Chebotnikov v. LimoLink, Inc.
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs' Motion for Class Certification is GRANTED in part and DENIED in part. (Schultz, Allison)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EUGENE PANTYUKHIN, and YOGESH
SHARMA, on behalf of themselves
and others similarly situated,
Civil Action No.
MEMORANDUM AND ORDER ON
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
This is a putative class action alleging violations of Massachusetts wage laws and the Fair
Labor Standards Act (“FLSA”). Defendant LimoLink, Inc., is a company that, in substance,
provides a platform for customers seeking to use limousine services. The named plaintiffs are
three limousine drivers who operate their own limousine companies and, through those
companies, contracted with LimoLink to provide limousine services to its customers. The
plaintiffs allege, among other things: (1) that LimoLink failed to distribute to them all gratuities
paid by its customers, in violation of the Massachusetts Tips Act, Mass Gen. Laws ch. 149, §
152A, and (2) that LimoLink misclassified them as independent contractors, in violation of both
the FLSA and Massachusetts Independent Contractor Statute, Mass. Gen. Laws ch. 149, § 148B.
Plaintiffs have moved to certify two classes pursuant to Fed. R. Civ. P. 23. The first
putative class (the “Tips Class”) consists of the 36 vendors who provided rides for LimoLink
customers in Massachusetts and have not received the total proceeds of gratuities paid by
customers since August 27, 2011. The second putative class (the “Misclassification Class”)
consists of 17 individual drivers, designated by LimoLink as “independent operators,” whom
LimoLink has classified as independent contractors since August 27, 2011. For the following
reasons, the motion to certify will be granted as to the Tips Class and denied as to the
The facts are set out fully in this Court’s prior Memorandum and Order on Cross-Motions
for Summary Judgment. (See Docket No. 156 at 2-11).
Under Rule 23, class certification is appropriate “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). In addition, because it appears that plaintiffs seek certification
pursuant to Rule 23(b)(3), they must also establish 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)(3). Plaintiffs must establish each of those elements; failure
to establish any one will defeat class certification. See Smilow v. Southwestern Bell Mobile Sys.,
Inc., 323 F.3d 32, 38 (1st Cir. 2003).
The Tips Class
It appears that certification is appropriate as to the Tips Class. As to numerosity, the
putative class includes 36 vendors. In addition, the class encompasses not only individual
operators but also medium and large fleet vendors, it is likely that the number of actual drivers
included in the class is far higher. Thus, the numerosity requirement is satisfied. See In re
Relafen Antitrust Litig., 218 F.R.D. 337, 342 (D. Mass. 2003) (noting that class of forty
individuals is “generally found to establish numerosity”).
Second, it appears that there are common questions of law and fact. Whether LimoLink
violated the Massachusetts Tips Act depends primarily upon whether LimoLink charged a
gratuity to its customers, whether it remitted that gratuity to individuals other than the drivers,
and whether the drivers have any managerial responsibilities for LimoLink. See Mass Gen.
Laws ch. 149, § 152A(A)(a), (d). It is undisputed that, prior to 2014, LimoLink had a policy of
charging its customers a gratuity and that LimoLink retained such charges as part of its general
revenue stream. (Vittetoe Dep. at 192-93, 195-96). There is, therefore, no reason to think that
the resolution of those factual inquiries will vary between class members. Furthermore, there
does not appear to be any reason to anticipate variation in the managerial responsibilities—or
lack thereof—between the different drivers. As noted in the Court’s Memorandum and Order on
Cross-Motions for Summary Judgment, the relevant question is whether the drivers possess
managerial responsibilities on behalf of LimoLink, not on behalf of their own independent
limousine companies. (See Docket No. 156 at 19-20). Based on the record before the Court,
there does not appear to be any reason to think some drivers possess such responsibilities while
others do not.
Third, it appears that the typicality requirement is satisfied. “The typicality requirement
is satisfied when the [named] plaintiff[s’] injuries arise from the same events or course of
conduct as do the injuries that form the basis of the class claims, and when the plaintiff[s’]
claims and those of the class are based on the same legal theory.” Guckenberger v. Boston
Univ., 957 F. Supp. 306, 325 (D. Mass. 1997) (internal quotation marks omitted) (first alteration
original). Here, the alleged injuries—the denial of tips—all arise out of the same course of
conduct, which is LimoLink’s practice of charging gratuities and retaining those gratuities as part
of its general revenue stream. Furthermore, the same legal theory, the violation of the
Massachusetts Tips Act, underpins all class claims.
Fourth, there is no reason to doubt that the named plaintiffs will adequately represent the
interests of the class. There are two elements to the adequacy requirement: “The moving party
must show first that the interests of the representative party will not conflict with the interests of
any of the class members, and second, that counsel chosen by the representative party is
qualified, experienced and able to vigorously conduct the proposed litigation.” Andrews v.
Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985). Here, plaintiffs have adequately
established that all class members have the same interest in receiving gratuities allegedly owed to
them and that there is no apparent conflict of interest between themselves and the other class
members as to the tips claim. Furthermore, plaintiffs’ chosen lead counsel, Hillary Schwab,
appears to be a qualified and experienced attorney in the areas of employment law and class
Fifth, it appears that common questions of law or fact predominate over questions
concerning only individual class members. As noted above, the relevant questions—whether
LimoLink charged a gratuity to its customers, whether it remitted that gratuity to individuals
other than service employees, and whether the drivers have any managerial responsibilities on
behalf of LimoLink—appear to be common to all class members. Thus, “a sufficient
constellation of common issues binds [the] class members together,” such that certification is
appropriate under the predominance requirement of Rule 23(b)(3).
Finally, it appears that a class action is superior to other available methods of
adjudication. Given the common questions of law and fact, a class action will more efficiently
resolve the Tips Act claims than would a series of individual cases. Furthermore, as plaintiffs
contend, a class adjudication is often superior in the employment context where the risk of
employer reprisal may deter employees from brining claims on an individual basis. See Overka
v. American Airlines, Inc., 265 F.R.D. 14, 24 (D. Mass. 2010). Accordingly, plaintiffs’ motion
to certify will be granted as to the Tips Class.
The Misclassification Class
Plaintiffs have also moved to certify a class consisting of 17 individual drivers (referred
to by LimoLink as “independent operators”) who LimoLink has allegedly misclassified as
independent contractors rather than employees. However, plaintiffs have failed to establish all of
the elements required for certification as to this putative class.
First, the relatively low number of putative class members, combined with their ease of
identification and geographic proximity, suggests that the numerosity requirement is not satisfied
and that joinder is feasible. See Andrews, 780 F.2d at 131-32.
Second, and more importantly, there are not common questions of fact “‘capable of class
wide resolution—which means that determination of [the question’s] truth or falsity will resolve
an issue that is central to the validity of each one of the claims in one stroke.’” Pagliaroni v.
Mastic Home Exteriors, Inc., 2015 WL 5568624, at *10 (D. Mass. Sept. 22, 2015) (quoting Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Determining whether LimoLink
misclassified its independent operators requires an individualized and fact-intensive inquiry. For
example, the size and nature of each individual operator’s own limousine business as well as
whether each individual operator had the opportunity to negotiate the terms of LimoLink’s
service agreement will affect the analysis of whether they were misclassified as independent
contractors. Because the answers to those central questions are not capable of classwide
resolution, certification is inappropriate as to the Misclassification Class.
For the reasons stated above, the motion for class certification of plaintiffs Chebotnikov,
Pantyukhin, and Sharma is GRANTED as to the Tips Class and DENIED as to the
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: July 6, 2017
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