Summary
stating that "in employment litigation, the plaintiff is often a former or current employee of the defendant, and thus, by lending his name to the litigation, he has, for the benefit of the class as a whole, undertaken the risk of adverse actions by the employer or co-workers"
Summary of this case from Parker v. City of N.Y.Opinion
03 Civ. 8698 (SAS) (KNF).
June 22, 2007
REPORT RECOMMENDATION
TO THE HONORABLE SHIRA A. SCHEINDLIN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Gladys Velez ("Velez") and Nancy Mendez Leal ("Leal"), individually and on behalf of all other persons similarly situated ("plaintiffs"), brought this action against Majik Cleaning Service, Inc. ("Majik Cleaning"), Jessie Tieman ("Tieman"), Andrew Feinstein ("Feinstein") and Michael Steinberg ("Steinberg") (collectively "defendants") to recover unpaid compensation owed to them. The plaintiffs, who are or were employed by Majik Cleaning as janitorial and cleaning workers, contend the defendants violated provisions of the Fair Labor Standards Act ("FLSA") and the New York State Labor Law ("NYLL"), by failing to compensate them appropriately for all the hours they performed work for the defendants.
In January 2005, the court certified this action as a collective action, pursuant to 29 U.S.C. § 216(b), in connection with the plaintiffs' FLSA claims, and as a class action, pursuant to Fed.R.Civ.P. 23(a) and (b)(3), in connection with the plaintiffs' NYLL claims. As approved by the court, the class includes all "individuals including past [and] present employees of Majik Cleaning Service, Inc., who performed janitorial, office cleaning, residential cleaning, corporate apartment cleaning and/or other general cleaning work, and all non-administrative work incidental thereto performed" for Majik Cleaning from 1997 through 2003. See Velez v. Majik Cleaning, No. 03 Civ. 8698, 2005 WL 106895, at *1 (S.D.N.Y. Jan. 19, 2005). The law firm of Barnes, Iaccarino, Virginia, Ambinder Shepherd, PLLC was designated lead counsel ("Lead Counsel") by the court. Approximately one year later, the parties reached a settlement. Thereafter, Lead Counsel sought the court's approval of the settlement. The court approved the parties' settlement, preliminarily, and your Honor referred the action to the undersigned magistrate judge so that a hearing ("Fairness Hearing") could be held to determine whether final approval of the proposed settlement is warranted because it is fair, adequate and reasonable.
"Review of a proposed class action settlement generally involves a two-step process: preliminary approval and a subsequent 'fairness hearing'. . . . If the court preliminarily approves the settlement, it then must direct the preparation of notice informing class members of the certification of the settlement class, the proposed settlement and the date of the final fairness hearing." In re Initial Public Offering Securities Litig., No. 01 Civ. 3020, 2007 WL 656880, at *4-5 (S.D.N.Y. Feb. 28, 2007).
II. BACKGROUND
As noted above, the plaintiffs maintain the defendants failed to compensate them appropriately for the work they performed between 1997 and 2003. The defendants steadfastly deny the plaintiffs' allegation. However, the defendants have agreed to compensate the class members monetarily, and resolve the parties' dispute, to avoid the considerable expense and inconvenience that continuing to litigate this action will cause and to avoid the risk of having a judgment obtained at a trial that exceeds the amount of the proposed settlement fund. In consideration of the defendants' agreement to pay a monetary award to each class member, the plaintiffs have agreed to dismiss this action with prejudice.The defendants agreed, initially, to establish a $220,000 settlement fund. Of that amount, $195,000 was to be set aside to pay the FLSA collective action claimants, as well as attorney's fees and costs, while $25,000 was to be set aside to pay the NYLL claimants. Under the terms of the parties' agreement to settle the action, each class member would have received compensation for five additional hours of work, per week, during the time period(s) relevant to this action. The additional hours of work were to be compensated at each employee's hourly rate of pay for up to forty hours of work performed, per week, and at one-and-one-half times the employee's hourly rate of pay for work performed in excess of forty hours per week. Velez and Leal were to be compensated for ten hours of work, per week, for the time period(s) relevant to this action. The additional five hours of compensation that Velez and Leal were slated to receive was negotiated for them by Lead Counsel to compensate Velez and Leal for the effort and time they expended representing the class. Under the terms of the settlement agreement, the defendants agreed to pay the plaintiffs' attorney's fees, in an amount not to exceed $75,000. The defendants agreed further to compensate the plaintiffs for the costs they incurred in bringing the action, in an amount not to exceed $13,000.
At the time the parties reached a settlement, in March 2006, 47 individuals had opted to participate in the FLSA collective action. The number of NYLL claimants was unknown, since notice had not yet been provided to the class members.
On March 31, 2006, the court approved the parties' settlement proposal, preliminarily. Thereafter, a Notice of Settlement (the "Notice") was sent to all class members. In the Notice, class members were directed to file either a Proof of Claim Form or an objection to the settlement, on or before May 26, 2006. Class members were also notified that a Fairness Hearing would be conducted by the Court on June 16, 2006.
The Fairness Hearing commenced on June 16, 2006. During the hearing, the parties notified the Court that, in response to the Notice, more NYLL claims were made than the parties had anticipated when they negotiated the settlement. As a result of the volume of unanticipated claims, the amount set aside originally to fund the settlement was insufficient to compensate all the claimants. Therefore, the parties requested additional time to: (a) review the Proof of Claims Forms that had been submitted by the class members; and (b) discuss the feasibility of having the defendants increase the size of the settlement fund. The Court granted the parties' request and adjourned the hearing, sine die.
On November 21, 2006, the parties submitted a revised Notice of Settlement for the Court's approval. Pursuant to the parties' revised settlement proposal, a settlement fund of $235,000 would be established by the defendants. The parties agreed that $195,000 of the settlement fund would be set aside for the plaintiffs' FLSA claims, attorney's fees and costs, while $40,000 would be set aside for the plaintiffs' NYLL claims. In addition to increasing the size of the settlement fund, the parties agreed to reduce the attorney's fees and costs sought to $74,771.77. Pursuant to the terms of the revised settlement proposal, the FLSA claimants would receive 100 percent of the value of their claims, based on the understanding that each employee would receive five additional hours of compensation for each week worked during the relevant time period. The NYLL claimants would receive 93 percent of the value of their claims, based on the same understanding: that each employee would receive five additional hours of compensation for each week worked during the relevant time period.
On January 19, 2007, the Court approved the plaintiffs' second Notice. Class members had until March 12, 2007, either to opt-out of the action or to file objections to the revised settlement proposal. A Fairness Hearing was rescheduled for March 20, 2007.
On March 20, 2007, the Court resumed the Fairness Hearing. None of the class members attended the hearing. The Court was advised that no objections to the revised settlement proposal had been received by Lead Counsel prior to the hearing.
During the hearing, Lead Counsel explained that the parties determined that five additional hours of compensation for each week worked during the relevant time period(s) was a fair and reasonable estimate of the alleged damages incurred by the class members. Lead Counsel explained further that, due to its inability to determine the actual number of hours worked, for which each class member claimed to have been underpaid, an average number of hours for which the class members alleged to have been underpaid was used to achieve the agreed upon payment by the defendants of the five additional hours of compensation discussed above. Lead Counsel noted that, although the parties had intended to compensate class members fully for their FLSA and NYLL claims, using the five-hours per week formula, as a result of the negotiations, the NYLL claimants will be compensated at a rate that is 93 percent of the value of their claims.
Counsel for both parties urged the Court to recommend approval of the settlement proposal, despite the fact that the NYLL claimants would not be compensated fully for their claims. According to counsel to the parties, the difference between 100 percent compensation and 93 percent compensation is a "small compromise," which, under the circumstances, was reasonable in light of the efforts made by the defendants and Lead Counsel to achieve the maximum level of compensation for the NYLL claimants. These efforts included the defendants' agreement to increase the size of the settlement fund and Lead Counsel's agreement to reduce its fees.
Lead Counsel stated, at the Fairness Hearing, that Velez and Leal would receive five additional hours of compensation for each week worked, because of the effort and time they expended representing the class in this litigation. Lead Counsel emphasized the fact that Velez and Leal spent over four years working with Lead Counsel as the litigation progressed and, during that time, among other things, each underwent two lengthy depositions.
In discussing the benefits of settling the action under the terms of the parties' proposed settlement agreement, Lead Counsel explained that, if the case were to proceed to trial, it would be an extremely costly endeavor because of counsel's need to perform an extensive document review and the need of the plaintiffs to use expert witnesses at the trial. The defendants' counsel concurred and noted that the defendants would also have to employ expert witnesses at the trial to rebut the plaintiffs' proof.
Counsel for the defendants informed the Court that Majik Cleaning was facing financial hardship, as a result of the litigation, and that, although it had set aside funds to meet its financial obligations under the terms of the proposed settlement, it would not be able to withstand the obligation of paying a judgment that was greater than the amount of the settlement fund, if the plaintiffs were successful at a trial.
Lead Counsel maintained that, the amount of discovery involved in the action, including, inter alia: the exchange of interrogatories; the review of documents; the re-creation of electronic data that had been destroyed, inadvertently; and the depositions that have been conducted of the parties, as well as the motion practice in which it had engaged, and the lengthy negotiation sessions in which it participated with opposing counsel in attempting to reach a negotiated disposition, make the fees it is seeking, for legal services, reasonable.
III. CONCLUSIONS OF LAW
Fed.R.Civ.P. 23(e) governs the settlement of class actions and requires court approval before a settlement is executed. Moreover, adequate notice of any proposed settlement of a class action must be provided and the proposed settlement must be the subject of a hearing at which the fairness, adequacy and reasonableness of the proposed settlement is explored and determined by the court. See Fed.R.Civ.P. 23(e)(1). "The reason that judicial approval of the settlement of such an action is required . . . is that the negotiator on the plaintiffs' side, that is, the lawyer for the class, is potentially an unreliable agent of his principals." Parker v. Time Warner Entm't Co., L.P., 239 F.R.D. 318, 336 (E.D.N.Y. 2007) (quoting Mars Steel Corp. v. Continental Illinois Nat'l Bank Trust Co. of Chicago, 834 F.2d 677, 681 [7th Cir. 1987]).
Similarly, "[b]efore the court may approve a settlement in a collective action brought under the FLSA, it must first determine whether the settlement involves the resolution of a bona fide dispute over an FLSA provision and then decide whether the settlement is fair and reasonable." Camp v. Progressive Corp., No. Civ.A. 01-2680, Civ.A. 03-2507, 2004 WL 2149079, at *4 (E.D. La. Sept. 23, 2004) (citing Lynn's Food Stores, Inc. v. U.S. By and Through U.S. Dept. of Labor, Employment Standards Admin., Wage and Hour Div., 679 F.2d 1350, 1352-55 [11th Cir. 1982]).
A court may approve a settlement that is binding on the class only if it determines that the settlement is "fair, adequate, and reasonable" and not a "product of collusion." Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). In doing so, the court must consider both the procedural and substantive fairness of the settlement. See D'Amato v. Deutsche Bank, 236 F.3d 78, 85-86 (2d Cir. 2001).
Procedural Fairness
In evaluating procedural fairness, a court must consider both "the settlement's terms and the negotiating process leading to settlement." Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005). "A court reviewing a proposed settlement must pay close attention to the negotiating process, to ensure that the settlement resulted from 'arm's-length negotiations and that plaintiffs' counsel have possessed the experience and ability, and have engaged in the discovery, necessary to effective representation of the class's interests.'" D'Amato, 236 F.3d at 85 (quoting Weinberger v. Kendrick, 698 F.2d 61, 74 [2d. Cir. 1982]).
In the instant case, several factors support a finding that the parties' settlement proposal is the product of a fair procedure. For example, counsel to both parties are experienced litigators. Moreover, Lead Counsel has represented parties in numerous class actions successfully, and has considerable experience in labor-law cases similar to the case at bar. See Velez, 2005 WL 106895, at *5. In addition, the parties litigated aggressively for more than two years before reaching a settlement. Furthermore, the parties conducted depositions, exchanged document requests and interrogatories and engaged in motion practice. The parties also participated in extensive settlement discussions under the Court's supervision and independent of the Court, before crafting the instant settlement proposal. Moreover, nothing in the record before the Court indicates that the proposed settlement has been achieved through fraudulent or collusive conduct. All of these factors militate in favor of finding that the parties' proposed settlement agreement resulted from a fair procedure.
Substantive Fairness
The Second Circuit has identified nine factors to aid courts in evaluating the substantive fairness of a proposed class action settlement:
(1) the complexity; expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation[.]City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (citations omitted).
(1) The Complexity, Expense and Likely Duration of the Litigation
The claims in the instant case are not inherently complex. However, the Court is mindful of: (i) the particular difficulties the parties experienced litigating this case because of their inability to determine the precise numbers of hours for which the plaintiffs allege they were not compensated appropriately; and (ii) the extraordinary work that had to be performed during the pretrial discovery phase of the litigation, owing to the inadvertent destruction of data that was stored electronically. While the instant class action may be less complex than others, there are always risks in proceeding to trial and these risks are compounded by virtue of the nature of class action litigation.See Frank v. Eastman Kodak Co., 228 F.R.D. 174, 185 (W.D.N.Y. 2005).
During the Fairness Hearing, Lead Counsel advised the Court that if the action were to proceed to trial, the expense associated with that phase of the litigation would approach $40,000. Lead Counsel explained that this was so because of the document-intensive analysis that would have to be performed and the need of the parties to retain and elicit opinions from expert witnesses. Counsel to the defendants did not disagree with that assessment.
The disposition the parties have negotiated will provide an immediate award to the plaintiffs and obviate the need for the parties to incur additional legal expenses. Moreover, even if the plaintiffs were successful at a trial, the potential for an appeal from the judgment exists. Appellate litigation would inevitably result in additional delay and would cause the parties to incur additional expenses. Therefore, the Court finds that the expense to the parties and the likely delay additional litigation would engender, militate in favor of approving the parties' proposed settlement.
(2) Reaction of the Class to Settlement
Notice of the proposed settlement was provided to all class members. As of March 12, 2007, the deadline on which objections by class members were to be sent to Lead Counsel, no objections had been made. Furthermore, as noted earlier in this writing, none of the class members attended the Fairness Hearing to express his or her opposition to the settlement proposal. Since no adverse reaction to the proposed settlement has been expressed by any class member, the Court finds that this factor weighs in favor of approving the proposed settlement. (3) Stage of Proceedings and Amount of Discovery Completed
"The stage of the proceedings and the amount of discovery the parties have conducted is 'relevant to the parties' knowledge of the strengths and weaknesses of the various claims in the case, and consequently affects the determination of the settlement's fairness.'" Monaco v. Carpinello, No. CV-98-3386, 2007 WL 1174900, at *8 (E.D.N.Y. Apr. 19, 2007) (quoting In re Painewebber Ltd. Pshps. Litig., 171 F.R.D. 104, 126 [S.D.N.Y. 1997]). In the instant case, the parties have engaged in substantial pretrial discovery, including the production of documents, the oral examination of witnesses and the exchange of interrogatories. The parties have also engaged in motion practice. The Court finds, based on the above, that the parties have gathered information of a sufficient quantity, during the pretrial discovery phase of the litigation to permit them to assess the strengths and weaknesses of the claims that have been asserted and their respective positions. Consequently, the Court finds further that the instant factors weigh in favor of the proposed settlement.
(4) Risks of Establishing Liability and Risks Establishing Damages
"Litigation inherently involves risks." Banyai v. Mazur, No. 00 Civ. 9806, 2007 WL 927583, at *9 (S.D.N.Y. March 27, 2007). In the case at bar, the plaintiffs' ability to establish the defendants' liability and to prove their damages at a trial is not free from doubt. This is so, in part, because of the difficulty their counsel has encountered in determining the actual number of hours worked for which each class member claimed to have been underpaid. The proposed settlement benefits each plaintiff in that he or she will recover a monetary award immediately, without having to risk that an outcome unfavorable to the plaintiffs will emerge from a trial. Therefore, the Court finds that these factors weigh in favor of approving the settlement proposal. (5) Risks of Maintaining the Class Action Through Trial
The plaintiffs' motion for class certification was not opposed by the defendants. Furthermore, during the Fairness Hearing, counsel to the defendants noted that the value of many of the plaintiffs' claims was so small that it would be inefficient to pursue those claims outside of a class action. Accordingly, in the context of this case, this factor is of little relevance, in determining whether the parties' final settlement proposal should be approved.
(6) Ability of the Defendants to Withstand a Greater Judgment
"Evidence that a defendant will not be able to pay a greater judgment at trial than the amount offered in settlement tends to weigh in favor of approval of settlement, since the 'prospect of a bankrupt judgment debtor down at the end of the road does not satisfy anyone involved in the use of class action procedures.'"Banyai, 2007 WL 927583, at *11 (quoting In re Warner Comm'cns Sec. Litig., 618 F. Supp. 735, 746 [S.D.N.Y. 1985] [citation omitted]).
During the Fairness Hearing, the defendants' counsel proffered that Majik Cleaning is a "very small company" that lacks "capital assets." Thus it was his understanding that a judgment in excess of the settlement amount would likely destroy the corporate entity and force the plaintiffs to seek recovery against the individually named defendants. The defendants' counsel explained that such an exercise "would be a protracted affair." Nothing in the record generated at the Fairness Hearing suggests that Majik Cleaning's circumstances are different from those proffered by its counsel. Therefore, the Court finds that this factor militates in favor of approving the proposed settlement. (7) Range of Reasonableness of the Settlement Fund In Light of the Best Possible Recovery and In Light of All the Attendant Risks of Litigation
"Fundamental to analyzing a settlement's fairness is 'the need to compare the terms of the compromise with the likely rewards of litigation.'" Banyai, 2007 WL 927583, at *11 (quoting Weinberger, 698 F.2d at 73). "The fact that a proposed settlement may only amount to a fraction of the potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved." Grinnell Corp., 495 F.2d at 455.
The proposed settlement compensates the plaintiffs for five additional hours of work performed for each week of the relevant time period(s). Although the plaintiffs might be able to obtain a greater award, based on their actual damages and liquidated damages, if they were to succeed at a trial, it is possible that several more years could elapse before the plaintiffs received any benefit from their litigation efforts. Moreover, the possibility exists that the plaintiffs would not be able either to establish the defendants' liability or to prove their damages at a trial. In contrast, the proposed settlement eliminates these risks and provides a substantial and immediate benefit to the class members. This reality supports approving the parties' proposed settlement.
Incentive Payment to Class Representatives
"Incentive awards are not uncommon in class action cases and are within the discretion of the court. In calculating incentive [payments], courts consider:
'the existence of special circumstances including the personal risk (if any) incurred by the plaintiff applicant in becoming and continuing as a litigant, the time and effort expended by that plaintiff in assisting in the prosecution of the litigation or in bringing to bear added value (e.g., factual expertise), any other burdens sustained by that plaintiff in lending himself or herself to the prosecution of the claim, and of course, the ultimate recovery.'"Frank, 228 F.R.D. at 187 (quoting Roberts v. Texaco. Inc., 979 F. Supp. 185, 200 [S.D.N.Y. 1997]). Moreover, "[i]n employment litigation, the plaintiff is often a former or current employee of the defendant, and thus, by lending his name to the litigation, he has, for the benefit of the class as a whole, undertaken the risk of adverse actions by the employer or co-workers." Id. at 187 (citation omitted).
Through their service as class representatives, Velez and Leal exposed themselves to the prospect of having adverse actions taken against them by their former employer and former co-workers because Velez and Leal determined to pursue this action on behalf of the class. As class representatives, Velez and Leal dedicated a significant amount of time, over several years, to working with and monitoring the work of Lead Counsel. In addition, they became active participants in the pretrial discovery activities by, among other things, undergoing lengthy depositions. The risks to which Velez and Leal allowed themselves to be exposed, as the class representatives, and the effort they expended on behalf of all class members, justifies their receipt of an incentive award. In this case, that means that Velez and Leal will receive twice the amount of the award that other class members will receive. In the circumstance of the case at bar, providing for an incentive payment to be made to the class representatives is reasonable and appropriate.
Attorney's Fees
"Courts may award attorneys' fees in common fund cases under either the 'lodestar' method or the 'percentage of the fund' method." Wal-Mart Stores, Inc., 396 F.3d at *121 (citation omitted). "The lodestar method multiplies hours reasonably expended against a reasonable hourly rate." Id. "The trend in this Circuit is toward the percentage method, Visa Check III, 297 F. Supp. 2d [503], 520 [E.D.N.Y. 2003], which "directly aligns the interests of the class and its counsel and provides a powerful incentive for the efficient prosecution and early resolution of litigation." Id. (quoting In re Lloyd's Am. Trust Fund Litig., No. 96 Civ. 1262, 2002 WL 31663577, at *25 [S.D.N.Y. Nov. 26, 2002]).
Irrespective of which method is used, the following factors determine the reasonableness of attorney's fees: "(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation . . .; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations." Id. (alteration in original) (citing to Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 [2d Cir. 2000]).
The proposed settlement provides for an award of attorney's fees of $65,771.77 In addition, Lead Counsel seeks approximately $9,000, as reimbursement for costs and class administrative fees. Thus, the total amount requested by Lead Counsel is $74,771.77, 31 percent of the total settlement fund. The Court finds that the percentage of the settlement fund allocated for attorney's fees and costs, which is less than one-third of the total settlement fund, is reasonable based on: (1) Lead Counsel's experience representing plaintiffs in class actions; (2) the relatively small size of settlement fund in this action; and (3) the work performed by Lead Counsel in prosecuting this action. That work included reviewing many documents, researching legal issues and factual matters, conducting investigations, attending depositions, making multiple court appearances, negotiating settlement terms and conditions with opposing counsel, and engaging in motion practice. See Frank, 228 F.R.D. at 189 (finding attorney's fees and costs award of 40% reasonable due to, inter alia, the relatively small settlement involved); see also In re Arakis Energy Corp. Securities Litig., No. 95 Civ. 3431, 2001 WL 1590512, at *14 (E.D.N.Y. Oct. 31, 2001) (finding attorney's fees award of 25% of the settlement fund reasonable). However, the Court notes it cannot perform a comparative analysis of the percentage award method and the lodestar method, because the record does not contain Lead Counsel's billings records or the hourly rate(s) it charged for the legal services it provided to the plaintiffs. See Wal-Mart Stores, Inc., 396 F.3d at *123.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the parties' request, that their proposed settlement be approved, be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, United States District Judge, 500 Pearl St., Room 1620, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).