Morris et al v. ALLE PROCESSING CORP. et al
ORDER granting 52 Motion to Certify Class. For the reasons stated in the attached Memorandum and Order, the Court grants plaintiffs' motion for class certification, pursuant to Federal Rule of Civil Procedure 23, based on plaintiffs' stat e law claims. However, plaintiffs' request for the Court to authorize their proposed form is denied. The parties are directed to submit, within fourteen (14) days of this Order, a jointly proposed notice including, but not limited to, the revision of listing the undersigned as the presiding judge. Ordered by Magistrate Judge Joan M. Azrack on 5/6/2013. (Minarcik, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KINGBORN MORRIS, RAFAEL MATEO, and
DARNELL PIERRE, on behalf of all other persons
similarly situated who were employed by ALLE
PROCESSING CORP., ALBERT WEINSTOCK,
EDWIN WEINSTOCK, SAM HOLLANDER, and
For Online Publication Only
-againstALLE PROCESSING CORP., ALBERT WEINSTOCK,
EDWIN WEINSTOCK, SAM HOLLANDER, and
A P P E A R A N C E S:
LaDonna Marie Lusher
Lloyd Robert Ambinder
Virginia & Ambinder LLP
111 Broadway, 14th Floor
New York, NY 10006
Attorneys for Plaintiffs
Jeffery A. Meyer
Kaufman, Dolowich, Voluck, & Gonzo, LLP
135 Crossways Park Drive, Suite 201
Woodbury, NY 11797
Attorney for Defendants
AZRACK, United States Magistrate Judge:
Plaintiffs Kingborn Morris, Rafael Mateo, and Darnell Pierre, former employees of
defendant Alle Processing Corporation (“Alle”), bring this action on behalf of a putative class
against Alle, Albert Weinstock, Edwin Weinstock, Sam Hollander, and Mendel Weinstock
(collectively, the “defendants”).
Plaintiffs allege that defendants violated the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207, by failing to pay overtime wages and New York
Labor Law (“NYLL”) § 193, Title 12 of New York Codes, Rules and Regulations (“NYCRR”)
§§ 142–2.2 and 142–2.4, and Title 6 of New York City Administrative Code § 6–109 by failing
to pay earned wages, overtime wages, and spread of hours compensation.
On December 22, 2009, this Court conditionally certified a collective action for
plaintiffs’ federal law claim, pursuant to the FLSA, 29 U.S.C. § 216(b). Dec. 22, 2009 Order,
ECF No. 20. Currently before the Court is plaintiffs’ motion for class certification, pursuant to
Federal Rule of Civil Procedure 23, for plaintiffs’ state law claims. Plaintiffs also request
authorization to send their proposed notice to prospective class members.
For the reasons set forth below, the Court grants plaintiffs’ motion for class certification.
Alle is a New York corporation with its principal location, a food processing plant (the
“plant”), located at 56-20 59th Street, Maspeth, New York. Compl. ¶¶ 11, 25, ECF No. 1.
Individual defendants Albert Weinstock, Edwin Weinstock, Sam Hollander, and Mendel
Weinstock are officers and principal shareholders of Alle. Id. ¶¶ 13–16. Alle is “a vertically
integrated firm, engaged in the slaughtering, processing selling and distributing of Glatt Kosher
fresh and frozen beef, veal, lamb and poultry.” Pls.’ Mem. in Supp. Mot. for Class Certification
(“Pls.’ Mem.”) at 2 (quoting www.alleprocessing.com), ECF No. 54.
Plaintiffs are former food service employees of defendants’ plant.
Compl. ¶ 25.
Plaintiffs allege that defendants failed to pay them and other current and former Alle employees:
(1) minimum wages for all hours worked, including (a) time spent donning and doffing uniforms
and (b) time defendants shaved from employees’ time cards; (2) overtime compensation at time-
and-a-half the regular hourly wage for all hours worked beyond forty each week; and (3) spread
of hours compensation for hours worked over ten in a single day. Id. ¶¶ 2, 39–40; Pls.’ Mem. at
2; Pls.’ Reply Mem. in Supp. Mot. Class Cert. (“Pls.’ Reply”) at 1–2, ECF No. 51. Plaintiffs
Morris and Mateo have submitted declarations in support of the instant motion.
Kingborn Morris (“Morris Decl.”), Decl. of LaDonna Lusher in Supp. Pls.’ Mot Class Cert.
(“Lusher Decl.”) Ex. 1, ECF No. 53; Decl. of Rafael Mateo (“Mateo Decl.”), Lusher Decl. Ex. 2.
Morris worked at the plant from December 2007 until May 2008, during which time he
worked in the Food Processing Department, the Freezer Department, and the Smoke House
Department. Morris Decl. ¶¶ 3–4. Every day Morris was required to wear a uniform consisting
of a coat, boots, gloves, hairnet, hardhat, jacket, and glasses. Id. ¶ 10. Morris typically worked
no fewer than ten hours per day, six days per week, and was paid $7.15 per hour by check. Id. ¶¶
Mateo worked at the plant from July 2006 until November 2009, during which time he
worked in the Chicken Department. Mateo Decl. ¶ 3; Pls.’ Mem. at 2. Mateo was also required
to wear a uniform, which consisted of a coat, boots, gloves, hairnet, and hardhat. Id. ¶ 9. Mateo
typically worked no fewer than ten hours per day on Monday through Thursday and no less than
seven hours per day on Fridays. Id. ¶ 6. Morris was paid $9.00 per hour by check. Id. ¶ 12.
Both Morris and Mateo maintain that during their respective periods of employment Alle
employed several hundred other individuals. Morris Decl. ¶ 6 (claiming approximately 300
other employees); Mateo Decl. ¶ 5 (claiming approximately 500 other employees). They claim
that these employees usually performed tasks similar to those performed by plaintiffs. Morris
Decl. ¶ 6; Mateo Decl. ¶ 5.
Morris and Mateo also claim that they received neither overtime compensation for all of
the hours worked over forty each week nor an extra hour of pay when they worked over ten
hours in a day. Morris Decl. ¶¶ 14–15; Mateo Decl. ¶¶ 13–14. They believe that defendants also
failed to properly pay their co-workers for all hours worked because Morris and Mateo
personally witnessed other employees working over forty hours each week and more than ten
hours per day. Morris Decl. ¶ 17; Mateo Decl. ¶ 16.
Both also state that their respective supervisors told them to punch in after they put on
their uniform and to punch out before taking off their uniform. Morris Decl. ¶ 12; Mateo Decl.
¶ 11. As a result, Morris and Mateo claim they were never paid for the time they spent putting
on and taking off their uniforms. Morris Decl. ¶¶ 10–11, 16 (claiming approximately thirty
minutes each day spent putting on and taking off uniform); Mateo Decl. ¶¶ 9–10, 15 (claiming
approximately sixty minutes spent each day putting on and taking off uniform). They each
witnessed other workers put on their uniforms before punching in and taking off their uniforms
after punching out. Morris Decl. ¶¶ 10–11 (claiming he personally witnessed no fewer than
thirty to forty other workers follow this practice); Mateo Decl. ¶¶ 9–10, 15 (claiming he
personally witnessed no fewer than thirty workers follow this practice).
Morris and Mateo further maintain that many of Alle’s employees were foreign-born,
non-English speaking immigrants, who are unfamiliar with the American legal system and might
be afraid to pursue claims for unpaid wages on their own. Morris Decl. ¶ 18; Mateo Decl. ¶ 17.
They also note that many employees worked at Alle for only a short period of time. Morris Decl.
¶ 18; Mateo Decl. ¶ 17.
Additionally, four employees, who have opted into the FLSA collective action, Effrain
Irizarry, David Benito, Kenneth Patterson, and Robert Carl Lanza (collectively “opt-in
declarants”), have submitted declarations claiming that they were not paid their proper wages.
Decl. of Effrain Irizarry (“Irizarry Decl.”) ¶ 3, Lusher Decl. Ex. 3; Decl. of David Benito
(“Benito Decl.”) ¶ 3, Lusher Decl. Ex. 4; Decl. of Kenneth Patterson (“Patterson Decl.”) ¶ 3,
Lusher Decl. Ex. 5; Decl. of Robert Carl Lanza (“Lanza Decl.”) ¶ 3, Lusher Decl. Ex. 6. These
opt-in declarants worked in different departments, earned different hourly wages, and worked
different hours. See Irizarry Decl. ¶¶ 5, 7, 15; Benito Decl. ¶¶ 5, 8, 17; Patterson Decl. ¶¶ 6, 8,
16, 17; Lanza Decl. ¶¶ 5, 8, 16. Each opt-declarant was required to wear a uniform. Irizarry
Decl. ¶ 10 (apron, boots, helmet, hairnet, and gloves); Benito Decl. ¶ 12 (apron, boots, hardhat,
hairnet, gloves, and coat); Patterson Decl. ¶ 11 (boots, gloves, freezer suit, and back brace);
Lanza Decl. ¶ 11 (boots, hardhat, hairnet, gloves, and coat). However, they each claim that their
supervisors told them to punch in after they put on their uniform and to punch out before taking
off their uniform and that, as a result, they were not paid for the time spent putting on or taking
off their uniform. Irizarry Decl. ¶¶ 10, 12–14; Benito Decl. ¶¶ 12, 14–16; Patterson Decl. ¶¶ 11,
13–15; Lanza Decl. ¶¶ 11, 13–15. Each of these opt-in declarants personally witnessed other
workers following the same practice. Irizarry Decl. ¶ 11; Benito Decl. ¶ 13; Patterson Decl.
¶ 12; Lanza Decl. ¶ 12.
Further, each opt-in declarant claims that he was not paid an additional hour of pay when
he worked over ten hours per day. Irizarry Decl. ¶ 16; Benito Decl. ¶18; Patterson Decl. ¶ 18;
Lanza Decl. ¶ 18. Opt-in declarant Lanza also claims that he was not paid overtime for all of the
hours he worked over forty each week. Lanza Decl. ¶ 17. Like Morris and Mateo, each opt-in
declarant alleges that many of the Alle employees were foreign-born, non-English speaking
immigrants who might be afraid to sue, and that many employees worked at Alle for only a short
period of time. Irizarry Decl. ¶ 17; Benito Decl. ¶ 19; Patterson Decl. ¶ 19; Lanza Decl. ¶ 19.
In addition to these declarations, plaintiffs have submitted employee time cards for
named plaintiffs Mateo and Pierre, opt-in declarants Irizarry and Benito, and several other opt-in
plaintiffs. Lusher Decl. Exs. 9–15; Reply Decl. of LaDonna Lusher in Supp. Pls.’ Mot Class
Certification (“Lusher Reply Decl.”) Exs. 1–3. The time cards, which each cover a week-long
period, indicate when an employee punched in and out each day and the total hours the employee
worked. See e.g., Mateo Employee Time Card, Lusher Decl. Ex. 9. The time cards also have a
“punch audit summary” that records when an employee’s punch in or out time has been altered.
Id. Almost every time card reflects at least one punch in time having been changed to a later
time, resulting in fewer total hours for that week. See Lusher Decl. Exs. 9–15; Lusher Reply
Decl. Exs. 1–3. Based on these alterations, plaintiffs claim that defendants illegally shaved time
from the employees’ time records. Pls.’ Mem. at 6.
Defendants, in response, have submitted an affidavit from Ivan Talavera, Alle’s Plant
Manager and Director, which is the same affidavit defendants submitted in opposition to
plaintiffs’ motion for conditional certification of the collective action in this case. Aff. of Ivan
Talavera (“Talavera Aff.”), Affirm. of Jeffery A. Meyer in Opp. to Mot. Class Certification
(“Meyer Affirm.”) Ex. A, ECF No. 49. In short, Talavera asserts that: (1) plaintiffs do not share
common characteristics with other Alle employees because of the various departments, work
duties, and job descriptions at Alle, id. ¶ 9; (2) the only clothes Alle employees put on prior to
punching in are boots, a hardhat, and a coat, which takes one and a half minutes to put on, and
there is no policy that they must put these clothes on before punching in, id. ¶¶ 11, 13, 20;
(3) Alle employees are paid at the proper overtime rate when they work in excess of forty hours
per week, id. ¶¶ 29–30; and (4) adjustment to punch in times “may be made from time to time”
when it was “impossible for an employee to work” on a production line before the line started at
a specific time, when employees punched in for co-workers, or when employees refused to
punch in or out for a shift, id. ¶ 31.
Defendants have also submitted disciplinary reports for Mateo and Pierre, Meyer Affirm.
Exs. E, G, and evidence regarding recent union activity at Alle, id. Exs. B–H. In November
2008, the National Labor Relations Board (the “NLRB”) held an election to certify the Local 342
United Food and Commercial Workers (the “Union”) as the exclusive collective bargaining
representative of Alle’s employees. Id. ¶¶ 6, 8; NLRB Tally, Meyer Affirm. Ex. C. The result of
the election was in favor of Alle, with a majority of Alle’s employees voting against Union
representation. See NLRB Tally. Mateo and Pierre not only supported the Union but utilized
Union representation in unfair labor practice charges against Alle. See Meyer Affirm. ¶¶ 10–14;
id. Exs. D, F.
Specifically, the Union, on behalf of Mateo and Pierre, alleged that both
employees were terminated due to supporting the Union and engaging in Union activity. Meyer
Affirm. ¶¶ 10, 13; id. Exs. D, F. Defendants point to the disciplinary reports against Mateo and
Pierre to show that both were terminated because of their disciplinary records. Meyer Affirm.
¶¶ 11, 13.
Defendants did not submit any time cards or payroll records. See Meyer Affirm. Exs.
2. Procedural History
On September 8, 2009, plaintiffs moved to conditionally certify a collective action
pursuant to the FLSA, 29 U.S.C. § 216(b), which the Honorable Sandra L. Townes referred to
me for decision.
By Order dated December 22, 2009, I granted plaintiffs’ motion to
conditionally certify a collective action finding that plaintiffs had demonstrated that they were
similarly situated by alleging that: “(1) a large number of Alle employees worked over 40 hours
a week; (2) Alle routinely did not pay plaintiffs for work performed in excess of 40 hours; (3) a
majority of Alle employees originate from foreign countries; and (4) defendants did not assert
individualized defenses against specific class members.” Dec. 22, 2009 Order at 4. By the same
Order, I authorized plaintiffs’ proposed notice to putative class members. Id. at 6.
Pursuant to my Publication Order dated January 5, 2010, defendants furnished a list
containing the names and addresses of 2,000 individuals employed by Alle from December 3,
2002 through the present. Jan. 5, 2010 Order ¶ 2, ECF No. 23; Lusher Decl. ¶ 2 n. 1. Plaintiffs
subsequently sent notice of the collective action to these individuals. Lusher Decl. ¶ 2 n. 1; Pls.’
Mem. 7 n. 4. Seventy-eight of the 2,000 potential claimants opted into the collective action (the
“opt-ins” or “opt-in plaintiffs”). See Notice of Consent Filings, ECF No. 25; Consent to Class
Action, ECF No. 26.
On September 13, 2011, during settlement negotiations, the parties consented to my
conducting all further proceedings in this case. 1 Consent to Magistrate Judge, ECF No. 32.
Recently, on September 19, 2012, defendants served offers of judgment on the named
plaintiffs and opt-ins. Meyer Affirm. ¶ 4. As of October 19, 2012, thirty-three opt-in plaintiffs,
including Benito and Irizarry, accepted defendants’ offer. Id. ¶ 5.
Plaintiffs now move for class certification, pursuant to Federal Rule of Civil Procedure
23, of a class of Alle employees based on plaintiffs’ state law claims. Plaintiffs’ proposed class
All individuals who performed work as food service employees
and in other related trades for Defendant Alle Processing Corp.
(“ALLE”) at their food processing facility in Maspeth, New York
from December 3, 2005 through the present (the “Class”).
Both plaintiffs’ notice of motion and their proposed notice for potential class members incorrectly state that this
case is before the Honorable Sandra L. Townes. Notice of Mot., ECF No. 52; Proposed Notice, Lusher Decl. Ex. 7.
As discussed infra, plaintiffs are directed to revise their proposed order accordingly.
Corporate officers, shareholders, directors, and administrative
employees are not part of the defined class.
Lusher Decl. ¶ 1.
To certify the class requested by plaintiffs, the Court must find that plaintiffs have
satisfied the four prerequisites of Federal Rule of Civil Procedure 23(a) and one of the three
prerequisites of Rule 23(b). Garcia v. Pancho Villa’s of Huntington Village, Inc., 281 F.R.D.
100, 104 (E.D.N.Y. 2011) (citing Fed. R. Civ. P. 23).
The requirements of Rule 23(a) are as follows: (1) the class is so numerous that joinder 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 or the class; and
(4) the representative parties will fairly and adequately protect the interests of the class. Fed. R.
Civ. P. 23(a). Further, although it is “not explicitly spelled out in Rule 23, courts have added an
‘implied requirement of ascertainability’ with respect to the class definition.”
Faxton-St. Luke’s Healthcare, 274 F.R.D. 385, 393 (N.D.N.Y. 2011) (quoting In re Initial Pub.
Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006)).
The relevant subsection of Rule 23(b) requires 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 bear the burden of establishing each of these requirements. Garcia, 281 F.R.D.
at 104 (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006)). While courts
have wide discretion in deciding whether to certify a class, id. at 104, they still must undertake a
“rigorous analysis” to ensure that the requirements of Rule 23 have been satisfied, Wal-Mart
Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Southwest v.
Falcon, 457 U.S. 147, 161 (1982)). Additionally, while courts “should not assess any aspect of
the merits unrelated to a Rule 23 requirement,” certification “can be made only if the judge
resolves factual disputes relevant to each Rule 23 requirement and finds that whatever
underlying facts are relevant to a particular Rule 23 requirement have been established.” In re
Initial Pub., 471 F.3d at 41.
Courts in this Circuit have displayed “a preference for granting rather than denying class
certification.” Gortat v. Capala Bros., (“Gortat I”), 257 F.R.D. 353, 361 (E.D.N.Y. 2009) (citing
Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 203 (E.D.N.Y. 2005)); see
Marisol A. v. Giuliani, 126 F.3d 372, 277 (2d Cir. 1997). Moreover, “where a collective action
under the FLSA that is based on the same set of facts has been approved there is an inclination to
grant class certification of state labor law claims.” Garcia, 281 F.R.D. at 104–05 (quoting Lee,
236 F.R.D. at 202–03); cf. Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 163 (S.D.N.Y. 2008)
(“[C]ourts in the Second Circuit routinely certify class action[s] in FLSA matters so that New
York State and federal wage and hour claims are considered together.”) (collecting cases).
A. A Rule 23 Class Action is Appropriate Under New York Labor Law
As an initial matter, defendants contend that Rule 23 class certification should be denied
because New York Labor Law (“NYLL”) does not permit class actions seeking liquidated
damages. Defs.’ Mem. in Opp’n to Mot. Class Certification (“Defs.’ Mem.”) at 6 (citing Foster
v. Food Emporium, No. 99–CV–3860, 2000 WL 1737858, at *3 (S.D.N.Y. Apr. 26, 2000)), ECF
No. 48. Section 901(b) of New York’s Civil Practice Law and Rules (“NYCPLR”) precludes the
use of the class action mechanism where the underlying statute provides for a penalty of
liquidated damages. Here, plaintiffs’ NYLL claims provide for liquidated damages. See N.Y.
Lab. L. §§ 198, 663.
In response, plaintiffs argue that “[c]ourts in this circuit have held that New York law
allows plaintiffs to waive their liquidated damages claim for overtime wage class actions ‘as long
as putative class members are given the opportunity to opt out of the class in order to pursue their
own liquidated damages claims.’” Pls.’ Reply at 10 (quoting Iglesias-Mendoza v. La Belle
Farm, Inc., 239 F.R.D. 363, 373–74 (S.D.N.Y. 2007)). Plaintiffs, however, do not need to waive
their claims to liquidated damages in light of the Supreme Court’s decision in Shady Grove
Orthopedics Assocs. P.A., v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431 (2010)—a case of
which plaintiffs are apparently unaware. In Shady Grove, the Court held that section 901(b) of
NYCPLR does not apply to state law class actions filed in federal court. Id. at 1436–42. In turn,
“plaintiffs alleging claims under sections 198 and 663 of [NYLL] may now seek liquidated
damages in federal court.” Gortat v. Capala Bros., Inc., (“Gortat II”), No. 07–CV–3629, 2011
WL 6945186, at * 9 (E.D.N.Y. Dec. 30, 2011) (granting motion to amend complaint to include
claim for liquidated damages in class action suit under NYLL); see Pefanis v. Westway Diner,
Inc., No. 08–CV–002, 2010 WL 3564426, at *7 (S.D.N.Y. Sept. 7, 2010) (finding post-Shady
Grove “plaintiffs may now seek liquidated damages authorized by NYLL as part of a Rule 23
class action in federal court”).
Accordingly, the Court finds that class certification of plaintiffs’ NYLL claims, including
those for liquidated damages, is appropriate.
B. Rule 23(a) Prerequisites
Although it is “not explicitly spelled out in Rule 23, courts have added an ‘implied
requirement of ascertainability’ with respect to the class definition.” Hamelin, 274 F.R.D. at
393. Specifically, courts have required that “a class be identifiable before it may be properly
certified.” Id. at 396 (citing Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125, 135 (S.D.N.Y.
2003)). An identifiable class need not be ascertained prior to certification, “but a court must
determine that the class will be ascertainable at some stage of the proceedings.” Id. (citing Noble
v. 93 Univ. Pl. Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004)). Ascertainability exists when class
members can be identified “by reference to objective criteria.” Guan Ming Lin v. Benihana New
York Corp., No. 10–CV–1335, 2012 WL 7620734, at *11 (S.D.N.Y. Oct. 23, 2012); Hamelin,
274 F.R.D. at 396.
Defendants argue that the “class members are ‘impossible to identify prior to
individualized fact-finding and litigation[,]’” Defs.’ Mem. at 8 (quoting Crosby v. Social
Security Admin., 796 F.2d 576, 580 (1st Cir. 1986)), especially because a “significant number
of Plaintiffs have already accepted Defendants’ Offer of Judgment,” id. 2 Although plaintiffs do
not appear to address defendants’ ascertainability argument, the Court still finds that the
argument is without merit.
Here, defendants have already provided plaintiffs with a list of 2,000 individuals who
have worked for defendants since December 5, 2002. Whether an individual from this list fits
into the proposed class is a factual question that rests on objective criteria such as job
Defendants mistakenly argue that plaintiffs’ proposed class does not meet the numerosity prerequisite because it is
not readily ascertainable. Defs.’ Mem. at 8. Because ascertainability is not a consideration in determining
numerosity, the Court will construe defendants’ argument to be that plaintiffs failed to meet the implied requirement
descriptions, dates of employment, and whether an individual has accepted an offer of judgment.
Moreover, this factual question can be easily answered through documentation, such as the
employee time cards, which include an employee’s date of hire, job title, and department. See
Guan Ming Lin, 2012 WL 7620734, at *12 (finding class ascertainable where “membership in
the class can be ascertained by objective documentation, such as defendants’ payroll records and
Accordingly, plaintiffs’ proposed class satisfies the implied ascertainability requirement.
Rule 23(a)(1) permits a class action only when the “class is so numerous that joinder of
all members is impracticable.” In the Second Circuit, courts have presumed numerosity when a
class consists of forty or more class members. Garcia, 281 F.R.D. at 105 (citing Lee, 236 F.R.D.
at 203); see also Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
Further, “courts are empowered to make common sense assumptions to support a finding of
numerosity.” Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (internal quotation
marks omitted); see Hamelin, 274 F.R.D. at 394 (“[P]laintiffs may rely on reasonable inferences
drawn from the available facts to estimate the size of the class.”).
Defendants, having argued that plaintiffs’ class is not ascertainable, do not make any
additional arguments regarding numerosity. See Defs.’ Opp. at 8. Plaintiffs, however, argue that
they have satisfied the numerosity requirement because: (1) there are at least 2,000 individuals
who have worked at the plant, seventy-eight of whom have already opted in to the FLSA
collective action; and (2) named plaintiffs and opt-in declarants state in their sworn affirmations
that they worked with no fewer than 200 to 400 employees at the plant. Pls.’ Mem. at 10; Pls.’
Reply at 4.
Subtracting the thirty-three opt-in plaintiffs who accepted defendants’ offers of judgment,
plaintiffs’ proposed class is already comprised of over forty potential class members. Further,
considering the large pool of employees from defendants’ list, 3 the number of opt-in plaintiffs,
and the plaintiffs’ affirmations, it is reasonable to infer that the proposed class is significantly
larger than forty and, therefore, sufficiently numerous. See Hamelin, 274 F.R.D. at 394.
Further, any doubt that may arise from the small percentage of opt-ins in this case is
overcome by plaintiffs’ contention that many proposed class members did not opt in because the
class is largely comprised of foreign-born, non-English-speaking employees, who are unfamiliar
with the American legal system and fear losing their employment.
Pls.’ Reply at 4; see
Jankowski v. Castaldi, No. 01–CV–164, 2006 WL 118973, at *2 (E.D.N.Y. Jan. 13, 2006)
(finding numerosity under Rule 23(a)(1) where only forty employees out of pool of at least 450
putative class members opted in to FLSA collective action because majority of class was
undocumented immigrants afraid of losing their jobs); Noble, 224 F.R.D. at 342; Ansoumana v.
Gristede’s Operating Corp., 201 F.R.D. 81, 86 (S.D.N.Y. 2001).
Accordingly, plaintiffs have satisfied Rule 23(a)(1)’s numerosity requirement.
3. Commonality and Typicality
The commonality and typicality requirements “both serve as guideposts for determining
whether under the particular circumstances maintenance of a class action is economical and
whether the named plaintiff’s claim and the class claims are so interrelated that the interests of
the class members will be fairly and adequately represented in their absence.” Falcon, 457 U.S.
As mentioned above, defendants previously provided plaintiffs with a list of Alle employees for the FLSA
collective action notice—the list included the names and addresses of 2,000 individuals who were employed by Alle
from December 3, 2002 onward. Jan. 5 2010 Order ¶ 2. The proposed class in the instant motion includes
employees from December 3, 2005 through the present. Lusher Decl. ¶ 1. Because the previously provided list
covers a longer period of time it contains a larger number of individuals than those eligible for the instant proposed
class. Regardless of this difference, the Court notes that the list’s sheer length still supports a finding of numerosity.
at 157 n.13. As a result, the commonality and typicality requirements tend to merge into one
another, and similar considerations “animate” the analysis of both Rule 23(a)(2) and Rule
23(a)(3). Marisol A., 126 F.3d at 376 (citing Falcon, 457 U.S. at 157 n.13).
The commonality requirement under Rule 23(a)(2) is met when there are “questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality does not mean that
all issues must be identical as to each member, but it does require that plaintiffs identify some
unifying thread among the members’ claims that warrants class treatment.” Garcia, 281 F.R.D.
at 105 (quoting Damassia, 250 F.R.D. at 156) (internal quotation marks omitted). As a result, a
single question common to all class members can be sufficient to satisfy this requirement, “if the
common question is at the core of the cause of action alleged.” Guzman v. VLM, Inc., No. 07–
CV–1126, 2008 WL 597186, at *6 (E.D.N.Y. Mar. 2, 2008) (internal quotation marks omitted);
Garcia, 281 F.R.D. at 105 (“Courts have liberally construed the commonality requirement to
mandate a minimum of one issue common to all class members.”).
Similarly, typicality under Rule 23(a)(3) requires that the claims or defenses of the class
representatives be typical of those of the class. Marisol A., 126 F.3d at 376; Garcia, 281 F.R.D.
at 106 (citing Fed. R. Civ. P. 23(a)(3)). This requirement “is satisfied when each class member’s
claim arises from the same course of events, and each class member makes similar legal
arguments to prove defendant’s liability.” Marisol A., 126 F.3d at 376; see Garcia, 281 F.R.D. at
In light of the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, 131
S.Ct. 2541, 2551 (2011), the analysis of commonality and typicality has recently become stricter.
See Flores v. Anjost Corp., 284 F.R.D. 112, 125 (S.D.N.Y. 2012). In Dukes, the Supreme Court
explained that in order for claims to be “productively litigated at once” they must depend on a
“common contention . . . of such a nature that it is capable of class wide 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.” 131 S.Ct. at 2551.
Even so, “the weight of authority rejects the argument that Dukes bars certification in
wage and hour cases.” Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 616 (S.D.N.Y.
2012) (collecting cases). In wage and hour cases, courts in this Circuit have “focused on whether
the employer had company-wide wage policies that injured the proposed class.” Flores, 284
F.R.D. at 275 (citing Youngblood v. Family Dollar Stores, Inc., No. 09–CV–3176, 2011 WL
4597555, at *4 (S.D.N.Y. Oct. 4, 2011)); see e.g., Poplawski v. Metroplex on the Atl., LLC, No.
11–CV–3765, 2012 WL 1107711 at *7 (E.D.N.Y. Apr. 2, 2011). Moreover, “claims by workers
that their employers have unlawfully denied them wages to which they were legally entitled have
repeatedly been held to meet the commonality prerequisite for class certification.” Flores, 284
F.R.D. at 275 (quoting Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 127 (S.D.N.Y. 2011)
Plaintiffs argue that their claims raise a number of questions of law and fact common to
all members of the proposed class, including, inter alia, questions regarding whether defendants
failed to pay (1) minimum wages for all hours worked, (2) overtime compensation for all hours
worked over forty hours each week, and (3) spread of hours compensation after ten hours worked
per day. Pls.’ Mem. at 11–13. Further, plaintiffs argue that the claims of both the named
plaintiffs and the proposed class members “clearly arise from the same conduct of Defendants
and are based on the same legal theory—that Defendants breached their statutory obligations to
pay or to ensure payment . . . of required wages.” Pls.’ Reply at 5.
Defendants, on the other hand, argue that because “various Plaintiffs performed different
jobs, [had] different job responsibilities, worked different hours, were subject to different pay
rates and were otherwise treated differently by Alle[,]” each plaintiff’s claim is “unique” and
requires an “individual case-by-case analysis[,]” which defeats the purpose of class certification.
Defs.’ Opp. at 9.
The Court finds that plaintiffs have satisfied the commonality and typicality
requirements. The named plaintiffs’ claims and the proposed class members’ claims arise from
the same course of conduct (defendants’ practice and policy of failing to pay wages and
overtime), raise common issues of law and fact (inter alia, whether defendants’ improperly
shaved time from records, refused to pay for time spent donning and doffing uniforms, failed to
pay time and half for all hours worked over forty, and failed to pay spread of hours wages), and
are based on the same legal theories (violations of NYLL).
More importantly, the factual variations cited by defendants are not sufficient to preclude
See Iglesias-Mendoza, 239 F.R.D. at 371 (“[C]ourts have found the
requirement of commonality and typicality satisfied despite the existence of . . . factual
variations.”) (collecting cases); Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir. 1993)
(“When it is alleged that the same unlawful conduct was directed at or affected both the named
plaintiff and the class sought to be represented, the typicality requirement is usually met
irrespective of minor variations in the fact patterns underlying individual claims.”). Differences
among class members as to the number of hours worked, the type of work performed, and the
amount of pay received “concern the amount of damages to which any individual [class member]
might be entitled if and when liability is found, not the amenability of plaintiffs’ claims to the
class action form.” Flores, 284 F.R.D. at 127 (quoting Iglesias-Mendoza, 239 F.R.D. at 371); see
Ansoumana, 201 F.R.D. at 86 (finding differences among plaintiffs as to number of hours
worked, type of work, and amount of pay related to amount of damages); Noble, 224 F.R.D. at
Defendants make two additional arguments, both of which are insufficient to defeat
commonality and typicality here. First, defendants argue that certification is improper because
donning and doffing uniforms is not a compensable activity under the FLSA and, even if it were,
the time spent donning and doffing in this case is de minimis and therefore not compensable.
Defs.’ Mem. at 9–10. In response, plaintiffs assert that defendants’ argument relates to the
merits of the case, which are not at issue on a motion for class certification. Pls.’ Reply at 6.
Whether time spent donning and doffing uniforms is compensable under the FLSA is
irrelevant to the instant motion, which is to certify a class based on plaintiffs’ state law wage
claims, not plaintiffs’ FLSA claim. Further, a determination of whether this time is compensable
under New York State law would require the Court to make a decision on the merits of the
underlying action. Courts, however, must undertake a “rigorous analysis” to determine whether
plaintiffs have met each requirement of Rule 23, not whether there has been a violation of law.
See Niemiec v. Ann Bendick Realty, No. 04–CV–897, 2007 WL 5157027, at *5 (E.D.N.Y. Apr.
As a result, courts are discouraged from deciding issues on the merits “unless they are
related to, or implicated by, the determination of whether the Rule 23 prerequisites have been
satisfied.” 953 Assocs. LLC, 280 F.R.D. at 124 (citing In re Initial Pub., 471 F.3d at 41). The
question of whether donning and doffing time is compensable here does not need to be resolved
in order for the Court to determine commonality, typicality, or any other prerequisite under Rule
23(a). In fact, this question helps establish commonality by raising issues of both law and fact
that are common to both plaintiffs and the proposed class members—for example, whether
defendants had a policy of refusing to compensate employees for time spent donning and doffing
uniforms and whether this policy violates NYLL.
Second, defendants argue that the proposed class lacks commonality and typicality
because a large majority of the proposed class members earned over the minimum wage, and
employees who earn over the minimum wage are not entitled to spread of hours compensation.
Defs.’ Opp. at 11. Defendants are correct that New York law does not ensure an additional hour
of compensation for those employees who earn over the minimum wage. 4 See Flores, 284
F.R.D. at 118–19 (citing N.Y. Comp. Codes R. & Regs. tit. 12, §142–2.4(a); Espinoza v.
Delgado Travel Agency, Inc., No. 05–CV–6917, 2007 WL 656271, at *2 (S.D.N.Y. Mar. 2,
However, the presence of both minimum wage and above-minimum wage employees in
the proposed class is insufficient to defeat commonality and typicality. The common question of
whether defendants had a policy of failing to pay spread of hours compensation is amenable to
class resolution. There may be questions regarding whether plaintiffs or individual proposed
class members are entitled to spread of hours compensation for all or part of their employment.
“In this, spread of hours wages are not so unlike overtime wages: an employer’s liability is not
ascertained on a paycheck to paycheck basis—damages are.”
Flores, 284 F.R.D. at 127.
Although, the spread of hours compensation to which an individual is entitled will require an
inquiry into the number of hours the individual worked and his rate of pay, such damages-related
inquiries are “mechanical” and do “not threaten to overwhelm the litigation with individual
Id. at 126–27 (finding difference in wages among class members
The exception to this rule, which applies to restaurant and hotel employees, does not apply here. See Flores, 284
F.R.D. at 119 (citing N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6(d)).
insufficient to defeat typicality in spread of hours claim subclass); see also Morangelli v.
Chemed Corp., No. 10–CV–876, 2013 WL 432571, at *23 (E.D.N.Y. Feb. 4, 2013) (“The fact
that some [plaintiffs] were not affected by the purported time-shaving practice or were affected
to different extents does not undermine plaintiffs’ ability to establish liability . . . through
generalized proof.”). 5
Accordingly, plaintiffs have satisfied the commonality and typicality requirements.
Rule 23(a)(4) requires plaintiffs to demonstrate that “the representative parties will fairly
and adequately protect the interests of the class.” To satisfy this prerequisite, “plaintiffs must
show that (1) the class representatives’ interests are not ‘antagonistic to the interest of other
members of the class’ and (2) that class counsel is ‘qualified, experienced and able to conduct
the litigation.’” Garcia, 281 F.R.D. at 107; see Baffa v. Donaldson, Lufkin & Jenrette Sec.
Corp., 222 F.3d 52, 60 (2d Cir. 2000).
Defendants contend that plaintiffs fail to satisfy the first of these two prongs. First,
defendants argue that named plaintiffs have not provided reliable and accurate information but,
rather, have “provided different information regarding their job responsibilities, work hours, pay
methods, and even the equipment they were required to wear.” Defs.’ Mem. at 12. Although
“[i]t is true that class representatives with credibility so poor as to materially impair the
plaintiffs’ case at trial may be inadequate for that reason,” Guzman, 2008 WL 597186, at *7
(citing Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998)), the record here does not
support such a finding. The factual differences between named plaintiffs’ experiences do not
The Court notes that although named plaintiff Rafael Mateo appears to have been paid above the minimum wage at
the time of his employment, see N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1, this “does not preclude a finding
of typicality because the claims of the named plaintiffs do not need to be identical with those of each class member.”
Hamelin, 274 F.R.D. at 395 (finding typicality present even where one named plaintiff did not make common
claim); see Marriott v. Cnty. of Montgomery, 227 F.R.D. 159, 172 (N.D.N.Y. 2005).
reflect a lack of credibility or reliability, but instead demonstrate that defendants’ alleged
improper payment policies may have affected a wide range of employees.
Second, defendants argue that named plaintiffs have “evidenced an undisputable Union
motive to continue litigation against Alle that is not shared by a large majority of Alle’s
employees.” Defs.’ Mem. at 12. As stated above, the majority of Alle’s employees voted
against Union representation in a November 2008 election. Mateo and Pierre, in contrast, not
only supported the Union but utilized Union representation in unfair labor practice charges
against Alle. As a result, defendants suggest that inclusion of Union supporters and Union
opponents in the same proposed class creates a conflict of interest, especially where “[named
plaintiffs] and their Union may wish to pursue otherwise baseless claims against Alle for their
personal interest.” Defs.’ Mem. at 12. However, “a vote to decline general union representation
is not proof that the union and all workers have conflicting interests concerning a lawsuit to
redress specific pay practice grievances.” Gutierrez v. Kovacevich “5” Farms, No. 04–CV–
5515, 2004 WL 3745224, at *7 (E.D. Cal. Dec. 2, 2004) (emphasis in original).
plaintiffs’ claims may be for “personal interest,” but other Alle employees also share these
claims, as evidenced by the declarations of opt-in plaintiffs David Benito, Effrain Irizarry,
Kenneth Patterson, and Robert Carl Lanza, and the fact that seventy-eight employees opted in to
the plaintiffs’ FLSA collective action. Defendants have not shown that any Alle employees
object to this lawsuit because of the named plaintiffs’ Union connection. Moreover, any Alle
employees that do object may opt out of participation in the class.
Further, the named plaintiffs’ adequacy is bolstered by the finding that their claims are
typical of the class. 6 Garcia, 281 F.R.D. at 107 (quoting Damassia, 250 F.R.D. at 158) (finding
typicality “is strong evidence that [named plaintiffs’] interests are not antagonistic to those of the
class; the same strategies that will vindicate plaintiffs’ claims will vindicate those of the class”).
With respect to the qualifications and experience of plaintiffs’ counsel, Virginia and
Ambinder LLP, the Court finds that they are experienced labor and employment litigators who
have successfully represented employees in numerous wage and hour class and collective action
lawsuits. See Lusher Decl. ¶ 3 (collecting cases). Defendants do not challenge the qualifications
of plaintiffs’ counsel.
Accordingly, plaintiffs have demonstrated adequacy sufficient to satisfy the requirements
of Rule 23(a)(4).
C. Rule 23(b)(3) Prerequisites
The predominance element of Rule 23(b)(3) requires plaintiffs to show that common
questions “predominate over any questions affecting only individual members.” Fed. R. Civ. P.
23(b)(3). A court’s inquiry into this element “tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation” and is similar to the analysis of the
commonality and typicality requirements. Achem Prods., Inc. v. Windsor, 521 U.S. 591, 623
(1997); see Niemiec, 2007 WL 5157027, at * 12. “To meet the predominance requirement, a
plaintiff must establish that the issues that are subject to generalized proof, and thus applicable to
the class as a whole, predominate over those issues that are subject only to individualized proof.”
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132–33 (2d Cir. 2001). Further,
Named plaintiff Pierre’s failure to submit a declaration in support of the instant motion is of no consequence given
the declarations from named plaintiffs Morris and Mateo and the opt-in declarants. See 953 Assocs. LLC, 280
F.R.D. at 128.
predominance is satisfied where, as here, the “central issue” is whether defendants had a
“uniform policy or practice” of denying wages for all hours worked, overtime wages, and spread
of hours compensation. Garcia, 281 F.R.D. at 108 (quoting Guzman, 2008 WL 597186, at *8).
Defendants maintain that because “liability cannot be established on a class-wide basis
(due to the disparate nature of the defenses and exemptions which inextricably affect Plaintiffs
and the putative class)[,]” plaintiffs have failed to establish predominance. Defs.’ Mem. at 13.
Defendants further contend that certification is inappropriate “because the exemption analysis
required to resolve Plaintiffs’ NYLL claims is dependent upon an individualized inquiry into
each employee’s actual job duties, work department and necessary ‘uniforms[.]’” Id. at 15.
Although defendants do not name specific defenses and exemptions, they appear to suggest that
some employees will not be entitled to additional wages if their uniforms were minimal or they
spent a limited amount of time donning and doffing such uniforms. 7
defendants fail to make any arguments regarding plaintiffs’ time-shaving claims, overtime wages
claims, and spread of hours compensation claims in their predominance discussion. See Defs.’
Mem. at 13–16.
Defendants’ argument, in essence, amounts to a list of factors that could affect the
amount of time Alle employees spent donning and doffing uniforms, and thus the wages to
which they would be entitled—i.e. damages issues, not liability issues. Although determinations
as to damages will require individualized inquiries here, such inquiries will not bar certification
because common liability issues otherwise predominate. Noble, 224 F.R.D. at 345; see Niemiec,
2007 WL 5157027, at *12 (finding issues raised by plaintiffs’ failure to pay overtime claim
This is not an exemption issue as it is typically understood in the context of wage and hour class and collective
actions. For example, an employee is exempt from receiving overtime wages under NYLL if he was “employed in a
bona fide executive, administrative, or professional capacity,” pursuant to section 13(a)(1) of the FLSA. N.Y.
Comp. Codes R. & Regs. tit. 12, § 142-2.2.
subject to generalized proof and “predominate over individual issues such as the alleged exempt
status of the superintendent class members or the swapping of weekend schedules by class
Further, while plaintiffs and opt-in declarants have consistently listed similar uniform
items (i.e. coat/suit/jacket, boots, gloves, hairnet, and hardhat), defendants have failed to provide
any evidence of employees who may have different items or no uniform at all. As a result, there
is no merit to defendants’ suggestion that class certification is inappropriate because proposed
class members donned different uniforms and spent varying amounts of time donning such
uniforms. See Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 199–200 (S.D.N.Y. 1992)
(“The Court is well aware that here, as in any class action, certain defenses or proof may
ultimately be required of some class members but not others. To prohibit certification of a class
on the basis of such speculation, however, would wholly negate the utility of the class action
device and undermine the very policy that Rule 23 is intended to promote.”); see e.g., Ford v.
Townsends of Arkansas, Inc., No. 4:08–CV–509, 2010 WL 1433455, at *1, 9 (E.D. Ark. Apr. 9,
2010) (finding predominance satisfied where class members, whose uniforms varied by
department and individual, alleged “that they were victims of common policy against
compensating employees for all time spent donning, doffing, and related activities”).
Although plaintiffs represent to the Court that they will utilize common evidence to
establish liability, they do not specify such evidence. Pls.’ Reply at 10. Despite plaintiffs’ lack
of detail, the Court finds that a determination on the legality or illegality of defendants’ practices
is susceptible to common proof, thus satisfying the predominance requirement. See Morangelli,
2013 WL 432571, at *23 (“[T]he key is whether liability issues are susceptible to common proof.
Differences between plaintiffs may often interfere with common proof but where, as here,
documentary evidence allows for class-wide determinations of these issues, certification remains
appropriate.”); cf. Ford, 2010 WL 1433455, at *9 (finding of predominance further supported by
plaintiffs’ allegation that common evidence will be used to prove defendants’ policy violated
state law). Mainly, documentary evidence, such as the employee time cards, could be used to
help resolve issues of defendants’ liability on plaintiff’s time-shaving, overtime, and spread of
The common questions of liability predominate over individual inquiries here. See e.g.,
953 Assocs. LLC, 280 F.R.D. at 127–29 (finding predominance satisfied where common issues
related to overtime and time alteration claims predominated over individual inquiries).
Accordingly, plaintiffs have satisfied the predominance requirement under Rule 23(b)(3).
Rule 23(b)(3) also requires a class action “be superior to other available methods for fair
and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). District courts in this
Circuit “routinely hold that a class action is superior where, as here, potential class members are
aggrieved by the same policy, the damages suffered are small in relation to the expense and
burden of individual litigation and many potential class members are currently employed by
Defendant.” Garcia, 281 F.R.D. at 108 (citing Whitehorn v. Wolfgang’s Steakhouse, Inc., 275
F.R.D. 193, 200 (S.D.N.Y. 2011) (collecting cases)); Tiro v. Public House Investments, LLC,
Nos. 11–CV–7679, 11–CV–8249, 2012 WL 6053961, at *8 (S.D.N.Y. Dec. 4, 2012).
Here, the proposed class members are significantly numerous and possess relatively small
individual claims. Moreover, there is reason to believe that because many class members are
currently employed by Alle and/or of foreign descent, they may fear reprisal and lack familiarity
with the American legal system. As a result, not only would a class action in the instant case
allow for a “more cost-efficient and fair litigation of common disputes” than individual actions,
but it is likely the only device by which many of the proposed class members would obtain relief.
Garcia, 281 F.R.D. at 108; see Iglesias-Mendoza, 239 F.R.D. at 373 (finding it “extremely
unlikely” that proposed class members would pursue separate actions where they were “almost
exclusively low-wage workers with limited resources and virtually no command of the English
language or familiarity with the legal system”). Furthermore, “a class action is superior to other
available methods, given that the [NYLL] claims are nearly identical to the FLSA claims, which
will be tried collectively in this Court.” Garcia, 281 F.R.D. at 108 (citing Alonso v. Uncle Jack’s
Steakhouse, Inc., No. 08–CV–7813, 2011 WL 4389636, at *5 (S.D.N.Y. Sept. 21, 2011)).
Given these considerations, it is clear that a class action is superior to other available
methods for fair and efficient adjudication. 8 The interest of the class as a whole to litigate the
predominant common questions substantially outweighs any interest of individual members to
bring and prosecute separate actions.
Accordingly, the Court finds that plaintiffs have satisfied the superiority element of Rule
23(b)(3) and class certification is warranted.
D. Form and Content of Proposed Notice
Plaintiffs have requested authorization of a proposed notice they included with their
motion. Lusher Decl. Ex. 7. Defendants did not address plaintiffs’ proposed notice in their
opposition papers. See Defs.’ Mem. Nevertheless, the Court directs plaintiffs to revise the
proposed notice by listing the undersigned as the presiding judge. See Consent to Magistrate
Defendants contend that a class action is not superior where, as here, absent class members would be required to
waive their right to liquidated damages under NYLL. Defs.’ Mem. 16–17 (citing Myers v. Hertz Corp., No. 02–
CV–4325, 2007 WL 2126264, at *7 (E.D.N.Y. Jul. 24, 2007), aff’d, 624 F.R.D. 537 (2d Cir. 2010)). As previously
discussed, post-Shady Grove, plaintiffs may maintain claims for liquidated damages under NYLL in a class action
form in federal court. Gortat II, 2011 WL 6945186, at *9. As a result, defendants’ argument is misplaced.
Judge; Lusher Decl. Ex. 7. Further, the parties shall submit a joint proposed notice to the Court
for approval “in order to ensure that the drafting and distribution of notice is timely, accurate,
and informative.” Flores, 284 F.R.D. at 131. Accordingly, plaintiffs’ request for authorization
of the proposed notice is denied and a revised joint proposed notice shall be submitted within
fourteen days of this Order.
For the foregoing reasons, the Court grants plaintiffs’ motion for class certification,
pursuant to Rule 23, based on plaintiffs’ state law claims. However, plaintiffs’ request for the
Court to authorize their proposed form is denied. The parties are directed to submit, within
fourteen days of this Order, a jointly proposed notice including, but not limited to, the
aforementioned revision of listing the undersigned as the presiding judge.
Dated: May 6, 2013
Brooklyn, New York
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE
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