Vann v. Persico

Background

Roosevelt Vann Jr. filed this action in January 2020 and later filed a Second Amended Complaint. The complaint asserted claims under the Fair Labor Standards Act (FLSA) and New York Labor Law for unpaid regular and overtime wages and allegedly missing wage notices. It also asserted race-discrimination and retaliation claims under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New York Human Rights Law. In addition, Vann brought a third-party-beneficiary claim concerning prevailing wages and certain contracts involving non-parties.

The parties submitted a proposed settlement for court approval. In this federal circuit, parties cannot privately settle FLSA claims through a dismissal with prejudice without approval from the court or the Labor Department. The court therefore reviewed whether the proposed agreement was fair and reasonable.

Settlement Terms and Analysis

The agreement provides a total payment of $399,000. Vann is to receive $254,987.44, while his counsel is to receive $144,012.56 in attorney fees and costs. The counsel portion includes $127,493.71 in fees and $16,518.85 in costs.

The court applied the factors used to review FLSA settlements. It found that the agreement provided a reasonable portion of Vann’s potential wage recovery. Vann’s maximum potential recovery for unpaid wages, overtime, and liquidated damages during the relevant FLSA period was estimated at $264,000, with a possible additional $5,000 for the wage-notice claim. The agreement also resolved Vann’s discrimination, retaliation, and prevailing-wage claims, although the settlement materials did not separately estimate the potential trial value of those claims.

The court found that settlement would avoid additional discovery, expert expenses, depositions, summary-judgment motions, and a potentially lengthy multi-party trial. The parties faced disputed factual and legal issues, including the amount of wages owed, the reasons for Vann’s layoff, the discrimination and harassment allegations, mitigation of damages, whether Riggs Distler could be liable as a successor to PCT Contracting, and whether Vann performed prevailing-wage work. The court also considered collection concerns involving PCT Contracting and Richard Persico. Under the settlement, Persico Realty Corporation would act as a surety for Persico and PCT Contracting and would be jointly and severally liable for PCT Contracting’s share of the settlement payment.

The court found that the settlement resulted from arm’s-length negotiations after multiple settlement conferences involving a mediator and Magistrate Judge Victoria Reznik. It found no reason to suspect fraud or collusion. The court also found no settlement features that prevented approval: the agreement had no confidentiality provision, its non-disparagement clause allowed Vann to make truthful statements about his experience litigating the case, and its mutual general releases were acceptable in light of the parties’ negotiations and Vann’s ended employment relationship.

Attorney Fees and Costs

The court approved the attorney-fee request. Counsel documented 803.4 hours of work, including work by attorneys Robert Wisniewski, Barbara Luberadzka, and Richard Fujimoto. The requested fee was approximately 29.4 percent of the calculated lodestar amount—the total produced by multiplying documented hours by hourly rates—which the court found fair and reasonable. The court also approved $16,518.85 in costs because counsel supported them with invoices, receipts, and a declaration and because the expenses were the type commonly reimbursed in the district.

Disposition

The court found the proposed settlement fair and reasonable and approved the agreement filed at ECF No. 254. It stated that it would separately sign and docket the proposed stipulation of dismissal with prejudice. That stipulation provides that the court will retain jurisdiction to interpret and enforce the settlement and, if necessary, enter judgment based on an affidavit for confession of judgment. The clerk was directed to close the case.

Judge Andrew E. Krause’s order approved the settlement; it did not decide whether Vann or the defendants would have prevailed on the underlying claims at trial.