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SPDN-868764429-2783532

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-22617-RNS

HANNY APONTE,

Plaintiff,

vs.

AMERICAN SALES MANAGEMENT

ORGANIZATION, LLC and FRANCISCO

JAVIER AGUSTIN RABELL TORELLO,

Defendants.

/

JOINT MOTION FOR IN CAMERA INSPECTION AND APPROVAL OF

SETTLEMENT AGREEMENT AND STIPULATION OF DISMISSAL WITH 

PREJUDICE

Plaintiff, HANNY APONTE, and Defendants, AMERICAN SALES MANAGEMENT

ORGANIZATION, LLC and FRANCISCO JAVIER AGUSTIN RABELL TORELLO

(collectively, the “Parties”), by and through their undersigned counsel, hereby file this Joint 

Motion for In Camera Inspection and Approval of Parties’ Confidential Settlement Agreement and 

Stipulation of Dismissal with Prejudice, stating as follows:

1. Plaintiff initiated this action on May 20, 2020, seeking unpaid overtime wages 

under the Fair Labor Standards Act ("FLSA").

2. A bona fide dispute existed between the Parties, as Plaintiff claimed an entitlement 

to unpaid overtime wages and Defendant maintained that Plaintiff was exempt from the FLSA’s 

overtime provision. 

3. The Parties have engaged in settlement negotiations and, in order to avoid further 

costs and fees have reached an agreement, which has resulted in a Settlement Agreement (provided 

separately).

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4. In accordance with the Eleventh Circuit precedent Lynn Food Stores, Inc. v. U.S.

Department of Labor, 679 F. 2d 1350, 1353 (11th Cir. 1982), and the Local Rules of this Court, 

the Parties request that the Court approve their Agreement.

5. In support of this Motion, the Parties stipulate that: (a) the settlement of this matter 

is fair and reasonable; (b) the attorneys’ fees to be paid by Defendant to resolve Plaintiff's claim 

for fees under the FLSA are fair and reasonable; and (c) there was no undue influence,

overreaching, collusion, or intimidation in reaching the settlement.

MEMORANDUM OF LAW

Pursuant to the law of this Circuit, judicial review and approval of this tentative settlement 

provides final and binding effect to an agreement to settle a compromise of a claim under the 

FLSA. See generally Lynn Food Stores, Inc. v. US. Dep’t of Labor, 679 F. 2d 1350 (11th Cir. 

1982). As the Eleventh Circuit held in Lynn Food Stores,

There are only two ways in which back wage claims arising under 

the FLSA can be settled or compromised by employees. First, under

section 216(c), the Secretary of Labor is authorized to supervise

payment to employees of unpaid wages owed to them. . . . The only

other route for compromise of FLSA claims is provided in the 

context of suits brought directly by employees against their 

employer under section 216(b) to recover back wages for FLSA 

violations. When employees bring a private action for back wages 

under the FLSA, and present to the district court a proposed 

settlement, the district court may enter a stipulated judgment after 

scrutinizing the settlement for fairness.

Id at 1352-53.

Before approving an FLSA settlement, the court must ensure that it is “a fair and reasonable 

resolution of a bona fide dispute.” Id. at 1354-55. If the settlement reflects a reasonable 

compromise over issues that are actually in dispute, the court may approve the settlement “in order 

to promote the policy of encouraging settlement of litigation.” Id. at 1354. In determining whether 

the Parties’ Settlement Agreement is fair and reasonable, the Court should consider the following 

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factors: (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, 

and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery 

completed; (4) the probability of plaintiff’s success on the merits; (5) the range of possible 

discovery; and (6) the opinions of counsel. See Leverso v. S. Trust Bank of Ala., Nat. Assoc., 18 F. 

3d 1527, 1531 n.6 (11th Cir. 1994); Hamilton v. Frito-Lay, Inc., No. 6:05-cv-592-Orl-22JGG, 

2007 U.S. Dist. LEXIS 10287, at *2-3 (M.D. Fla. Jan. 8, 2007). There is a strong presumption in 

favor of finding a settlement fair. Hamilton, 2007 U.S. Dist. LEXIS at *2-3.

Here, the Parties jointly submit there has been sufficient investigation and exchange of

documents and information to allow counsel for Plaintiff and Defendants to evaluate the Parties’ 

claims and defenses and to make recommendations to each party in agreeing upon the resolution 

of Plaintiff’s claims as set forth in their Settlement Agreement. After exchanging information and

engaging in settlement negotiations, and in order to avoid the uncertainties of and costs of 

dispositive motions and trial, a compromise has been agreed upon with Plaintiff receiving a sum 

acceptable to him in light of the potential hurdles in proving whether he is not exempt from the 

FLSA’s overtime provision. 

Plaintiff has been advised by counsel that if he proceeds in this matter, he may prove all of 

the damages, or a jury may choose to credit the Defendants’ position, and that he may not receive 

any recovery. In light of these hurdles and uncertainty, as well as the possibility of protracted 

litigation, Plaintiff agrees that the amount he is receiving in this settlement for his wage claims 

constitutes a reasonable and informed compromise of those claims. Plaintiff also agrees that the 

separate amount he is receiving for confidentiality and the general release is sufficient 

consideration. Because the Settlement Agreement contains a confidentiality provision, the Parties 

request permission to deliver the settlement agreement to the Court for an in camera review.

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The Parties stipulate that their Agreement is fair and reasonable. Further the attorneys’ fees 

and costs are not a percentage of Plaintiff’s recovery in this case, such that there is no correlation 

between the amount of monetary consideration being paid to Plaintiff and the amount of attorneys’

fees and costs being paid by Defendant on Plaintiff’s behalf. See 29 U.S.C. §216(b); Kreager v. 

Solomon & Flanagan, P.A., 775 F. 2d 1541, 1542 (11th Cir. 1985). Rather, Plaintiff's attorneys’

fees and costs were claimed by Plaintiff and his counsel separate and apart from the amounts 

sought by Plaintiff for his underlying claims. Thus, judicial scrutiny of the attorney’s fees is not 

required, unless the Court finds the fees are unreasonable on their face. See Bonetti v. Embarq 

Mgmt. Co., 2009 WL 2371407, *5 (M.D. Fla. Aug. 4, 2009) (noting that if plaintiff’s recovery and 

attorney’s fees are addressed independently, “there is no reason to assume that the lawyer’s fee 

has influence the reasonableness of the plaintiff’s settlement”).

The compromise agreed upon by the Parties resolves all of Plaintiff's claims for attorneys’ 

fees, and Plaintiff has no responsibility to his counsel for any out of pocket sums. Importantly,

throughout the entirety of the litigation in this case, Plaintiff and Defendants have been represented 

by competent counsel with experience in labor and employment law. The Parties further advise 

the Court that their Settlement Agreement includes every term and condition of the Parties’

settlement.

WHEREFORE, the Parties respectfully request that the Court approve the Parties’

Settlement Agreement and dismiss this litigation with prejudice, with each party to bear its own

fees and costs except as set forth in the Settlement Agreement.

Dated: December 1, 2020 Respectfully submitted,

/s/ Jason S. Remer /s/Suhaill M. Morales

Jason S. Remer Suhaill M. Morales

Florida Bar No. 165580 Florida Bar No. 084448

jremer@rgpattorneys.com smorales@anblaw.com

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Remer &Georges-Pierre, PLLC Steven Reardon

44 West Flagler Street, Suite 2200 Florida Bar No. 1003515

Miami, FL 33130 sreardon@anblaw.com

Telephone: (305) 416-5000 Allen, Norton & Blue, P.A.

Facsimile: (305) 416-5005 121 Majorca Avenue, Suite 300

Counsel for Plaintiff Coral Gables, FL 33134

Tel: (305) 445-7801

Fax: (305) 442-1578

Counsel for Defendants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 1, 2020, I electronically filed the foregoing 

document with the CM/ECF Filing System which will also serve the foregoing document on all 

counsel of record identified on the Service List below in the manner specified, either via email or 

in some other authorized manner for those counsel or parties who are not authorized to receive 

electronic mailing.

Jason S. Remer, Esq.

Florida Bar No.: 165580

jremer@rgpattorneys.com

Remer & Georges-Pierre, PLLC

44 West Flagler Street, Suite 2200

Miami, FL 33130

Telephone: (305) 416-5000

Facsimile: (305) 416-5005

Counsel for Plaintiff

/s/Suhaill M. Morales

Attorney

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