Lassen v. Hoyt Livery Inc et al

Filing 43

ORDER granting Plaintiff's 21 22 Motions for Conditional Certification of FLSA Collective Action and Certification of Rule 23 Class Action. Signed by Judge Jeffrey A. Meyer on 9/17/2014. (Norman, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ROGER LASSEN, JR., individually and on
behalf of all other similarly situated
individuals,
Plaintiff,
No. 3:13-cv-01529 (JAM)

v.
HOYT LIVERY INC., SANTO SILVESTRO,
and LYNDA SILVESTRO,
Defendants.

RULING GRANTING PLAINTIFF’S MOTIONS FOR CONDITIONAL
CERTIFICATION OF FLSA COLLECTIVE ACTION AND CERTIFICATION OF
RULE 23 CLASS ACTION [Docs. #21, 22]
For nearly three years, plaintiff Roger Lassen, Jr., worked as a limousine driver for
defendant Hoyt Livery Inc. (“Hoyt Livery” or “the company”), a Connecticut company owned
by defendants Santo Silvestro and Lynda Silvestro. Plaintiff and all other limousine drivers at
Hoyt Livery were paid in accordance with a commission-based system, and drivers did not
receive more money if they worked more than 40 hours in a week. Plaintiff contends that Hoyt
Livery’s compensation system violated the overtime-pay requirements of both the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and the Connecticut Minimum Wage Act,
Connecticut General Statutes § 31-58 et seq. (“CMWA”).1
Seeking to represent a class of full-time Hoyt Livery limousine drivers, plaintiff has filed
motions for conditional certification of a FLSA collective action under 29 U.S.C. § 216(b) and

1

In addition to asserting these FLSA and CMWA claims, plaintiff’s complaint also sets forth a claim for
illegal wage deductions in violation of Connecticut General Statutes § 31-71e. Plaintiff’s counsel has represented to
the Court that they will file an amended complaint removing this claim after the Court renders a decision on the
pending motions addressed in this ruling.

1

certification of a CMWA class action under Fed. R. Civ. P. 23. Because I conclude that the
requirements for a collective action and for a class action have been established, I grant both
motions for certification.
Background
Hoyt Livery is a limousine company that primarily serves residents of Fairfield County,
Connecticut, providing transportation to and from the New York metropolitan area airports and
Manhattan. The company is owned by Santo Silvestro, who serves as president and treasurer,
and Lynda Silvestro, who acts as secretary, vice president, and chief financial officer.2 Hoyt
Livery employs approximately 50 limousine drivers, including at least 40 full-time drivers.
Plaintiff was a full-time limousine driver for Hoyt Livery from December 2010 to August 2013.
There is no dispute that, during the time period at issue in this litigation, plaintiff and all
other full-time limousine drivers at Hoyt Livery were compensated under the same commissionbased system. Under this system, limousine drivers were assigned by a dispatcher to work trips
requested by customers, and the assigned driver would earn 40% of whatever fee was charged to
the customer for the requested trip. That 40% figure included two components: 25% was
designated as a “commission,” while 15% was designated as a “built-in gratuity.”3 Hoyt Livery
requires its full-time drivers to be available six days a week, but drivers are free to accept or
reject any trip offered by the dispatcher, and there is no requirement that drivers work any
minimum or maximum number of hours per week.
Hoyt Livery requires its full-time drivers to perform certain activities for which they
receive no additional compensation beyond the 40% commission. For example, Hoyt Livery

2

Lynda Silvestro’s responsibilities include overseeing human resources. Both of the Silvestros are
responsible for determining the rate and method of payment to limousine drivers, and ensuring Hoyt Livery’s
compliance with state and federal wage and hour laws.
3
For the sake of clarity, I hereafter refer to the “commission” and the “built-in gratuity” collectively as the

2

provides customers with one “free” hour of wait time for pick-up at an airport, and drivers do not
receive any additional compensation for this time. (If, however, the wait time exceeds one hour,
then the company charges the customer $55 per hour, and the driver receives 40% of that
additional wait time charge.) Nor does the company provide any additional compensation to
drivers for time spent driving to a pick-up location without a customer in the vehicle, a practice
known as “deadheading.” Additionally, drivers are expected to maintain their assigned company
vehicle, bring company vehicles assigned to them in for service, check their vehicle’s fluids,
wash and wax their vehicle, take the vehicle to an auto body shop if necessary, bring the vehicle
to an auto repair shop for regular oil changes and transmission service, and rotate the vehicle’s
tires—all without additional compensation beyond the 40% commission.
Limousine drivers at Hoyt Livery are required to maintain daily trip tickets and weekly
trip logs in order to be paid. The daily trip tickets include information about the customer’s name
and destination, as well as the price that the customer is charged and the driver’s mileage on each
trip. The weekly trip logs indicate the date, place of pick-up and drop-off, and the mileage of the
round trip, among other information. Hoyt Livery also uses a computer software system to track
trips made by its drivers and to calculate the commission earned by each driver. While the
software system has an option to track the hours worked by drivers, defendants did not utilize
that feature. Indeed, it is undisputed that until July 2013 Hoyt Livery did not maintain any hourly
time records for its limousine drivers.
It is also undisputed that Hoyt Livery did not provide any overtime pay to drivers who
worked more than 40 hours per week. Drivers earned the same “flat rate” 40% commission per
trip no matter how many hours they had worked or trips they had taken in a week. There remains
considerable dispute, however, as to whether plaintiff or other drivers actually worked more than

“40% commission.”

3

40 hours per week and, relatedly, what activities properly constitute work time for which
limousine drivers are entitled to be compensated.
At least three former Hoyt Livery limousine drivers claim that they regularly worked
more than 40 hours per week. Plaintiff states that he usually worked between 40 to 50 hours per
week driving for Hoyt Livery. Another former driver—Murphy Pierce—states that he usually
worked between 50 to 60 hours per week.4 And a third former driver—Burton Dupee—claims
that he regularly worked at least 50 hours per week, and frequently worked more than 60 hours
per week.5
Defendants do not deny that some drivers worked more than 40 hours per week. When
asked at his deposition whether any Hoyt Livery drivers work more than 40 hours per week,
defendant Santo Silvestro testified: “Probably. I’m sure there’s some of them, you know, that
are.” Doc. #39 at 2. Still, defendants maintain that it is unusual for a driver to work more than 40
hours per week. Defendants have submitted 12 virtually identical affidavits by individuals
currently employed as full-time limousine drivers at Hoyt Livery. In these 12 driver affidavits,
each driver states that, “[w]ith perhaps some minor exceptions,” he does not “believe” that he
has worked over 40 hours per week. Doc. #29-2, ¶ 7.
Around May 2013, the United States Department of Labor (“DOL”) began an audit of
Hoyt Livery and other Connecticut limousine companies regarding overtime pay. As a result of
the audit, Hoyt Livery instructed its drivers in June 2013 to record the hours that they work each
week, although the company does not specify what particular work-related activities should or
should not be recorded as work time. For example, the company does not instruct employees

4

Pierce has filed has filed written notice of his consent to join this action as a party plaintiff pursuant to 29
U.S.C. § 216(b). See Doc. #15.
5
Dupee has filed a separate federal action in this District alleging substantially similar claims against the
same defendants. See Dupee v. Hoyt Livery Inc. et al, No. 3:13-cv-01185-DFM.

4

whether “deadheading,” wait time at an airport of less than an hour, or time spent maintaining a
company vehicle should be recorded as work time. Nevertheless, Hoyt Livery drivers are now
paid “[o]ne and a half times their weekly commission” for hours worked in excess of 40 per
week. Doc. #29-9 at 8. No limousine drivers have claimed overtime pay since the new policy
was instituted. Hoyt Livery maintains that this “change in policy was instituted not as a
concession that wage laws had been violated by Hoyt, but rather to satisfy the DOL during the
time the audit was being conducted.” Doc. #29-1, ¶ 28. In October 2013, plaintiff initiated this
putative collective action and class action lawsuit against defendants.
Discussion
Plaintiff moves for conditional certification of a FLSA collective action and for Rule 23
class action certification of his CMWA claim. While there is no inherent incompatibility between
these two certification motions, see Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d
234, 247-49 (2d Cir. 2011), the certification inquiries for each of these motions are “quite
distinct,” see Myers v. Hertz Corp., 624 F.3d 537, 556 (2d Cir. 2010). Accordingly, I address
each motion separately below.
1. Motion for Conditional Certification of FLSA Collective Action
Plaintiff moves for: (1) conditional certification of a FLSA collective action consisting of
all persons who have been employed as full-time limousine drivers at Hoyt Livery in the
previous three years; (2) an order requiring that defendants disclose the names, last known
addresses, telephone numbers, and email addresses of all persons employed as full-time
limousine drivers at the company during the past three years; and (3) authorization of the
issuance of notice to these potential opt-in plaintiffs. For the reasons set forth below, I grant
plaintiff’s motion, except with regards to certain aspects of his disclosure and notice requests.

5

Congress enacted the FLSA to “protect workers and ensure that they are not subjected to
working conditions ‘detrimental to the maintenance of the minimum standard of living necessary
for health, efficiency, and general well-being.’” Shahriar, 659 F.3d at 243 (quoting 29 U.S.C. §
202(a)). In furtherance of this goal, the FLSA imposes numerous “wage and hour” requirements,
including an overtime provision mandating employers to pay non-exempt employees time-and-ahalf for each hour worked in excess of 40 hours per week.6 See 29 U.S.C. § 207(a)(1).
Section 16(b) of the FLSA not only authorizes an employee to bring a private cause of
action on his or her own behalf but also allows for an employee to bring a “collective action” on
behalf of similarly situated employees. See 29 U.S.C. § 216(b).7 A collective action under the
FLSA is “fundamentally different” from a class action under Fed. R. Civ. P. 23. Genesis
Healthcare Corp. v. Symczyk, __ U.S. __, 133 S. Ct. 1523, 1529 (2013). Unlike a Rule 23 class
action in which putative class members must opt out in order to remove themselves from the
class, a FLSA collective action requires employees to affirmatively opt in to the case in order to
join the collective action group. 29 U.S.C. § 216(b); see also Alli v. Boston Mkt. Co., 2011 WL
4006691, at *1 (D. Conn. 2011). The Supreme Court has held that “district courts have
discretion, in appropriate cases, to implement . . . § 216(b) . . . by facilitating notice to potential
plaintiffs” of the pendency of the action and of their opportunity to opt in as represented

6

As relevant here, the exemptions to this rule include the taxicab exemption, see 29 U.S.C. § 213(b)(17),
and the motor carrier exemption, see 29 U.S.C. § 213(b)(1). While plaintiff’s memorandum in support of his motion
for conditional collective action certification discusses the inapplicability of these exemptions, defendants expressly
do not claim either of these exemptions at the present time. See Doc. #29 at 13-14, n.4. Defendants hold out the
possibility that they will seek to assert the motor carrier exemption at a later date, but that issue is not before the
Court at this time.
7
29 U.S.C. § 216(b) provides in relevant part: “Any employer who violates the [overtime provisions of the
FLSA] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their
unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . An
action to recover the liability prescribed in . . . the preceding sentence[] may be maintained against any employer . . .
in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.”

6

plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)).8
The Second Circuit has described a two-step process for district courts to evaluate the
certification of collective actions under the FLSA:
The first step involves the court making an initial determination to send notice to
potential opt-in plaintiffs who may be “similarly situated” to the named plaintiffs
with respect to whether a FLSA violation has occurred. The court may send this
notice after plaintiffs make a modest factual showing that they and potential optin plaintiffs together were victims of a common policy or plan that violated the
law. . . . The modest factual showing cannot be satisfied simply by unsupported
assertions, but it should remain a low standard of proof because the purpose of
this first stage is merely to determine whether “similarly situated” plaintiffs do in
fact exist. At the second stage, the district court will, on a fuller record, determine
whether a so-called “collective action” may go forward by determining whether
the plaintiffs who have opted in are in fact “similarly situated” to the named
plaintiffs. The action may be “de-certified” if the record reveals that they are not,
and the opt-in plaintiffs’ claims may be dismissed without prejudice.
Myers, 624 F.3d at 554-55 (citations and internal quotation marks omitted).
A court’s decision regarding whether to certify a FLSA collective action does not depend
on the merits of the plaintiff’s claims. See, e.g., Perkins v. S. New England Tel. Co., 669 F. Supp.
2d 212, 219 (D. Conn. 2009) (“At the certification stage, a court need not judge the merits of the
plaintiff’s claims because they are irrelevant to the collective action inquiry, as long as plaintiffs
assert a plausible basis for their claim.” (citations omitted)). Rather, the decision depends solely
upon whether the plaintiff has met his minimal burden of demonstrating that a class of “similarly
situated” employees exists. “Generally, courts [will conditionally certify a collective action and]
authorize dissemination of notice upon a ‘simple showing’ that other employees may also have
been subjected to the allegedly improper employment policy.” Tomkins v. Amedisys, Inc., 2014
WL 129407, at *2 (D. Conn. 2014) (quoting Pippins v. KPMG, LLP, 2012 WL 19379, at *6
(S.D.N.Y. 2012)). This “simple showing” requirement can be met by evidence that other

8

While Hoffman-La Roche arose in the context of the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 626(b), that act “incorporates enforcement provisions of the [FLSA], including § 216(b),” and, thus,

7

employees had similar “‘job requirements’” and “‘pay provisions.’” Salomon v. Adderley Indus.,
Inc., 847 F. Supp. 2d 561, 563 (S.D.N.Y. 2012) (quoting Myers, 624 F.3d at 555).
With these standards in mind, I have little difficulty concluding that plaintiff has met his
“modest burden” of demonstrating that he and other Hoyt Limousine drivers are “similarly
situated,” warranting conditional collective action certification and notice. First, neither side
disputes that, during the relevant time period in this litigation, all Hoyt Livery limousine drivers
were subject to the same commission-based compensation policy: all drivers were paid 40% of
the fee charged to the customer for each trip, and no driver was paid time-and-a-half if and when
he worked more than 40 hours per week. Second, it is clear that all limousine drivers were
subject to the same basic job duties and workplace policies. Third, I conclude—without making
any ultimate determination regarding the merits of plaintiff’s claim on a full factual record—that
plaintiff has alleged a plausible FLSA violation by pleading the existence of a class of nonexempt employees who did not receive overtime pay for any hours worked in excess of 40 hours
per week.
Defendants, however, raise several arguments against conditional collective action
certification. First, defendants argue that the declarations submitted by plaintiff—those of Pierce,
Dupee, and plaintiff himself—contain “conclusory statements” that do not provide evidence of a
common scheme or plan to deny overtime pay. Doc. #29 at 9-10. I do not agree. In their
declarations, all three former Hoyt Livery limousine drivers state that, during their employment
at the company, they were paid on a “per trip” basis, and did not earn any overtime
compensation for hours worked over 40 per week. Additionally, each of the declarants states that
he has spoken to other full-time drivers, and that the other drivers stated that they have never
received any overtime pay for hours worked beyond 40 per week. At this stage of the collective

Hoffman-LaRoche’s interpretation of § 216(b) is binding on this Court in FLSA cases. Myers, 624 F.3d at 555 n.9.

8

action certification process, these declarations—including the hearsay statements of other drivers
contained therein—are probative evidence of a common scheme or plan. See Fracasse v.
People’s United Bank, 2013 WL 3049333, at *2 (D. Conn. 2013) (quoting Zaniewski v. PRRC
Inc., 848 F. Supp. 2d 213, 220 (D. Conn. 2012)) (noting that, “[u]nder the ‘modest factual
showing’ standard, courts ‘regularly rely on plaintiffs’ affidavits and hearsay statements’”). In
any event, I need not rely on these affidavits since defendants readily concede that all limousine
drivers at Hoyt Livery had the same job duties and were compensated under the same
commission-based system. See Doc. #29 at 3-7. While defendants argue that this compensation
system did not violate the FLSA, that is not the relevant inquiry at this time. “The focus of this
[conditional certification] inquiry . . . is not on whether there has been an actual violation of law
but rather on whether the proposed plaintiffs are ‘similarly situated’ under 29 U.S.C. § 216(b)
with respect to their allegations that the law has been violated.” Young v. Cooper Cameron
Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (emphasis added).
Second, defendants argue that conditional collective action certification is inappropriate
because there is considerable dispute regarding which activities are properly categorized as
compensable “work time.” Doc. #29 at 10-11, 15-16. More specifically, defendants argue that (1)
the 40% per trip commission that Hoyt Limousine paid to its drivers fully compensated drivers
for time in the vehicle without a passenger (i.e., time spent “deadheading” or waiting less than an
hour for a customer at an airport), and (2) other work-related driver activities, such as the
requirements that limousine drivers clean their assigned limousine and check the limousine’s
tires and fluids, are not compensable under the de minimis doctrine, see Singh v. City of New
York, 524 F.3d 361, 370 (2d Cir. 2008) (Sotomayor, J.) (noting that “[t]he de minimis doctrine
permits employers to disregard, for purposes of the FLSA, otherwise compensable work [w]hen

9

the matter in issue concerns only a few seconds or minutes of work beyond the scheduled
working hours”). But these arguments are not relevant to the conditional collective action
certification inquiry. “Indeed, at the conditional certification stage, ‘the court does not resolve
factual disputes [or] decide substantive issues on the merits . . . .’” Aros v. United Rentals, Inc.,
269 F.R.D. 176, 180 (D. Conn. 2010) (quoting Lynch v. United Services Auto, Ass’n, 491 F.
Supp. 2d 357, 368-69 (S.D.N.Y. 2007)). Moreover, there is no indication that these issues could
not adequately be resolved on a collective action-wide basis.
Third, defendants claim that plaintiff and potential opt-in plaintiffs cannot prove what
hours they actually worked because plaintiff’s “documentary submissions,” which consist of
copies of the daily trip tickets, weekly trip logs, and computer generated wage statements, do not
reflect drivers’ work hours and therefore cannot be utilized to demonstrate that any individual
driver was denied overtime pay. Doc. #29 at 11-12. This argument again misapprehends the
nature of the conditional collective action certification inquiry. At this stage, I do not consider
whether plaintiff could sustain his burden of proof before the trier of fact. Rather, the only
relevant issue is whether plaintiff and the potential opt-in plaintiffs are “similarly situated.” The
lack of Hoyt Livery records precisely demonstrating the hours worked by full-time limousine
drivers is irrelevant to that inquiry.
To the extent that defendants argue that this evidence demonstrates that plaintiff and
other drivers worked varying schedules and could be entitled to differing damages should they
prevail on their claims, that issue goes to the individualized question of damages—not the
common issue of liability. The fact that putative collective-action members performing similar
work and subject to a common compensation policy may be owed different damages does not
suggest that such individuals are not sufficiently similarly situated for FLSA purposes.

10

Fourth, defendants argue that the 12 boilerplate driver affidavits they have submitted cast
doubt upon the existence of a putative class of plaintiffs that were denied overtime pay. See Doc.
#29-2. But even these affidavits are suggestive of at least some overtime hours violations. Each
of the 12 drivers states that, “with perhaps some minor exceptions,” he does not “believe” that he
has worked over 40 hours per week. Id. ¶ 7 (emphasis added). Additionally, each driver states
that he does not consider time spent alone in a vehicle to be “‘work’ time,” that he has “never
witnessed any driver truly working 50 or more hours per week, and seldom has [witnessed] any
driver truly work[ing] more than 40 hours a week.” Id. ¶¶ 13, 15 (emphasis added). At the
conditional certification stage, the Court does not weigh evidence or resolve factual disputes and,
consequently, affidavits calling into some question plaintiff’s factual claims are not controlling.
See Alli, 2011 WL 4006691, at *5 (refusing to consider at the conditional certification stage
declarations from defendants’ current employees who “indicate[d] that they perform tasks and
responsibilities that differ from those performed by the plaintiffs”).
Nor is it relevant that the 12 drivers state that they are not interested in joining this action.
Doc. #29-2, ¶ 16. “FLSA plaintiffs are not required to show that putative members of the
collective action are interested in the lawsuit in order to obtain authorization for notice of the
collective action to be sent to potential plaintiffs.” Amendola v. Bristol-Myers Squibb Co., 558 F.
Supp. 2d 459, 466 (S.D.N.Y. 2008). Similarly, the perceptions of the 12 drivers as to what
activities should constitute “working time” are not relevant at this time.
Because it is undisputed that all full-time limousine drivers at Hoyt Livery had the same
job duties and were subject to the same allegedly unlawful compensation policies, I conclude
that plaintiff and potential opt-in plaintiffs are “similarly situated” for FLSA purposes and,
accordingly, conditionally certify this case as a FLSA collective action. The collective group to

11

receive notice shall be comprised of all persons employed as full-time limousine drivers at Hoyt
Livery in the three years prior to the Court’s entry of this order.9
To facilitate notice of this collective action case and the right of eligible individuals to
join as opt-in plaintiffs, I grant plaintiff’s request for an order that defendants disclose to him a
list of the names, last known mailing addresses, and last known email addresses of all individuals
employed as full-time limousine drivers at Hoyt Livery in the past three years. Defendants are
ordered to provide this information within 15 days. I deny plaintiff’s request for an order
requiring that defendants disclose the telephone numbers of potential opt-in plaintiffs. In view of
the fact that eligible individuals will receive notification of this action via mail and email,
plaintiffs have not demonstrated any particularized reason why disclosure of telephone numbers
is also necessary. See Alli, 2011 WL 4006691, at *6 (denying plaintiffs’ request for disclosure of
telephone numbers of potential opt-in plaintiffs because plaintiffs showed “no need” for such
information). Plaintiff may renew this request only if further information indicates that the
disclosure of mailing addresses and email addresses is inadequate.
With respect to notice procedures, I approve plaintiff’s proposed notice and consent-tojoin forms absent objection. Plaintiff is authorized to send these forms by postal mail and email
twice: an initial notice may be sent to all putative class members at the outset of the notice
period, and then a second notice may be sent to any member of the collective group who has not
opted in 30 days later. The notice period shall last 60 days. While plaintiff requests a longer
notice period, I agree with defendants that 60 days is appropriate for a collective group of this

9

This is the class of persons whose potential FLSA claims are not barred by the statute of limitations. See 29 U.S.C.
§ 255(a) (providing that a FLSA cause of action “may be commenced within two years after the cause of action
accrued, and every such action shall be forever barred unless commenced within two years after the cause of action
accrued, except that a cause of action arising out of a willful violation may be commenced within three years after
the cause of action accrued”). “[T]he statute of limitations applicable to a claim for unpaid minimum wages under
FLSA runs, at most (namely, if a claim arises from a willful violation of the Act), from a date ‘three years prior to

12

size and under circumstances where neither party has suggested that there will be unusual
difficulties locating or contacting potential opt-in plaintiffs.
I deny plaintiff’s request that Hoyt Livery be ordered to post a notice of the pendency of
this collective action in its lunchroom. Plaintiff has cited no authority for requiring this intrusive
method of notice and has not explained why the posting of a notice on Hoyt Livery’s property is
necessary to reach a class of people who will already be receiving multiple mailings and emails
about their right to opt in to this case. And because I previously denied plaintiff’s request for the
disclosure of telephone numbers, I also deny plaintiff’s request for authorization to contact
potential opt-in plaintiffs by phone. Plaintiff is, however, authorized to contact potential opt-in
plaintiffs via postal mail or email to discern whether they have received the notice and to remind
them of the deadline to opt in.
2. Motion for Rule 23 Class Certification of Plaintiff’s CMWA Claim
Like the FLSA, the CMWA—Connecticut’s state wage and hour law—requires that
employers provide overtime compensation to non-exempt employees for hours worked in excess
of 40 per week. Conn. Gen. Stat. § 31-76c.10 But, unlike the FLSA, the CMWA contains no
independent “collective action” joinder mechanism. Accordingly, plaintiff moves to have his
CMWA claim certified as a class action pursuant to Fed. R. Civ. P. 23(b)(3). Plaintiff proposes
that the class consist of “[a]ll persons who have worked for Defendant Hoyt Livery, Inc. as fulltime limousine drivers at any time between October 18, 2011 and the date of final judgment in
this matter.” Doc. #22 at 1. Defendants oppose this motion, arguing that plaintiff has failed to

the date each opt-in plaintiff filed a written consent to join the action.’” O'Jeda v. Viacom, Inc., 2014 WL 1344604,
at *2 n.1 (S.D.N.Y. 2014) (quoting Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 388 (E.D.N.Y. 2010)).
10
Connecticut General Statutes § 31-76c provides: “No employer, except as otherwise provided herein,
shall employ any of his employees for a workweek longer than forty hours, unless such employee receives
remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.”

13

satisfy the requirements of Rule 23.
Because this class action has been brought pursuant to Rule 23(b)(3), the requirements of
Rule 23(a) and Rule 23(b)(3) must be satisfied. Rule 23(a) provides that
(a)

One or more members of a class may sue or be sued as representative
parties on behalf of all members only if:
(1)
the class is so numerous that joinder of all members is
impracticable;
(2)
there are questions of law or fact common to the class;
(3)
the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4)
the representative parties will fairly and adequately protect the
interests of the class.

Fed. R. Civ. P. 23(a)(1)-(4). In addition, “[a] class action may be maintained if Rule 23(a) is
satisfied and if: . . . (3) the court finds that questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.
R. Civ. P. 23(b). A plaintiff must satisfy these six Rule 23 requirements—numerosity,
commonality, typicality, adequacy, predominance, and superiority—by a preponderance of the
evidence. Myers, 624 F.3d at 547.
District courts in this Circuit regularly certify class actions based on state law labor
claims, including denial of overtime claims, when these requirements are satisfied. See, e.g.,
Shahriar, 659 F.3d at 250-53 (affirming district court order certifying class action based on
alleged violations of state labor laws); Perkins, 669 F. Supp. 2d at 222-25 (certifying class action
based on alleged violations of CMWA overtime provisions); Scott v. Aetna Servs., Inc., 210
F.R.D. 261 (D. Conn. 2002) (certifying class action based on alleged violations of CMWA
overtime provisions); Lewis v. Alert Ambulette Serv. Corp., 2012 WL 170049 (E.D.N.Y. 2012)
(certifying class action based on state law overtime, minimum wage, spread-of-hours, and

14

unlawful deductions claims); Flores v. Anjost Corp., 284 F.R.D. 112 (S.D.N.Y. 2012) (granting
in part plaintiffs’ motion for class certification of state labor law claims). And “where a
collective action under the FLSA that is based on the same facts has been approved, there is an
inclination to grant class certification of state labor law claims.” Lee v. ABC Carpet & Home,
236 F.R.D. 193, 202-03 (S.D.N.Y. 2006) (citing Ansoumana v. Gristede’s Operating Corp., 201
F.R.D. 81, 96 (S.D.N.Y. 2001)). With these standards in mind, I now turn to an analysis of each
of the six requirements for class actions brought pursuant to Rule 23(b)(3).
First, as to the mandate that the class members be sufficiently numerous, it is clear that
this does not require “that joinder of all parties be impossible—only that the difficulty or
inconvenience of joining all members of the class make use of the class action appropriate.”
Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C.,
504 F.3d 229, 244-45 (2d Cir. 2007). The evidence here indicates that the putative class—all
persons employed as full-time limousine drivers at Hoyt Livery during a three-year period—will
have about 80 members. In view of Second Circuit precedent holding that numerosity is
presumed where a putative class has 40 or more members, Consol. Rail Corp. v. Town of Hyde
Park, 47 F.3d 473, 483 (2d Cir. 1995), this proposed class easily satisfies the numerosity
requirement.
Second, plaintiff must demonstrate the existence of “questions of law or fact common to
the class.” Fed. R. Civ. P. 23(a)(2). This commonality prerequisite requires a showing that the
claims for which certification is sought “depend upon a common contention . . . [that is] of such
a nature that it is capable of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 2551 (2011). But commonality does

15

not mandate that all factual and legal questions be identical; to the contrary, just “a single
[common] question” will suffice to satisfy the requirement. Id. at 2556 (alteration in original)
(citations and internal quotation marks omitted).
I conclude that plaintiff has satisfied this standard. The central dispute in this case is this:
plaintiff claims that defendants’ compensation policy violated the CMWA, while defendants
vigorously deny that claim. But what is not disputed (and could not be disputed in view of
defendants’ concessions and ample record evidence) is that all members of the putative class
were subject to a uniform compensation policy. It is the legality or illegality of that unvarying
policy that provides the unifying thread to satisfy the commonality requirement of Rule 23(a)(2).
Other issues—how many hours a driver worked, how many trips a driver took, how each driver
will prove the amount of damages (if any) to which he is entitled—may well require
individualized inquiries. This does not, however, transform plaintiff’s single fact-based theory of
liability—the alleged illegality of an undisputed uniform compensation policy—into a series of
individualized claims. It merely means that various class members may be entitled to differing
damages (or no damages at all) if plaintiff prevails.11
Third, the typicality requirement of Rule 23(a)(3) is satisfied when “the claims of the
class representatives [are] typical of those of the class, and . . . each class member’s claim arises
from the same course of events, and each class member makes similar legal arguments to prove
defendants’ liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (citations and
internal quotation marks omitted). The Supreme Court has noted that the typicality requirement
tends to merge with the commonality requirement. See, e.g., Dukes, 131 S. Ct. at 2551 n.5.

11

Curiously, defendants claim that the commonality requirement cannot be satisfied due to the lack of
evidence that any drivers actually ever worked more than 40 hours in a given week. Doc. #29 at 21. But, as
described above, the record plausibly suffices at this time to show that multiple drivers worked more than 40 hours
per week.

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Indeed, much like commonality, typicality “does not require that the factual background of each
named plaintiff’s claim be identical to that of all class members; rather, it requires that the
disputed issue of law or fact occupy essentially the same degree of centrality to the named
plaintiff’s claim as to that of other members of the proposed class.” Caridad v. Metro-North
Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) (citations and internal quotation marks
omitted). In the denial-of-overtime-pay context, typicality is usually satisfied where the
particular claims alleged by the named plaintiff and the claims that could be asserted by
members of the putative class are “similar” and “arise from the same allegedly unlawful
practices and policies.” Espinoza v. 953 Associates LLC, 280 F.R.D. 113, 128 (S.D.N.Y. 2011).
Here, the disputed issue that is central to the claims of plaintiff and all other putative
class members is the alleged unlawfulness of Hoyt Livery’s uniform compensation policy.
Defendants have not established any factual or legal defenses to this claim that are applicable to
plaintiff but atypical of the putative class. Defendants’ only argument against a finding of
typicality is the fact that each class member “will have individualized information concerning the
issue of whether or not they in fact ever worked more than 40 hours a week, and how to
determine which weeks that may have occurred . . . .” Doc. #29 at 22. But because “differences
in damages will not destroy typicality,” 5 Moore’s Federal Practice § 23.24[5], this argument is
without merit. See also Espinoza, 280 F.R.D. at 128 (“Typicality is satisfied despite differences
in damages arising from a disparity in injuries among the class members.”). Plaintiff has satisfied
the typicality requirement.
Fourth, I find that the adequacy prerequisite of Rule 23(a)(4) has been satisfied. This
requirement is met where (1) class counsel is “qualified, experienced, and able to conduct the
litigation” and (2) plaintiff has no “interests . . . antagonistic to the interest of other members of

17

the class.” Baffa v. Donaldson, Lufkin, & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)
(citing In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992)). Defendants
do not contest the adequacy of class counsel, and I find that this first prong has been satisfied
because plaintiff’s attorneys have shown that they are qualified to handle the case.12
Defendants, however, dispute adequacy on grounds that the employment and earnings
prospects of some potential class members may be adversely affected if this action goes forward.
Defendants point to the driver affidavits, in which 12 current Hoyt Livery limousine drivers state
that they “disagree” with plaintiff’s claim and that they “do not believe that [plaintiff] or any
other driver who is claiming overtime will adequately protect [their] interests” because “[i]f the
definition of what ‘work’ consists of is too broad, then the drivers will face the risk of being cut
off from further trips during a week when they have worked 40 hours.” Doc. #29-2 ¶¶ 3, 12.
While I am sympathetic to the drivers’ desires to work as many hours as possible and earn as
much pay as possible, I fail to see how the fact that some drivers are happy with defendants’
current compensation policy creates a conflict between plaintiff and putative class members. If
defendants’ compensation policy proves to be illegal, it is of no moment that some employees
happen to like it.
Defendants also claim that the second adequacy prong is not satisfied because plaintiff is
an inadequate class representative. Defendants note that, in his deposition, plaintiff testified that
he does not know whether and in which weeks other drivers worked more than 40 hours. To be
sure, the Second Circuit has held that class representative status is “properly . . . denied ‘where
the class representatives have so little knowledge of and involvement in the class action that they

12

“In determining the adequacy of counsel, the court looks beyond reputation built upon past practice and
examines counsel’s competence displayed by present performance.” Velez v. Novartis Pharm. Corp., 244 F.R.D.
243, 268 (S.D.N.Y. 2007), amended (Aug. 16, 2007) (quoting In re Towers Fin. Corp. Noteholders Litig., 177
F.R.D. 167, 171 (S.D.N.Y. 1997)). In addition to their experience with class action cases involving wage and hour

18

would be unable or unwilling to protect the interests of the class against the possibly competing
interests of the attorneys.’” Baffa, 222 F.3d at 61 (quoting Maywalt v. Parker & Parsley
Petroleum Co., 67 F.3d 1072, 1077-78 (2d Cir. 1995)). But that is clearly not the situation here.
Plaintiff was an employee at Hoyt Livery for several years and has ample knowledge of the
company’s workplace practices and compensation policies. Moreover, his willingness to sit for a
deposition and participate in discovery indicates his ongoing involvement in the case. Plaintiff is
an appropriate class representative, and the adequacy requirement has been satisfied.
The fifth requirement, predominance, has also been satisfied. This prerequisite is met “‘if
resolution of some of the legal or factual questions that qualify each class member’s case as a
genuine controversy can be achieved through generalized proof, and if these particular issues are
more substantial than the issues subject only to individualized proof.’” Myers, 624 F.3d at 547
(quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)). While the
predominance requirement is “more stringent” and “far more demanding” than the commonality
requirement of Rule 23(a)(2), Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 609, 623-24
(1997), the existence of some individualized issues that are not “susceptible to classwide proof”
is permissible so long as “common questions predominate over any questions affecting only
individual class members,” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, __ U.S. __, 133
S. Ct. 1184, 1196 (2013) (citations and internal quotation marks omitted).
Predominance is often satisfied in wage and hour cases because liability is usually a
common issue, and the only individualized questions involve damages calculations. Because
wage claims often turn on uniform policies and practices, “numerous courts have found that
[such] claims are especially suited to class litigation—perhaps the most perfect questions for
class treatment—despite differences in hours worked, wages paid, and wages due.” Ramos v.

claims, plaintiff’s attorneys to date have demonstrated competence and skill while litigating this case.

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SimplexGrinnell LP, 796 F. Supp. 2d 346, 359 (E.D.N.Y. 2011) (internal quotation marks
omitted) (citing cases).
For example, in Shahriar, 659 F.3d at 253, the Second Circuit found ample support for a
district court’s finding that the predominance requirement was satisfied in a class action
challenging the legality of an employer’s tip practices. The court of appeals noted that
“[p]laintiffs have alleged that all servers were subject to [the employer’s] uniform tip-sharing or
tip-pooling system. . . . [The employer] has not denied that all servers were subject to its uniform
tip practices, and [p]laintiffs support the allegation that all class plaintiffs were subject to the
same uniform tip practices with [documentary evidence].” Id. These liability issues
predominated over “individualized damages issues.” Id. By contrast, in cases where liability
issues are subject to individualized issues and individualized proof, courts are less likely to find
that the predominance prerequisite has been satisfied. For example, in Myers, 624 F.3d at 548–
51, the court of appeals affirmed a district court’s finding that the predominance requirement had
not been satisfied in a denial-of-overtime-pay case due to the lack of convincing evidence that
the putative class of managers (all of whom the employer had classified as exempt employees)
had materially consistent job duties.
The circumstances here are much closer to those in Shahriar than those in Myers. It is
undisputed that all full-time limousine drivers at Hoyt Livery had the same job duties and were
compensated pursuant to the same pay plan. The legality or illegality of this plan is the central
liability issue in the case, and the evidence necessary to demonstrate liability will be common to
all class members.
Nonetheless, defendants argue that plaintiff has not satisfied the predominance standard
due to a number of “subsidiary issues” not susceptible to classwide proof. Doc. #29 at 25. Most

20

notably, they claim that individual inquiries will be necessary to determine which activities
(“deadheading”, a first hour waiting at an airport, maintaining an assigned vehicle, etc.)
constitute compensable work time, and they claim that determining a method for calculating the
hours worked for each driver will be a “monumental and fact sensitive inquiry for each driver of
the potential class.” Id. I do not agree. To the contrary, it seems to me that these issues are best
resolved on a classwide basis. Once it is determined which types of activities are compensable
and how to calculate the hours for which a driver should have been compensated, damages for
each driver will be a mere question of “arithmetical calculations based on . . . records and other
documentary evidence.” See Ramirez v. Riverbay Corp., __ F. Supp. 2d __, 2014 WL 3800886,
at *10 (S.D.N.Y. 2014).
I also recognize that the damages inquiry could prove challenging in this case due to
defendants’ failure to keep hourly time records of its drivers. But there is no indication that any
driver would use some particular kind of evidence specific only to him or her in order to prove
what hours they worked. Even if some drivers do attempt to use unique evidence (such as an
affidavit attesting to hours he or she personally worked) to prove damages, there is no indication
that these individualized damages inquiries would predominate over generalized liability issues
affecting the whole class. The predominance requirement is satisfied.
Sixth and finally, I find that the superiority requirement is satisfied because a class action
is the best method for adjudicating this controversy. “[T]he Supreme Court has [recognized that]
Rule 23(b)(3) class actions can be superior precisely because they facilitate the redress of claims
where the costs of bringing individual actions outweigh the expected recovery.” In re U.S.
Foodservice Inc. Pricing Litig., 729 F.3d 108, 130 (2d Cir. 2013) (citing Amchem Prods, Inc.,
521 U.S. at 617), cert denied, __ U.S.__, 134 S.Ct. 1938 (2014). Such is the case here, because

21

the relatively modest damages that might be recovered by any single driver would likely make
the cost of individual litigation prohibitive.13
I also believe that class members who still work at Hoyt Livery might be reluctant to
bring claims on their own in fear of retaliation by their employer. See Scott, 210 F.R.D. at 268
(superiority requirement satisfied in CMWA denial-of-overtime case because “class members
may fear reprisal and would not be inclined to pursue individual claims”). This is not to say that I
believe that defendants are engaging in or would engage in any retaliatory conduct. But the
power differential between an employer and an employee is undeniable, and any employee
would be reluctant to bring a lawsuit against the entity that continues to pay his or her salary. For
these and other reasons, I am convinced that resolving this dispute as a class action will be better
than litigating the same core common issues in a flurry of individual cases.
Because the requirements of Rule 23(a) and (b)(3) are satisfied, plaintiff’s motion for
class certification is granted. This Court certifies a class consisting of the following individuals:
All persons who have worked for Defendant Hoyt Livery, Inc. as full-time limousine drivers at
any time between October 18, 2011 and the date of final judgment in this matter. Plaintiff is
appointed as class representative. Plaintiff’s lawyers are appointed as class counsel. Plaintiff’s
proposed notice and opt-out forms are approved absent objection, except that plaintiff shall
modify the notice as follows: (1) the docket number on pages 1 and 3 should read “3:13-cv01529-JAM”; (2) the name “Ocean State” on page 2 should be changed to “Hoyt”; and (3) the
order shall reflect that it was signed by me, and not by Judge Shea (who formerly presided over
this case). Within the next 15 days, defendants are ordered to disclose to plaintiff the names of
all persons who have been employed as full-time limousine drivers at Hoyt Livery since October

13

At oral argument, plaintiff’s counsel estimated that plaintiff’s individual damages are likely to be around
$17,000. Counsel also represented that Pierce’s damages are likely to be “substantially lower” than this sum, while

22

18, 2011, as well as the last known mailing addresses and email addresses of these individuals.14
Plaintiff shall send the notice and opt-out forms to class members via postal mail and email at the
outset of the “opt-out” period. This period shall last 60 days, and run coextensively with the
FLSA “opt-in” notice period.
Conclusion
For the reasons and to the extent set forth above, I GRANT plaintiff’s motions for
conditional certification of a FLSA collective action and certification of a Rule 23 class action.
Defendants shall disclose to plaintiff the names and contact information for potential FLSA optin plaintiffs and Rule 23 class members within 15 days. The notice period—that is, the period
during which individuals may “opt in” to the FLSA collective action or “opt out” of the Rule 23
class action—shall begin on October 2, 2014, and conclude on December 2, 2014.
It is so ordered.
Dated at Bridgeport this 17th day of September 2014.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

Dupee’s damages are likely “slightly higher.” Though not insignificant, these damages are fairly small.
14
These individuals will be mostly the same people that defendants must disclose to plaintiff in connection
with the FLSA collective group. The only difference between that group and this one is that FLSA “opt-in” notice
should go to those people who worked for Hoyt Livery as full-time limousine drivers in the three years prior to
today’s date, while Rule 23 “opt-out” notice should be sent to all those worked for Hoyt Livery as full-time
limousine drivers since October 18, 2011. These dates are only about a month apart, and so the lists are likely to
heavily overlap. Accordingly, defendants may produce a single list that contains names and contact information for
both groups. If defendants chose to submit one list, they shall note on that list whether each individual is a potential
opt-in plaintiff in the FLSA collective group, a member of the Rule 23 class, or a member of both groups.

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