-scale wage and hour class 6 14 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 and collective actions. Numerous courts have commented on Class Counsel’s experience as employment litigators and efficient representation. See e.g. Tart v. Lions Gate Entm't Corp., 2015 U.S. Dist. LEXIS 139266 at *7 (S.D.N.Y. Oct. 13, 2015) (“Virginia & Ambinder, LLP and Leeds Brown Law, P.C. are experienced and well-qualified employment and class action lawyers with expertise in prosecuting and settling labor law cases.”); Garcia v. Exec. Club LLC, No. 10-cv-1545 (SHS), 2012 U.S. Dist. LEXIS 189823 (S.D.N.Y. May 10, 2012) (“Class Counsel [V&A and LBL] have experience prosecuting and settling employment class actions, including wage and hour class actions and are well-versed in wage and hour law and in class action law.”); Dabrowski v. Abax Inc., 84 A.D.3d 633, 634, 923 N.Y.S.2d 505 (N.Y. App. Div. 2011) (observing that V&A “has demonstrated its expertise and zealous representation of the plaintiffs here, as well as in prior class action cases which have reached this court on appeal”). Here, Plaintiffs’ Counsel investigated and researched the underlying merits of the potential class claims, and the proper measure of damages. They also researched Defendant’s likely affirmative defenses. Additionally, in considering the possibility of settlement, Class Counsel accounted for the time, delay, and costs of trial and appeal. [Ambinder Aff., ¶ 4]. In light of the strengths and weaknesses of the case, Class Counsel believes that the settlement easily falls within the range of reasonableness because it achieves a significant benefit for the Class. Id. 5. Presence of Good Faith Bargaining “A ‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery.’” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 184 (W.D.N.Y. 2005) (quoting Wal- Mart Stores Inc., 396 F.3d at 116). See also In re Telik, Inc. Sec. Litig., 576 F.Supp. 2d 570, 576- 577 (S.D.N.Y. 2008) (“[A] strong presumption of fairness attaches to a class action settlement 7 15 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 reached in arm’s-length negotiations among able counsel.”). Further, “great weight is accorded to the recommendations of counsel, who are most closely acquainted with the facts of the underlying litigation.” Id. (internal citation omitted). As discussed above and in the Parties’ Motion for Preliminary Approval, the Agreement was reached after extensive arms-length negotiations involving competent and experienced counsel for the Parties. [See Ambinder Aff. ¶ 4-9.] Plaintiffs’ attorneys are well-versed in prosecuting and litigating class action wage and hour suits like this one. [Ambinder Aff. ¶¶ 27- 31.] Similarly, Defendant’s counsel has extensive experience in defending wage and hour class actions. Further, the settlement was reached after the parties conducted extensive pre-class certification discovery, including depositions of all the parties and a voluminous review of documents. Here, counsel for both Parties endorse the settlement as fair, adequate, and reasonable. For these reasons, the process leading to the Agreement was fair and reasonable. POINT II: CLASS COUNSEL’S ATTORNEY’S FEES AND COSTS ARE REASONABLE CPLR § 909 permits an award of attorneys’ fees to class counsel. The settlement, which has been preliminarily approved by the Court, provides for attorneys’ fees and costs in the amount of $800,000, which is inclusive of $10,000 in Service Awards to each of the Named Plaintiffs and Administration Costs, to the extend they exceed . [See Exhibit “2” annexed to Ambinder Aff. at ¶¶ 3.3, 3.4]. Class Counsel’s costs and expenses total $13,029.02. As such, Plaintiffs’ requested attorneys’ fees constitutes approximately 33% of the Settlement Fund, which is within the range typically awarded to class counsel in class-action fee applications. Defendant does not oppose Plaintiffs’ request, which was agreed upon by the parties. No Class Member has objected to Plaintiffs’ request. The lack of objections to Class Counsel’s fee and cost reimbursement request is some indication of the reasonableness of the requested award 8 16 of 30 FILED: NEW YORK COUNTY CLERK 08/04/2017 12:45 PM INDEX NO. 160993/2014 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 08/04/2017 and weighs in favor of approving it. Sewell v. Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124, at *10 (S.D.N.Y. Apr. 16, 2012); Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d 172, 183 (W.D.N.Y. 2011). For the reasons set forth below, Class Counsel respectfully submit that the attorneys’ fees and expense reimbursement they seek are fair and reasonable under the applicable legal standards, and should be awarded in light of the contingency risk undertaken and the result achieved in this case. Class Counsel also respectfully submit that the service award for the Named Plaintiffs is proper in recognition of the services rendered on behalf of the class. A. The Percentage Method is Favored in Common Fund Class Actions In wage and hour class action lawsuits, public policy favors a common fund attorneys’ fee award. McDaniel v. County of Schenectady, 595 F.3d 411, 417 (2d Cir. 2010); Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005); Beckman v. KeyBank, N.A., No. 12 Civ. 7836, 2013 WL 1803736, at *8 (S.D.N.Y. Apr. 29, 2013). Where relatively small claims can only be prosecuted through aggregate litigation, and the law relies on prosecution by “private attorneys general,” attorneys who fill that role must be adequately compensated for their efforts. Id. at 477 (citations and internal quotation marks omitted); see also Sewell v. Bovis Lend Lease, Inc., No. 09 CIV. 6548 (RLE), 2012 WL 1320124, at *13 (S.D.N.Y. Apr. 16, 2012) (same); Sand v. Greenberg,