### Griffin v Gregorys Coffee Mgt. LLC 2024 NY Slip Op 31904(U) June 3, 2024 Supreme Court, New York County Docket Number: Index No. 153397-2018 Judge: SuzanneAdams Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.[FILED: NEW YORK COUNTY CLERK 06/03/2024 04:41 PM] INDEX NO. 153397/2018 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/03/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 

### ---------------------------------------------------------------------x NICOLE GRIFFIN, onbehalfofherself and all others similarly situated, Motion Sequence No. 9 Plaintiffs,-againstGREGORYS COFFEE MANAGEMENT LLC, f/k/a GREGORYS COFFEE MANAGEMENT INC., f/k/a GREGORYS COFFEE INC., d/b/a GREGORYS COFFEE, and GREGORY ZAMFOTIS, individually, Defendants. 

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FINAL JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SERVICE AWARD TO NAMED PLAINTIFF, AND AWARD OF CLASS COUNSEL'SATTORNEYS' FEES AND COSTS The above-entitled matter came before the Court on Plaintiffs' Motion for Final Approval ofClass Action Settlement, Service Award to Plaintiff, and Award ofClass Counsel's Attorneys' Fees and Costs ("Motion for Final Approval"). Plaintifffiled the present Class Action Complaint in New York County Supreme Court on April 13, 2018. The Complaint alleged that Defendant violated the New York Labor Law ("NYLL") and its supporting New York State Department of Labor Regulations ("NYCRR") during the Class Period because Defendants Gregorys Coffee Management, LLC and Gregory Zamfotis (together, "Defendant") allegedly failed to provide maintenance pay for required uniforms, failed to pay Spread ofHours pay for shifts over 10 hours, and failed to compensate employees for breaks under 20 minutes in length. A Joint Settlement Agreement and Release ("Settlement Agreement") was executed by all parties to resolve this matter for up to $450,000. On October 6, 2023, Plaintiff filed a motion for Preliminary Approval of the Settlement 1

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Agreement, Certification ofthe Class for Settlement Purposes, Appointment ofPlaintiffas Class Representative, Appointment of the Law Firm of Bouklas Gaylord LLP as Class Counsel, Approval of the Class Notice, and Scheduling a Fairness Hearing, with an accompanying MemorandumofLawand supportingexhibits. On October 16, 2024,the Courtgrantedpreliminary approval ofthe Settlement Agreement, certifiedthe Settlement Class, appointed Plaintiffas Class Representative, appointedBouklas GaylordLLP as Class Counsel, approvedthe ClassNotice, and scheduled a date for the Fairness Hearing. On January 26, 2024, the Claims Administrator mailed the Class Notice to all Class Members. Subsequently, Plaintifffiled a Motion for Final Approval ofClass Action Settlement, Service Award to Plaintiff, and Award ofClass Counsel's Attorneys' Fees and Costs. Defendant did not oppose this motion. The Court held a Fairness Hearing on June 3, 2024. Class Counsel received no objections and one opt-out. Having considered the Motion for Final Approval ofthe Class Action Settlement, Service Award to Named Plaintiff, and Award ofClass Counsel's Attorneys' Fees and Costs, and the supporting Affirmation of Mark Gaylord, Esq., the oral argument presented at the Fairness Hearing, and the complete record in this matter, for the reasons set forth at the Fairness Hearing, and for good cause shown; NOW, THEREFORE, IT IS HEREBY ORDERED,ADJUDGED AND DECREED: Certification ofThe Settlement Class 1. The Court certifies the following under Article 9 ofthe New York Civil Practice Law and Rules ("CPLR") for settlement purposes only ("Settlement Class"): Named Plaintiff and all non-exempt employees employed by Defendant in the State ofNew York from April 14, 2012 through 2

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August 1, 2023, who do notopt-outofthe Actionin accordancewith the procedures set forth below. Approval ofthe Settlement Agreement 2. The Court hereby grants the Motion for Final Approval of the Class Action Settlement, Service Award to Named Plaintiff, and Award ofClass Counsel Attorneys' Fees and Costs and finally approves the settlement as set forth in the Settlement Agreement of up to $450,000. 3. CPLR § 908 requiresjudicial approval for any compromise ofclaims brought on a class basis. 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." Fiala v. Met Life Insurance Co., Inc., 899 N.Y.S.2d 531, 537 (NY Sup. Ct. 2010) (citations omitted). Relevant factors in determining whether a settlement is fair, reasonable, and adequate include "the likelihood ofsuccess, the extent ofsupport from the parties, thejudgment ofcounsel, the presence ofbargaining in good faith, and the nature ofthe issues oflaw and fact." In re ColtIndus. Shareholder Litig., 155 A.D.2d 154, 160 (1st Dep't 1990) (citations omitted). A court should also "balance the value of [a proposed] settlement against the present value ofthe anticipated recovery following a trial on the merits, discounting the inherent risks oflitigation." Fiala at 538 (citation omitted). All ofthese factors weigh in favor ofapproving the settlement. 4. The claims in this case are for unpaid wages in the form ofuniform maintenance pay pursuant to 12 N.Y.C.R.R. 146, unpaid Spread ofHours, and unpaid shifts under 20 minutes in length. The Court finds thatthese claims are appropriate for class adjudication. In reaching the settlement, Class Counsel took into account the risks ofestablishing liability, and also considered the time, delay, and financial repercussions in the event oftrial and appeal by Defendant. The settlementnegotiations were at all times hard fought and arm'slength, betweenpartiesrepresented 3

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by counsel experienced inwage and hour law, and they have produced a resultthat Class Counsel believesto be in the best interests ofthe Class in light ofthe costs andrisks ofcontinued litigation. Wal-Mart Stores, Inc. v. Visa US.A., Inc., 396 F.3d 96, 116 (2nd Cir. 2005) (internal quotation omitted). Additionally, Defendant has and will continue to vigorously contest Plaintiffs claims if this action does not settle. In light ofthe strength and weakness ofthe case, the settlement easily falls within the range ofreasonableness because it achieves a significant benefit for Plaintiffand the Settlement Class Members in the face ofsignificant obstacles. While there is a possibility that the Class could recover more money, including interest, after trial, the Settlement provides the significantbenefit ofaguaranteed and substantialpayoutto SettlementClassMembers, ratherthan "speculative payment ofhypothetically larger amount years down the road." Gilliam v. Addicts Rehab. Ctr. Fund, 2008 WL 782596, at *5 (S.D.N.Y. 2008) (quoting Teachers' Ret. Sys. Of Louisiana v. A.C.L.N. Ltd., 2004 WL 108726, at *5 (S.D.N.Y. 2004)). Service Award to the Class Representatives 5. The Court finds reasonable the service award of $15,000 to class representative, Nicole Griffin, giventhe contributions she made to advance the prosecution and resolution ofthe lawsuit. This award shall be paid from the settlement fund. 6. A Courtmay grant service awards in aclass action. Suchawards "rewardthe named plaintiffs for the effort and inconvenience ofconsulting with counsel overthe many years [a] case
was active and for participating in discovery
...." Cox v. Microsoft Corp., 26 Misc.3d 1220(A), 4 (N.Y. Supp. 2007). Service awards "are particularly appropriate in the employment context. .. [where] the plaintiffis often a former or currentemployee ofthe defendant, andthus
... he has, for the benefit ofthe class as a whole, undertaken the risks of adverse actions by employer or coworkers." Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005).

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7. Plaintiffexpended considerable time and effort to assist Class Counsel with the
case. As such, her actions exemplify the very reason service fees are awarded. See Frank at 187 (recognizing the important role that plaintiffs play as the "primary source of information concerning the claim," including by responding to counsel's questions and reviewing documents). 8. Plaintiffalso assumed risks in prosecuting this action. Even where there is not a record of actual retaliation, service fees are appropriate in recognition ofthe risk ofretaliation assumed by lead plaintifffor the benefit ofabsent class members. Frank at 187-188 ("Although this Court has no reason to believe that Kodak has or will take retaliatory action towards either Frank or any ofthe plaintiffs in this case, the fear ofadverse consequences or lost opportunities cannotbe dismissed as insincere or unfounded."). 9. The service award totaling $15,000 for Plaintiff is reasonable for the services Plaintiffprovided, and is well withinthe range awarded by courts in similarmatters. See Capsolas
v. Pasta Resources Inc., 2012 WL 4760910, at *9 (S.D.N.Y. 2012) (approving service awards of $20,000 and $10,000 for class representatives in wage and hour action); Lovaglio v. W & E Hospitality Inc., 2012 WL 2775019, at *4 (S.D.N.Y. 2012) (approving service awards of$10,000 eachto three classrepresentatives inwage andhour action); Sewellv. BovisLendLease, Inc., 2012 WL 1320124, at *13 (S.D.N.Y. 2012) (approving service awards of$15,000 and $10,000 for the class representatives); Matheson v. T-Bone Restaurant, LLC, 2011 WL 6268216, at *9 (S.D.N.Y. 2011) (approving service awards of$45,000 and $5,000 for the class representatives in awage and hour class action); Willix v. Healthfirst, Inc., 2011 WL 754862, at *7 (E.D.N.Y. 2011) (approving service awards of$30,000, $15,000, and $7,500 in a wage and hour class action.) Award ofFees and Costs to Class Counsel 10. On September 8, 2022, the CourtappointedBouklas GaylordLLP as Class Counsel

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because they did substantial work identifying, investigating, litigating, and settling Plaintiffs and the Settlement Class Members' claims, have experience prosecuting and settling wage and hour actions, and are well-versed in wage and hour law and in class action law. 11. The work that Class Counsel has performed in litigating and settling this case demonstratestheircommitmentto the class andto representing the bestinterests ofthe class. Class counsel has committed substantial resources to prosecuting this case. 12. The Court hereby grants Class Counsel's request for attorneys' fees and cost and awards Class counsel $156,363.70, which is 33% of the settlement fund, plus fees and costs actually expended of$6,363.70. 13. The CPLRauthorizes a courtto grant attorneys' fees to class counsel who obtain a judgmentonbehalfofthe class: "Ifajudgmentin an actionmaintainedas aclass actionis rendered in favor ofthe class, the court in its discretion may award attorneys' fees to the representative of the class based on the reasonable value oflegal services rendered
...." CPLR § 909. 14. A court may calculate reasonable attorneys' fees by either the lodestar method (multiplyingthe hours reasonably billed by an reasonable hourly rate) orbased on apercentage of the recovery. Fiala v. Met Life Ins. Co., Inc., 899 N.Y.S.2d 531, 540. Where a settlement establishes a common fund, the percentage method is often preferable because "the lodestar method has the potential to lead to inefficiency and resistance to expeditious settlementbecause it gives attorneys and incentive to raisetheirfees by billing more hours." Cox v. Microsoft Corp., 26 Misc.3d 1220(A), 4 (N.Y. Sup. 2007). 15. Public policy favors a common fund attorneys' fees award in wage and hour class actions. See Johnson v. Brennan, 2011 WL 4357376, 19 (S.D.N.Y. 2011) ("Ifnot, wage and hour abuses would go without remedy because attorneys would be unwilling to take on the risk."); see
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also Sand v. Greenberg, 2010 WL 69359, 3 (S.D.N.Y 2010) ("But for the separate provision of legal fees, many violations of the Fair Labor Standards Act would be continue unabated and uncorrected."). 16. "Common fund recoveries are contingent on a successful litigation outcome." Guaman v. Anja-BarNYC, 2013 WL 445896, 7 (S.D.N.Y. 2013). Such "contingency fees provide
access to counsel for individuals who would otherwise have difficulty obtaining to representation
... and transfer a significantportion ofthe risk ofloss to the attorneys taking a case. Access to the courts would be difficult to achieve without compensating attorneys for that risk." deMunecas v. Bold FoodLLC, 2010 WL 3322580, 8 (S.D.N.Y. 2010) (internal quotation marks and citations omitted). Many individual litigants, "cannot afford to retain counsel at fixed hourly rates... yet they are willing to pay a portion of any recovery they may receive in return for successful representation." Id. (citation omitted). 17. Regardless of the method used to determine reasonable attorneys' fees, a court should considerthe following factors: "therisks ofthe litigation, whether counsel had the benefit ofapriorjudgment, standing at bar ofcounsel for the plaintiffs and defendants, the magnitude and complexity ofthe litigation, responsibility undertaken, the amount recovered, the knowledge the court has ofthe case's history and the work done by counsel prior to trial, and what it would be reasonable for counsel to charge a victorious plaintiff." Fiala vMet Life Insurance Co., Inc., 899 N.Y.S.2d 531,540 (N.Y. Sup. 2010). All ofthese factors weighin favor ofapprovingtherequested fee. 18. Class Counsel's request for the 33% ofthe settlement fund is consistent with that awarded in these types ofcases. The fee requested is also reasonable based on the fact that Class Counsel did substantial work on a fully contingent basis.

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19. The fact that Class Counsel's fee award will not only compensate them for time andeffortalready expended,butfortimethatwillberequiredto spendadministeringthe settlement going forward also supports their fee request. 20. The attorneys' fees, costs, and expenses shall be paid from the settlement fund. Settlement Procedure 21. Within seven (7) days ofthe Effective Date, the Settlement Claims Administrator shall pay Class Counsel attorneys' fees and costs of$156,363.70 from the Settlement Fund. 22. Within seven (7) days ofthe Effective Date, the Settlement Claims Administrator shall pay the service award of$15,000 to Named PlaintiffNicole Griffin. 23. Within seven (7) days ofthe Effective Date, the Settlement Claims Administrator shall pay claims administration fees of$16,492 to Analytics Consulting, Inc. 24. Within seven (7) days ofthe Effective Date, the Settlement Claims Administrator shallpaythe remainder ofthe SettlementFund (after subtractingthe attorneys' fees and expenses, claims administration fees, employer-taxes, and service award) to Qualified Class Members in accordance with the allocation plan described inthe Settlement Agreement. 25. The "Effective Date" means the date that all ofthe following have occurred: (A) the Courthas enteredthe Final Approval Order, including statedprovisions for the ward ofservice payments, and for attorneys' fees and reasonable costs, and (B) thejudgment and the rulings on such motion has become Final. "Final" means the later of: (1) The governing time periods for seeking rehearing, reconsideration, appellate review and/or an extension of time for seeking appellate review have expired and there have been no such actions; or (2) If rehearing, reconsideration, appellate review, and/or an extension of time for seeking appellate review is sought, thirty (30) days after any and all avenues ofrehearing, reconsideration, appellate review
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and/or extension oftime have been exhausted and no further rehearing, reconsideration, appellate review, and/or extension oftime is permitted, and the time for seeking such things has expired, and thejudgment has not been modified, amended, or reversed in any way.. 26
. The Court retains jurisdiction over this action for the purpose of enforcing the SettlementAgreement and overseeing the distribution ofsettlement funds. The parties shall abide by all terms ofthe SettlementAgreement, which are incorporated herein, and this Order. 27. This litigation shall be dismissed in its entirety with prejudice and all members of the Settlement Class who have not excluded themselves from the settlement shall be conclusively deemedto have released and discharged Defendantfrom, and shall be permanently enjoined from, directly or indirectly,pursuing and/or seekingto reopen, any and all claims thathave beenreleased pursuant to this settlement.
It is so ORDERED 

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