Andreyuk v. ASF Construction & Excavation Corp.

Background

Anatoliy Andreyuk and Jose Felippelli sued ASF Construction & Excavation Corp. and Andre Fernandez under the Fair Labor Standards Act (FLSA) and New York Labor Law. The claims alleged failure to pay overtime and minimum wages, failure to pay wages weekly, and failure to provide wage notices and wage statements. After Jose Felippelli died, Jenny Felippelli was substituted as plaintiff in her capacity as executor of his estate.

The parties submitted a proposed settlement for court approval. In the Second Circuit, FLSA claims generally cannot be privately settled through a stipulated dismissal without approval from the court or the Department of Labor. The proposed settlement called for a total payment of $72,500: $10,000 to Jenny Felippelli, $38,333.33 to Anatoliy Andreyuk, and $24,166.67 to plaintiffs’ counsel for attorneys’ fees and costs.

Court’s analysis

The court applied the factors used to evaluate whether an FLSA settlement is fair and reasonable. It considered the plaintiffs’ possible trial recoveries, the costs and burdens of continuing the case, litigation risks, the parties’ arm’s-length negotiations through experienced counsel, and the absence of fraud or collusion.

The court recognized that the settlement amounts were substantially lower than the plaintiffs’ stated maximum possible recoveries. It nevertheless found the amounts reasonable because the case was settled on the eve of trial after extensive litigation, and the plaintiffs faced significant evidentiary and legal risks. Those risks included the death of Jose Felippelli before he gave deposition testimony, difficulties proving his hours and unpaid wages, defendants’ contention that they had paid him cash, and defendants’ defense that Andreyuk was exempt from federal and state overtime and minimum-wage requirements.

The court also found no settlement-related concerns involving similarly situated employees, recurring conduct, or the need for a more developed record to clarify the law. It found that the release was limited to the wage-and-hour claims asserted or that could have been asserted in the action, and noted that the agreement contained no confidentiality or non-disparagement provisions.

The proposed attorneys’ fee of $22,039.02 was found reasonable. The court calculated a lodestar—a benchmark based on counsel’s documented hours and hourly rates—of $45,449.00. The proposed fee was approximately 49 percent of that amount. The court did not approve the requested reimbursement of $1,727.65 in expenses beyond the documented $400 filing fee, because counsel had provided no invoices, receipts, or sworn declaration supporting the other expenses.

Ruling

Judge Andrew E. Krause found the proposed settlement fair and reasonable. He ruled that the only provision that could not yet be approved was Paragraph 2.c’s provision concerning litigation expenses. The court required plaintiffs’ counsel to file documentation supporting those expenses, either invoices or receipts or a sworn statement or declaration under penalty of perjury, by June 21, 2023. The court agreed to retain jurisdiction over the matter until all settlement payments were completed.