         12-3074-cv
         Cohen v. Gerson Lehrman Grp., Inc.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of May, two thousand thirteen.
 5
 6       PRESENT: ROBERT D. SACK,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       JEFFREY COHEN, ON BEHALF OF HIMSELF
14       INDIVIDUALLY, ON BEHALF OF ALL SIMILARLY
15       SITUATED EMPLOYEES,
16
17              Plaintiff-Counter-Defendant-Appellant,
18
19                             -v.-                                                 12-3074-cv
20
21       GERSON LEHRMAN GROUP, INC.,
22
23              Defendant-Counter-Claimant-Appellee.
24
25
26       FOR APPELLANT:                DOUGLAS H. WIGDOR, Thompson Wigdor LLP,
27                                     New York, NY.
28
29       FOR APPELLEE:                 MICHAEL J. PUMA, Morgan, Lewis & Bockius
30                                     LLP, Philadelphia, PA.
31
32            Appeal from the United States District Court for the
33       Southern District of New York (Castel, J.).
1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

2    AND DECREED that the judgment of the United States District

3    Court for the Southern District of New York is AFFIRMED.

4        Plaintiff-Appellant Jeffrey Cohen appeals from a July

5    10, 2012 judgment of the United States District Court for

6    the Southern District of New York (Castel, J.) granting

7    final approval of the parties’ Joint Stipulation of Class

8    Settlement and Release (“Stipulation”), denying enhancement

9    payments to three named class representatives, and awarding

10   Plaintiff-Appellant’s counsel a total of $97,487 in

11   attorney’s fees.   We assume the parties’ familiarity with

12   the underlying facts, the procedural history, and the issues

13   presented for review.

14       Plaintiff-Appellant argues that the district court

15   abused its discretion by denying enhancement payments to the

16   named class representatives and by awarding a fraction of

17   the $575,000 requested in attorney’s fees in this Fair Labor

18   Standards Act class action.   Plaintiff-Appellant and

19   Defendant-Appellee Gerson Lehrman Group, Inc., entered into

20   a Stipulation establishing a $900,000 qualified settlement

21   fund to provide for class members’ unpaid back overtime

22   wages, enhancement payments, attorney’s fees, and

23   administrative costs.   The Stipulation included a waiver of


                                   2
1    the parties’ right to appeal “[p]rovided that the Final

2    Approval Order is consistent with the terms and conditions

3    of this [Stipulation] in all material respects.”      The

4    Stipulation also contained language specifying that an award

5    of enhancement payments or attorney’s fees “in an amount

6    less than that sought . . . will not constitute . . . a

7    material modification of the [Stipulation].”

8         As agreed, the parties submitted the Stipulation for

9    final approval to the district court and Defendant-Appellee

10   did not contest Plaintiff-Appellant’s request for the

11   enhancement payments or attorney’s fees specified in the

12   Stipulation.   The district court granted final approval of

13   the Stipulation but declined to award enhancement payments

14   or the full sum of attorney’s fees.     We find that Plaintiff-

15   Appellant’s appeal of the district court’s judgment is

16   foreclosed by the plain language of the Stipulation.1

17        “It is well established that ‘[s]ettlement agreements

18   are contracts and must therefore be construed according to

19   general principles of contract law.’”     Collins v. Harrison-

20   Bode, 303 F.3d 429, 433 (2d Cir. 2002) (quoting Red Ball



          1
            We neither express nor imply a view as to the propriety
     vel non of the amount of attorney’s fees awarded by the district
     court or the somewhat opaque methodology it used to arrive at
     that figure.

                                    3
1    Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484

2    (2d Cir. 1999)).    Under New York law, which governs the

3    Stipulation, we assess whether the parties’ agreement is

4    ambiguous on its face, rather than referring to extrinsic

5    evidence.    Id. (citing Kass v. Kass, 91 N.Y.2d 554, 566

6    (1998)).    “Contract language is ambiguous if it is capable

7    of more than one meaning when viewed objectively by a

8    reasonably intelligent person who has examined the context

9    of the entire integrated agreement.”    Id. (internal

10   quotation marks omitted).

11       There is no ambiguity here.    The Stipulation explicitly

12   states that an award of enhancement payments or attorney’s

13   fees in an amount less than requested does not materially

14   alter the contract.    Indeed, this provision is sensible in

15   light of the parties’ awareness that the district court

16   retained discretion to award a lesser amount of payments and

17   fees.   Thus, a reduced award is “consistent” with the

18   Stipulation “in all material respects.”     Plaintiff-Appellant

19   waived the right to appeal on this basis.

20       For the foregoing reasons, the judgment of the district
21
22   court is hereby AFFIRMED.
23                                FOR THE COURT:
24                                Catherine O’Hagan Wolfe, Clerk
25

26



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