Hong v. Benihana Inc. et al, No. 1:2008cv11155 - Document 24 (S.D.N.Y. 2009)
Court Description: FINAL ORDER APPROVING SETTLEMENT BETWEEN THE CLASS PLAINTIFFS AND DEFENDANTS BENIHANA INC. AND HARU PARK AVENUE CORP.: The proposed Settlement as set forth in the Settlement Agreement is hereby approved pursuant to Rule 23(e) of F.R.C.P., as set forth herein. All claims having been adjudicated, directs the Clerk of the Court to enter final judgment in this action. All motion are terminated. (Signed by Judge P. Kevin Castel on 11/25/2009) (jpo)
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Hong v. Benihana Inc. et al Doc. 24 NOU-25-2009 12:43 F r o m : UNITED STATES DISTRICT COURT SOUTHEKN DISTRICT OF NEW YORK -----------------.----.-----------------.------------.X JIN-YI HONG, on behalf uf himself and all : others similarly situated, Civil Action No.: 08 CV 1 1155 (PKC) Plaintiff, BENIHANA INC. d/b/a HARU PARK AVENUE and HARU PARK AVENUE ELECTRONICALLY FILED : COW., Defendants. DATE FILED: / / ' d . ~- O 5 : x .---.-.---...------.----.---.-----------. FINAL OKDER APPROVING SElTLEMENT BETWEEN THE CLASS PLALNTLFFS AND DEFENDANTS This Court, having considered the Plaintiff's motion for approval of the proposed settlement (the "Saulemenl") as set forth in the Stipulation of Settlenlenl and Release datvd July 24,2009 (the "Scttlement Agreement"), and the Exhibits annexed to and incorporated by reference in the Settlement Agreement, having hcld a hearing on November 24,2009, having considered all of thc submissions and prsuments with respect to the motion, and by previous Order daled August 13,2009. having preliminarily approved the Scttlcment Agreement and the Exhibits annexed thereto and having certified solely for purposes of settlement a plaintiff class (the "Scttlemcnt Class"), pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, comprised of the following: All persons who wcrc cmployed by Derendants at thc Haru restaurant located at 280 Park Avcnue. New York, New York (the "Restaurant") from December 22, 2002 through May 26, 2009 (Lhe "Class Period") as a scrvcr, sushi chef. busser, runner or bartender: hereby, FINDS that: Dockets.Justia.com NOU-25-2009 12:43 From: 1. Notice lo the Settlement Class required by Rule 23(e) ofthe Federal Rules of Civil Procedure, including, but not limited lo, the form of notice and methods of identifying members of the Settlement Class, has been given in an adequate and sufficient manncr, constituting the best notice practicable, and complying in all respects with such Rulc and due process. 2. The Court has held a hearing to consider the fairness, reasonilhleness and adequacy of the Settlcment as set forth in the Settlement Agrccmcnt (a copy of the Settlement Agreement, including its Exhibits, is annexed hcrcto): 3. The Court has been advised of any objections to the Settlcmcnt Agreement und has given consideration thercto, 4. Counscl for both parties have, in good faith, engaged in arms' length negotiations which have resultcd in the Settlement Agreement; 5 The Settlement Agreement, including the Exhibits annoxed thereto, is in all n respects fair, reasonable and adequate. and i the best interests of the Settlemcnt Class and the Settlement Class mccts each of the requirenlents of Kulcs 23(a) and 23@)(3) of thc Federal Rules ol' Civil Procedure, as previously ruled; and 6. The Court has considered and dctcrmined that the venuo ofthis case is proper and lhat the Court has ~rrrisdictionover the parlies, subject Inaner ilnd the Scnlcmcnt Class. Accordingly, the proposed Settlement as sct forth in the Settlemcnt Agreement is hereby APPROVED pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. In accordance with thc tcrms of the Settlement Agreement, the temls of which are hereby incorporated by rcl'erence, it is hcrcby ORDERED, ADJUDGED AND DECREED that: NOU-25-2009 12:43 F r o m : a. Pursuant to the terms of the Settlcmcnt Agreement. Defendants shall pay to each of the members ofthe Settlement Class, who have not timely and validly excluded themselves from the Settlen~ent Class and thus thc Settlement, im individual scttlement amount calculated u rollows: (i) the total settlement amount ol'$260,000 shall bc reduced by the attorneys' fces and costs payment of $65,000 for a total net settlcmcnt m o u n t of $1 95,000; (ii) the total net settlement amount of $195,000 shall be divided by the aggregate number ol'hours worked by dl of the Settlement Class members in a class position (h.. sushi chef, busscr, server, runner, or bartender) at the Reshurmt during the Class Period to determine an Hourly Recovery Amount; (iii) and for each Settlement Class member, the number of hours that Senlemenl Class member worked for Dcfmdmts in a class position at the Restaurant during the Class Period shall be multiplied by the Ilourly Recovery Amount to determine thc individual settlement amount to bc paid to each Settlement Class member, less all payroll withholdings and deductions required by law. (Schedulcd hours worked by sushi chefs in the back o r the house shall not be included when ~dculating Hourly Recovery Amount nor when calculating such sushi chers' individual thc settlement amounts.) Derendant shall also provide replaccment settlement paymcnt checks and rerain unclaimed checks for ihe 365 day period pursuant to Paragraph 12 of the Settlement Agreemenl; b. Dcfcndants shall pay to munscl for the Plainiirf and thc Settlement Class, Joscph, Hcnfcld, Hester tk Kirschenbaum, LLP, attorneys' fees and costs for professional with the action in the total amount of $65,000 and in the method services rendered in co~lneclion and manncr provided for in the Scttlcmcnt Agreement; c. cither party; This action is hereby dismissed with prcjudice and without costs as to d. Dcfcndants Benihana Inc. ("Benihana") and Haru Park Avenue Cop. (''IIaru Park) and each of thcir past, prcscnt and future parents, subsidiarics, divisions, atliliates and any and all o f Bcnihana's, Haru Park's and such ndditional entities' past, present and future stockholde~s, oflicers, members, dircctors, cmployees, wgenls, fiduciaries, insurers, employee benefit plan administrators, attorneys, succcssors and assigns and all persons and entities acting by, through, under or in concert with any of them and my individual or entity which could be jointly liable with any of them (collectively, thc "Releasees") are hereby rclcased and torever discharged from all manner of claims, demru~ds. actions, suits, causes of action, whether class, individual or othcnvise in nature, damages whencver incurred. liabilities of any nature whatsoever, including, without limitation, costs, expenses, penalties and attorneys' fccs, known or unknown, suspected or unsuspected, asserted or unasserted, in law or in equity, that the PlaintiKanUor m y member or membcrs of thc Settlement Class who have not ~imely cxcluded the~llselves liom this action, including any of thcir past, present or future agents, represcntatives, attorneys, trustees, associates, hcirs, cxccutors. administrators, predecessors, succcssors and assigns, and whether or not they objected to the Settlcment and whether or not they participate in the settlcmcnt payments, as provided for in the Settlcrnent Agreement, whcther directly, rcprcsentatively, dmivativcly or in any other capacity. ever had, now have or hereafter can, shall or may have, arising out of or relating to any act or omission prior to the date of this Final Order, concerning in .my way wages (including, without limitation, minimum wages, overtime and spread of hours prcinium pay), lip credits, tips (including, without limitation, thc handling, distribution, pooling and sharing of tips), including, but nol limited to, m y and all claims and conduct alleged in thc Compl~inl this action, including, without limitation, claims which arise in under or relate to any fedcral, state or local constitution, statute, regulation. code andor common To: 12128057949 law regarding wagcs (including, without limitation, minimum wagcs, overtime and spread of hours premium pay), tip credits, tips, gratuities and the payment, handling. distribution, pooling, and sharing of tips. including, without limitation, the Fair Labor Slandards Act, 29 U.S.C. 8 201, et seq., and the New York Statc Labor Law (including. without limitation, any provisions prohibiting retaliation against individuals for engaging in activity protected under any such statutes, codes or regulalions)(lhe "Released Claims"); e. Each and every member of the Settlement Class who has not timely cxcluded herself or himself liom the Settlement Class is hereby prohibited from seeking to establish liability against any of the Releasees based in whole or in part upon any of the Released Claims; f. For a period of six yeus, thc Clerk of the Coufl, Plaintiff and Settlement Class counsel and Defendants' counsel shall maintain the record of those members of the Settlernent Class who have timely excluded themselves from the Settlement Class; g. Nothing in this Order, thc Settlement, the Settlement Agreement, or any of the ncgotiations, discussions and proceedings in comeclion with this Order. the Settlement or the Settlement Agreement shall constitute uny evidencc or an admission by Defcndants or by any ol' the olher Releasccs of any liability, unlawful conduct or wrongdoing by Defcndants or by any of the other Releasees. Furthermore. this Order, the Scttlement, the Settlement Agreement and any of their terms, and all negotiations, discussions and proceedings in connection with them, shall not be offered or rcccived in evidence or used Tor any purpose in this ot any other proceeding in any Court or other forum, except as necessary to enforce the terms of this Order or the Settlement Ayeemcnt; NOU-25-2009 12:43 F r o m : h. Without affecting the finality of this Judgment, the Court retains exclusive jurisdiction of the Settle~neni Agreement, including thc administration and consummation of thc Settlement Agrecmcnt, and in order to determine issues relating to attorney's fees and expenses m d to distribution of the Settlement Payments to members of the Class who have not timely cxcluded themselves from illis aclion. In addition, without affecting the linulity of this Judgment, the Court retains exclusive jurisdiction of, wd Defendants and cach member of the Settlement Class are hereby deemed to have subniittcd irrevocably to the exclusive jurisdiction of this Court for any suit, action, proceeding or dispute arising out of or d a t i n g to this Order. the Settlement Agreement or the applicability of the Settlement Agreement and the Exhibits thereto and to havc agreed that m y such suit, action, proceeding or dispute shall bc resolved in anonjury proceeding before this Court. Without limiting the generality of the foregoing, m y dispute concerning tho provisions of Paragraphs d o r e hcrcof, including but not limited to, any suit, action or proceeding by a plaintiff in which the provisions of Paragraphs d o r e are assertcd as a detknsc, in whole or in part, to any claim or cause of action or othenvisc raised as an objection, shall constitute a suit, ilction or proceeding arising out of or rclating to this Order and thc Settlement Agrccment and Exhibits thereto, and to the fullest extent that they may eflectively do so under applicable law, the parties hereto are hcreby deemed to have irrevocably waived and agreed not to assert, by way of motion, as a delknsc or otherwise, any claim or objcction that they are not subject to the jurisdiction of this Court or that this Court is in any m y on improper venue or an inconvenient forum, and the defendant who is a party lo such suit, action or proceeding shall be entitled to a stay of that suit, ection or proceeding until the Court has cntcrcd a final judgment no longer subject to any appeal, modification or review determining any issues relating to the defense or ob,jcction based on such provisions. 1. h e court r i cis the Clcrk of the Court to enter final judgment in this Action. w - Datcd: Ncw York, N y - Y u r k ~ovember , 2 0 0 9 2 SO ORDERED. /l o f* Hon. P. Kevin Caste1 Unitcd States District Judge Copics of this Order have been mailcd to counsel for the partics.
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