Cazares et al v. AVA Restaurant Corp. et al
MEMORANDUM AND ORDER granting 55 Motion to Certify Class. For the reasons stated in the attached Memorandum and Order, plaintiffs' motion for class certification is hereby granted. Ordered by Judge Kiyo A. Matsumoto on 3/31/2017. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EMMANUEL CAZARES and ERICK PEREZ,
Individually and on Behalf of All
Others Similarly Situated,
MEMORANDUM AND ORDER
AVA RESTAURANT CORP d/b/a BUCCANEER
DINER and COSTAS ALEXIOU, Jointly
KIYO A. MATSUMOTO, United States District Judge:
Plaintiffs Emmanuel Cazares (“Cazares”) and Erick Perez
“plaintiffs”) bring this collective and class action on behalf of
themselves and others similarly situated, pursuant to the federal
Fair Labor Standards Act of 1983 (“FLSA”) and the New York Labor
Law (“NYLL”), alleging that defendants AVA Restaurant Court d/b/a
Buccaneer Diner and Costas Alexiou (“defendants”), violated the
minimum wage and overtime provisions of both statutes, as well as
NYLL’s spread-of-hours and wage notice provisions.
before the court is plaintiffs’ motion to certify plaintiffs’ NYLL
claims as a Federal Rules of Civil Procedure Rule 23(b)(3) class.
For the reasons stated herein the Motion is granted.
Defendants Costas Alexiou (“Alexiou”) and AVA Restaurant
Corp are the owners of Buccaneer Diner, which is located on Astoria
Boulevard in Queens County, New York.
No. 1, at ¶¶ 1, 10.)
(Complaint (“Compl.”), ECF
Plaintiffs Cazares and Perez are former
employees of the Buccaneer Diner who worked there as servers,
bussers, dishwashers and delivery employees. 1
(Id. at ¶¶ 1, 35,
Plaintiffs allege that prior to the filing of this lawsuit,
defendants never paid overtime premiums to any of their employees,
significantly below the minimum wage.
(Id. at ¶¶ 57-58, 61.)
Further, defendants never paid any of their employees a spreadof-hours premium for working a shift of more than ten hours, nor
did defendants provide their employees with accurate wage notices
or wage statements as required under New York law.
(Id. at ¶¶ 56,
On January 20, 2015, plaintiff filed this collective and
class action on behalf of themselves and those similarly situated.
(Compl., ECF No. 1). Plaintiffs bring eight claims under the FLSA,
29 U.S.C. §§ 201 et seq. and NYLL §§ 650 et seq.
(Id. at ¶¶ 2,
Counts 1 and 2 allege FLSA collective action claims for,
1 Opt-in plaintiff Randy Jones has been dismissed from this law suit.
Ordered Stipulation of Dismissal as to Opt-In Plaintiff Randy Jones, ECF No.
74.) Accordingly, the court did not consider his affidavit or any references
to him when deciding this motion.
respectively, unpaid minimum wage and unpaid overtime.
(Id. at ¶¶
Counts 3 to 7 allege NYLL claims for: failure to pay
minimum wage for all hours worked; failure to pay overtime premiums
for hours worked in excess of forty per week; failure to pay
spread-of-hours premiums for days in which the employees’ work
lasted ten or more hours; failure to provide accurate wage notices
on the date of hire and/or prior to February 1 of each applicable
year; failure to provide a wage statement with each payment of
wages; and failure to reimburse for the purchase of required
uniforms, failure to provide uniform maintenance and deduction for
uniform expenses from employee pay. 2
(Id. at ¶¶ 76-93.)
certification of the collective action under the FLSA.
Magistrate Judge Robert M. Levy conditionally certified the FLSA
(See Minute Entry dated September 14, 2015.)
On March 24, 2016, plaintiffs moved for spoliation sanctions
against defendants after learning that defendant Alexiou discarded
including the payroll records at issue in this litigation.
No. 40 at 1.)
On July 14, 2016, Magistrate Judge Levy found that
defendants failed to preserve electronically stored information
Plaintiffs are not seeing class certification for the uniform expense claim
at this time. (Pl. Mem., ECF 56 at 3.)
(“ESI”) in violation of Fed. R. Civ. P. 37(e) and that the ESI
cannot be restored or replaced through additional discovery. Judge
Levy also found that plaintiffs were prejudiced by the loss of the
(See Minute Entry dated July 14, 2016.)
On July 28
and July 29, 2016, the parties filed their fully briefed class
(ECF Nos. 55-63.)
Standard of Review
Rule 23 of the Federal Rules of Civil Procedure governs
class certification. In order to proceed as a class action, the
proposed class must meet the following Rule 23(a) prerequisites:
(1) [T]he class is so numerous that joinder of
all members is impracticable; (2) there are
questions of law or fact common to the class;
representative parties are typical of the
claims or defenses of the class; and (4) the
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a); see also Cordes & Co. Fin. Servs., Inc. v.
A.G. Edwards & Sons, Inc., 502 F.3d 91, 98–99 (2d Cir. 2007).
“In addition, while Rule 23(a) does not expressly require that a
class be definite in order to be certified, a requirement that
there be an identifiable class has been implied by the courts.
‘ascertainability.’” Reyes v. City of Rye, No. 13-CV-9051 (NSR),
2016 WL 4064042, at *2 (S.D.N.Y. Jul. 28, 2016) (quoting In re
Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209
F.R.D. 323, 336 (S.D.N.Y. 2002)).
The district court is afforded broad discretion in class
certification questions because it is often in the best position
to assess the propriety of the class action.
Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d
Additionally, the district court has the ability to
“alter or modify the class, create subclasses, and decertify the
class whenever warranted.”
If the Rule 23(a) criteria are
satisfied, the proposed class must also qualify under at least one
of the categories provided in Rule 23(b) to be certified as a class
certification if common questions “predominate over any questions
affecting only individual members” and if class resolution “is
superior to other available methods for fairly and efficiently
adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3).
After certifying a class, the court “‘must define the
class and the class claims, issues, or defenses, and must appoint
appointment has already done in the action, counsel’s relevant
experience and knowledge of the applicable law, and the resources
that counsel plans to dedicate to the action.”
Reyes, 2016 WL
4064042, at *3 (citing Fed. R. Civ. P. 23(c)(1)(B) & 23(g)(1)(A)).
“Class counsel must fairly and adequately represent the interests
of the class.”
Fed. R. Civ. P. 23(g)(4). “If a class action is
certified under Rule 23(b)(3)—as Plaintiffs’ have requested in
this action—the court ‘must direct to class members the best notice
that is practicable under the circumstances, including individual
notice to all members who can be identified through reasonable
Reyes, 2016 WL 4064042, at *3 (citing Fed. R. Civ. P.
establish each of the Rule 23 requirements by a preponderance of
See Teamsters Local 445 Freight Div. Pension Fund
v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008).
deciding whether to certify a class, the court must “resolve
factual disputes relevant to each Rule 23 requirement” and find
that “whatever underlying facts are relevant to a particular Rule
Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
the Rule 23 analysis may overlap with issues going to the merits,
“a district judge should not assess any aspect of the merits
unrelated to a Rule 23 requirement.”
The only question at
the class certification stage “is whether [plaintiffs] may pursue
those claims on behalf of a class of similarly situated persons,
or whether they must do so as individuals.”
DeMarco v. Robertson
Stephens Inc., 228 F.R.D. 468, 476 (S.D.N.Y. 2005).
For the reasons discussed herein, the court finds that
therefore, class certification is appropriate.
A. Rule 23(a)
Under Rule 23(a)(1), numerosity is presumed where a
putative class has forty or more members.
Shahriar v. Smith &
Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011).
Plaintiffs assert and provide evidence that both the purported
Class and the Subclass meet the numerosity standard.
rely on the Payroll Spreadsheets defendants produced for the
purpose of distributing the notice to Collective Action members,
which is comprised of employees working in the same positions as
Plaintiffs’ Motion for Class Certification (“Pls. Mem.”), ECF No.
(Payroll Spreadsheets, Exhibit (“Ex.”) 1 to the Declaration of
Brent E. Pelton (“Pelton Decl.”), ECF No. 57-1 at 1.)
also argue that there are likely significantly more Class Members,
in light of the NYLL’s longer limitations period. (Pls. Mem., ECF
No. 56 at 15.)
Further, defendant Alexiou testified that there
was significant turnover at the Buccaneer Diner, and approximately
twenty dishwashers and bussers cycled through the business per
(Declaration of Brent E. Pelton in Further Support of
Plaintiffs’ Motion for Class Certification (“Pelton Reply Decl.”),
Alexiou Dep., Ex. B, ECF No. 59-2 at 97:15-98:16.).
the court finds that numerosity is satisfied.
See Reyes, 2016 WL
4064042, at *4 (numerosity satisfied where records show that the
class had more than forty members).
bussers, dishwashers, delivery employees and food preparers but
excludes cooks, defendant Alexiou testified that he typically
employed five cooks at any given, some of whom also doubled as
(Alexiou Dep., Ex. 6 to Pelton Decl., ECF No. 57-
6 at 8:7-16.)
Thus, it is highly likely that at least forty
Collective Action Period alone, thus satisfying numerosity for the
Defendants argue that plaintiffs have not carried their
produced by defendants.
The court respectfully finds defendants’
relevant documents, and plaintiff should be entitled to rely on
Moreover, there is evidence that defendants discarded the
Buccaneer Diner computer which contained the payroll records at
issue in this litigation.
Accordingly, the court finds that
plaintiffs have established that numerosity is satisfied for the
Shahriar, Inc., 659 F.3d at 252; Ramirez v. Riverbay Corp., 39 F.
Supp. 3d 354, 362 (S.D.N.Y. 2014) (numerosity satisfied on the
basis of documents reflecting that the class had more than forty
To establish commonality, the plaintiffs must show that
“there are questions of law or fact common to the class.”
Civ. P. 23(a)(2).
Rule 23(a)(2) requires that the plaintiffs’
claims “depend upon a common contention . . . 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.”
“Commonality may be met even though class members’ individual
circumstances differ, so long as their injuries derive from a
unitary course of conduct.”
Espinoza v. 953 Assocs. LLC, 280
F.R.D. 113, 124 (S.D.N.Y. 2011) (quoting Noble v. 93 Univ. Place
Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004)) (internal quotation
marks omitted). “In wage cases, the commonality requirement is
usually satisfied where the plaintiffs allege that defendants had
Poplawski v. Metroplex on the Atl., LLC, 11 Civ. 3765, 2012 WL
1107711, at *7 (E.D.N.Y. Apr. 2, 2012).
Here, the declaration of opt-in plaintiff Vega and the
Payroll Spreadsheets collectively provide evidence that a common
pattern and policy of defendants paying wages below the minimum
wage for members of the Subclass, and failing to pay overtime
(Declaration of Matias Vega, Ex. 10 to Pelton Decl., ECF No. 5710 at ¶ 4-8; Payroll Spreadsheets, Ex. 1 to Pelton Decl., ECF No.
Plaintiffs and the Class Members also share in common the
question of whether they received wage statements and whether any
wage notices received were accurate.
Further, the question of
whether defendants’ practices and policies violated the law is a
common question to both the plaintiffs and the Class Members.
“Thus, answers to the common policy and legal questions undoubtedly
will ‘drive the resolution of the litigation’ with respect to all
parties.” Reyes, 2016 WL 4064042, at *5 (quoting Wal-Mart, 564
requirement satisfied where plaintiffs’ “NYLL class claims all
Defendants argue that because plaintiffs were paid in
cash, the commonality requirement is not met because different
records were kept for employees paid in check as compared to
employees paid in cash.
(Memorandum of Law in Opposition to
Plaintiff’s Motion for Class Certification, (“Defs. Opp.”), ECF
No. 60 at 16.)
Defendants’ argument is misguided, however.
issues here are not about how the employees received their salaries
but, rather, the policies that determined the amount of their
salaries, such as whether employees received at least the minimum
wage or whether they received overtime wages or a spread-of-hours
The court finds that defendants’ arguments in opposition
fail, and that plaintiffs have met the commonality requirement.
“The requirements of commonality and typicality tend to
merge, because both serve as guideposts for determining 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 protected in their absence.”
Pichardo v. Carmine’s
Broadway Feast Inc., No. 15-CV-03312 (RA)(SN), 2016 WL 4379421, at
*8 (S.D.N.Y. Jun. 13, 2016), R&R adopted sub nom. Pichardo v.
Carmine’s Broadway Feast Inc., No. 15-CV-3312 (RA), 2016 WL 5338551
(S.D.N.Y. Sept. 23, 2016) (citing In re NYSE Specialists Secs.
Litig., 260 F.R.D. 55, 70 (S.D.N.Y. 2009)).
representatives be typical of those of the class.’”
Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care,
L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (quoting Robinson v.
Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).
representative has the incentive to prove all the elements of the
cause of action which would be presented by the individual members
Pichardo, 2016 WL 4379421, at *8, R&R adopted sub nom., 2016 WL
5338551 (quoting In re NYSE Specialists Secs. Litig., 260 F.R.D.
“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
underlying [the] claims.”
Schear v. Food Scope Am., Inc., 297
F.R.D. 114, 124 (S.D.N.Y. 2014) (quoting Robidoux v. Celani, 987
Plaintiffs as to the number of hours worked, the precise work they
did, and the amount of pay they received concern the amount of
damages to which any individual plaintiff might be entitled if and
when liability is found, not the amenability of the plaintiffs’
claims to the class action form.”
Pichardo, 2016 WL 4379421, at
*7, R&R adopted sub nom., 2016 WL 5338551 (quoting Iglesias-Mendoza
v. La Belle Farm, Inc., 239 F.R.D. 363, 371 (S.D.N.Y. 2007))
satisfies the typicality requirement because the alleged harms
suffered by the plaintiffs are typical of those of the class they
seek to represent.
All Class Members, including plaintiffs, were
employed by the defendants and allegedly were subjected to the
same allegedly unlawful employment practices and policies.
Payroll Spreadsheets show that the purported Subclass Members were
paid wage rates far below the federal or state minimum wage.
Further, the Payroll Spreadsheets also show that all Class Members,
including plaintiffs, received straight-time pay rates even when
they worked more than 40 hours in a given week. (Id.) Thus,
plaintiffs’ claims are typical of the Class and the Subclass and,
therefore, plaintiffs are incentivized to litigate vigorously all
claims in this action.
See Shahriar, 659 F.3d at 252 (finding
typicality satisfied where “all Class Members were subject to the
same tipping policies”); Spicer v. Pier Sixty LLC, 269 F.R.D. 321,
337 (S.D.N.Y. 2010) (finding commonality and typicality met where
all class members were subject to the same policies regarding their
employers’ distribution of a service charge).
Defendants argue that plaintiffs’ claims are not typical
preparers or cooks. (Defs. Opp., ECF No. 60 at 17.)
argument fails, however, because typicality is usually found where
the “same unlawful conduct was directed at or affected both the
named plaintiff and the class sought to be represented.”
v. Dircksen & Talleyrand Inc., No. 13 CIV. 5124 AT, 2015 WL
5813382, at *4 (S.D.N.Y. Sept. 28, 2015) (citing Robidoux, 987
F.2d at 936–37).
Further, the Payroll Spreadsheets show that the
food preparers and the cooks were paid in the same manner as the
other employees and, as discussed above, were subjected to the
plaintiffs have carried their burden of establishing typicality.
To satisfy Rule 23(a)(4)’s adequacy requirement, the
plaintiff must show that “the representative parties will fairly
and adequately protect the interests of the class.”
Fed. R. Civ.
“A class representative must be part of the class
and possess the same interest and suffer the same injury as the
Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 625–
26 (1997) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez,
“To meet the adequacy requirement, the
class members must not have interests that are antagonistic to one
another, and class counsel must be qualified, experienced, and
able to conduct the litigation.”
Murphy v. LaJaunie, No. 13-CV-
6503 RJS, 2015 WL 4528140, at *5 (S.D.N.Y. Jul. 24, 2015) (quoting
Brown v. Kelly, 609 F.3d 467, 479 (2d Cir. 2010) and Baffa v.
Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.
2000)) (internal quotation marks omitted).
The adequacy inquiry
“serves to uncover conflicts of interest between named parties and
the class they seek to represent.”
Amchem Prods., 521 U.S. at
“A conflict must be fundamental for it to defeat a motion
Murphy, 2015 WL 4528140, at *5 (citing In re
Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.
Defendants argue that plaintiffs are “untrustworthy” and
are not adequate class representatives because one of the named
lawsuit and plaintiffs’ counsel failed to explain certain forms to
(Defs, Opp., ECF No. 60 at 19-20.)
certain inconsistencies between Perez and Cazares’ deposition and
the declarations submitted in support of this motion.
Defendants’ argument fails because inconsistencies or inaccuracies
credibility, but do not necessarily disqualify him as an adequate
See Chime v. Peak Sec. Plus, Inc., 137 F.
Supp. 3d 183, 211 (E.D.N.Y. 2015) (holding that inconsistencies
may call plaintiff’s credibility into question but they do not
representative”); Jackson v. Bloomberg LP, 298 F.R.D. 152, 165
recollection and “the actual hours plaintiff worked” does not
render plaintiff an inadequate class representative where others
corroborated the overtime allegations).
Defendants also cite to circumstances surrounding five
Buccaneer Diner employees (the “Buccaneer Five”) initially opting
into the lawsuit and their subsequent withdrawal of the lawsuit,
as reasons why plaintiffs are inadequate class representatives.
(Def. Opp., ECF No. 60 at 19.)
There has been no finding that
plaintiffs or plaintiffs’ counsel have acted inappropriately in
Instead, the defendants have already been found to
be in violation of Fed. R. Civ. P 37(e), by failing to preserve
Buccaneer Diner’s computer.
(See Minute Entry dated July 14,
2016.) Further, Alexiou stated during his deposition that he asked
Mr. Hugo Ortiz, one of the Buccaneer Five, why Mr. Ortiz was suing
him and asked him, if he wanted to “come out from the lawsuit,”
and, after speaking with his attorney, directed Mr. Ortiz to send
a letter to plaintiffs’ counsel.
(Alexiou Depo., annexed to Def.
Opp., ECF No. 60-15 at 18:14-25, 19:2-23.)
Alexiou also stated
that he referred Mr. Ortiz to an attorney recommended by Alexiou’s
attorney, so Mr. Ortiz and others could withdraw from the lawsuit.
Alexiou also stated that he spoke to Mr. Ortiz every day because
Mr. Ortiz still works at the Buccaneer Diner.
(Id. at 20:4-17.)
Defendant Alexiou’s admissions raise serious concerns about his
Plaintiffs’ conduct, on the other hand, shows that they
are able to prosecute this action vigorously.
retained experienced and competent counsel, who has guided them
through this process.
Pelton Graham LLC has extensive experience
in the area of wage and hour litigation in the food service
Plaintiffs’ counsel has spent significant time and work
preparing this action for litigation, including marshalling the
available evidence in light of defendants’ spoliation.
Decl., ECF No. 57 at ¶¶ 2-7; see generally the Docket.)
Accordingly, the court finds that plaintiffs’ interests
are not antagonistic to the other Class Members because plaintiffs
and the other Class Members were subject to the same alleged
unlawful employment policies and practices. The court is satisfied
that plaintiffs and plaintiffs’ counsel will adequately represent
Class and Subclass Members.
23(a) adequacy requirement.
As such, plaintiffs have met the Rule
See Damassia v. Duane Reade, Inc.,
250 F.R.D. 152, 158 (S.D.N.Y. 2008) (“The fact that plaintiffs’
claims are typical of the class is strong evidence that their
interests are not antagonistic to those of the class; the same
strategies that will vindicate plaintiffs’ claims will vindicate
those of the class.”); Pichardo, 2016 WL 4379421, at *9, R&R
adopted sub nom., 2016 WL 5338551 (finding plaintiffs’ counsel
adequate who specialized in labor and employment litigation and
who “was ready, willing and able” to represent the class).
Although it is not stated explicitly in Rule 23(a),
“there is an implied requirement that the membership of the class
be identifiable and ascertainable.”
Fonseca, 2015 WL 5813382, at
*5 (citing Flores v. Anjost Corp., 284 F.R.D. 112, 121 (S.D.N.Y.
2012)) (modifications omitted). “An identifiable class exists if
its members can be ascertained by reference to objective criteria.”
(quoting Stinson v. City of N. Y., 282 F.R.D. 360, 367
Here, the proposed class is easily identifiable
Buccaneer Diner at any time during the Class Period.
subclass, too, is readily identifiable: all servers, bussers,
dishwashers, delivery employees and food preparers who worked at
Buccaneer Diner during the Class Period.
To the extent that
plaintiffs may not know the exact function of each Class Member
attributable to defendants’ failure to preserve their payroll
records after the commencement of this litigation. Thus, the court
will not permit defendants to benefit from their conduct by finding
that plaintiffs’ are unable to carry their burden of showing
Besides, the court finds that the Payroll
Spreadsheets establish, by a preponderance of the evidence, that
the Class Members and the Subclass Members are ascertainable.
Pichardo, 2016 WL 4379421, at *9, R&R adopted sub nom., 2016 WL
5338551 (finding proposed class was ascertainable where class
members were “easily identifiable through payroll and employment
records”); Ramirez, 39 F. Supp. 3d at 366 (holding that the implied
requirement of ascertainability was satisfied because members of
the class could be ascertained by reference to date of employment
and information from payroll records).
B. Rule 23(b)
As the Rule 23(a) prerequisites have been met, the court
now turns to the Rule 23(b) to determine whether common legal or
factual issues predominate over individual issues, and whether a
class action is superior to other methods of adjudication.
R. Civ. P. 23(b)(3).
For the reasons discussed herein, the court
finds that common issues predominate and the class action is the
superior method for adjudicating the claims presented here.
“The Rule 23(b)(3) predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant adjudication
predominance requirement is more demanding than the commonality
requirement in Rule 23(a); Plaintiff must show that the case is
subject to generalized proof applicable to the class as a whole.”
Pichardo, 2016 WL 4379421, at *10, R&R adopted sub nom., 2016 WL
5338551 (quoting Espinoza, 280 F.R.D. at 125) (internal quotation
“[A] court examining predominance must assess (1)
the elements of the claims and defenses to be litigated; and (2)
whether generalized evidence could be offered to prove those
elements on a class-wide basis or whether individualized proof
will be needed to establish each class member's entitlement to
Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 138 (2d
Cir. 2015) (quoting McLaughlin on Class Actions § 5:23) (internal
quotation marks omitted).
consistent with Rule 23, even where other issues—such as damages—
do not lend themselves to classwide proof.”
Id. (citing Augustin
v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d
219, 227 (2d Cir. 2006)).
“When one or more of the central issues
23(b)(3), even though other important matters will have to be tried
separately, such as damages or some affirmative defenses peculiar
to some individual class members.”
Pichardo, 2016 WL 4379421, at
*10, R&R adopted sub nom., 2016 WL 5338551 (quoting Tyson Foods,
Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)).
predominate in wage and hour actions brought on behalf of a class
of employees of the same employer challenging allegedly illegal
policies and practices.’” Fonseca, 2015 WL 5813382, at *5 (quoting
Murphy, 2015 WL 4528140, at *7 (collecting cases)).
allege that defendants’ employment policies and practices are
For all Class Members, the issues of whether they
received the required overtime premium, and whether they received
wage notices and wage statements, as well as spread-of-hours pay
And, as for the Subclass, the issue of
whether defendants violated New York’s minimum wage and spreadof-hours law also predominates.
Thus, the questions at issue here
predominate because defendants will likely be liable to all parties
or to none.
See Schear, 297 F.R.D. at 126 (holding that “class
plaintiffs succeed in proving the alleged unlawful policy “then
each of the class plaintiffs will likely prevail” on his or her
claims) (citing Shahriar, 659 F.3d at 253).
“‘Moreover, the fact that each Class Member’s damages
may vary is not relevant to the predominance inquiry, because
mathematical computations that are consistent with the theories of
liability.’” Fonseca, 2015 WL 5813382, at *6 (quoting Murphy, 2015
WL 4528140, at *7); see also Roach v. T.L. Cannon Corp., 778 F.3d
401, 407 (2d Cir. 2015) (noting that a classwide damages model is
not required to demonstrate predominance); Schear, 297 F.R.D. at
126 (finding that the calculation of damages for tips that were
“straightforward, mechanical process”).
damages would be a “straightforward mechanical process.”
Payroll Spreadsheets and the Weekly Worksheets provide the pay
rates and the hours worked for a number of the Subclass and Class
Thus, determining damages for plaintiffs’ minimum wage,
That the rate of pay or the hours worked would vary for
each Class Member does not defeat predominance because the same
basic formula would apply to each Class Member.
See Romero v. La
Revise Assocs., L.L.C., 58 F. Supp. 3d 411, 419 (S.D.N.Y. 2014)
(holding that “the need for individualized determinations of the
putative class members’ damages does not, without more, preclude
certification of a class under Rule 23(b)(3)”) (citation omitted);
(S.D.N.Y. 2013) (“[N]either the existence of individual defenses
nor difficulties in calculating damages in and of themselves defeat
the predominance requirement.”) (citation omitted).
plaintiffs’ have met the predominance requirement.
To proceed under Rule 23(b)(3), common questions must
not only predominate, but a class action must also be “superior to
other available methods for fairly and efficiently adjudicating
Fed. R. Civ. P. 23(b)(3).
hold that a class action is superior where, as here, potential
class members are aggrieved by the same policies, the damages
suffered are small relative to the expense and burden of individual
employed by the defendants.”
Fonseca, 2015 WL 5813382, at *6; see
also Torres v. Gristede’s Operating Corp., No. 04 Civ. 3316, 2006
WL 2819730, at *16 (S.D.N.Y. Sept. 29, 2006) (citations omitted)
(“Because litigation costs would likely exceed any gains from
overtime wage recovery, class members would be unlikely to litigate
individually. . . . In addition, since some class members are still
[defendants’] employees . . ., class members may fear reprisal and
would not be inclined to pursue individual claims.”).
Defendants’ argument that each Class Member “can easily
file claims with the New York State Department of Labor” is
unavailing. (Def, Opp., ECF No. 60 at 24.)
Courts regularly find
that where the proposed class “is significantly numerous and
possesses relatively small individual claims” and “many potential
class members are foreign-born, have limited reading and writing
skills, and may fear reprisal from Defendants,” a class action is
both “cost-efficient and fair” and “likely the only device by which
many of the proposed class members would obtain relief.”
“given that the NYLL claims are nearly identical to the FLSA
claims”); Damassia, 250 F.R.D. at 164 (holding that FLSA and NYLL
class claims should be tried together “because it allows for a
more cost-efficient and fair litigation of common disputes”);
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”); see also Myers v. Hertz
Corp., 624 F.3d 537, 547 (2d Cir. 2010) (holding that the proposed
class action will “achieve economies of time, effort, and expense,
about other undesirable results” (internal quotation marks and
citation omitted)). Accordingly, a class action is the superior
method for adjudicating this case.
23(b)(3)’s requirements, the class certification motion is hereby
C. Appointment of Class Counsel
certifies a class action must . . . appoint class counsel under
Rule 23(g).” Counsel for the named plaintiffs request that the
court designate their firm, Pelton Graham LLC, as counsel for the
Rule 23(g)(1)(A) sets forth four factors that must be
considered in appointing class counsel:
(i) the work counsel has done in identifying
or investigating potential claims in the
action; (ii) counsel’s experience in handling
class actions, other complex litigation, and
the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable
law; and (iv) the resources that counsel will
commit to representing the class.
A court may also consider “any other matter pertinent to
counsel’s ability to fairly and adequately represent the interests
of the class.”
Fed. R. Civ. P. 23(g)(1)(B).
As discussed above, counsel for plaintiffs has presented
evidence of their extensive experience litigating wage and hours
cases and knowledge concerning the applicable law.
represented the plaintiffs in this action since its inception and,
investigating the potential claims in the action.
(Id. at ¶ 7.)
Finally, Pelton Graham LLC has acted as lead or class counsel in
multiple cases in this district.
(See id. at ¶¶ 8-9 (listing cases
where Pelton Graham LLC was either lead counsel or class counsel).)
Plaintiffs have demonstrated the firm’s commitment and financial
ability to represent the NYLL class.
Accordingly, Pelton Graham
LLC is appointed as counsel for the Class.
D. Proposed Class Notice
pursuant to Fed. R. Civ. P. 23(c)(2).
(ECF No. 57-14.)
23(c)(2)(B) requires that the court direct that “class members [be
provided with] the best notice that is practicable under the
circumstances, including individual notice to all members who can
be identified through reasonable effort.”
See also Fed. R. Civ.
P. 23(e)(1) (“The court must direct notice in a reasonable manner
to all class members who would be bound by the proposal.”).
notice must describe:
(i) the nature of the action; (ii) the
definition of the class certified; (iii) the
class claims, issues, or defenses; (iv) that
a class member may enter an appearance through
an attorney if the member so desires; (v) that
the court will exclude from the class any
member who requests exclusion; (vi) the time
and manner for requesting exclusion; and (vii)
the binding effect of a class judgment on
members under Rule 23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B).
Defendants have objected to the plaintiffs’ proposed
Class Notice and submitted a proposed Class Notice with revisions.
(See ECF Nos. 68-69.)
Plaintiffs’ have consented to some of
defendants’ proposed revisions.
(ECF No. 70.)
The court finds no
issue with revisions that the plaintiffs’ have consented to.
court addresses the defendants’ other proposed revisions in turn
First, defendants’ revisions as to the scope of the
proposed Class Notice is rejected.
(ECF No. 69 at 3-4.)
has found, as discussed in detail above, that the Class and
Next, the court rejects defendants’ suggested addition
to Paragraph No. 3 to include language regarding the court’s
position, and the deletion of Paragraph No. 5.
(ECF No. 69 at 3-
Plaintiffs’ proposed Class Notice already contains similar
language to that requested by defendants in Paragraph No. 5 and at
the end of the Class Notice.
The proposed Class Notice adequately
certification, but not the merits of the case at this juncture.
distribute the Spanish translation of the Class Notice.
68 at ¶ 4.)
The Spanish translation of the Class Notice shall be
distributed in the same manner as the court-approved Class Notice.
certified Spanish language translator of the court-approved Class
plaintiffs’ counsel’s distribution of the court-approved Class
Notice to be without merit.
(Id. at ¶ 5.)
Defendants’ did not
object to plaintiffs’ counsel’s distribution of the 216(b) Notice,
and defendants have not provided any facts supporting its arguments
that plaintiffs’ counsel will not properly distribute the Class
The court will, however, allow the parties to decide
between having the court-approved Class Notice being distributed
by a third-party claims administrator or by plaintiffs’ counsel.
Paragraph No. 10 to include language “encouraging” Class Members
to “hear both sides’ perspectives in this action.”
(ECF No. 69 at
Because the court has decided to certify the class, this
revision would run in direct contravention with New York Rule of
Professional Conduct 4.2(a), which prohibits an attorney from
represented party about subject of the representation. See Jackson
v. Bloomberg L.P., No. 13-CV-2001 JPO, 2015 WL 1822695, at *2
(S.D.N.Y. Apr. 22, 2015) (“Rule 4.2 applies to members of a class
after class certification.”); Gortat v. Capala Bros., No. 07-CV3629 (ILG) (SMG), 2010 WL 1879922, at *2 (E.D.N.Y. May 10, 2010),
(E.D.N.Y. Aug. 27, 2010) (“[U]pon certification, defense counsel
is bound by New York Rule of Professional Conduct 4.2(a),” which
provides that “a lawyer shall not communicate or cause another to
communicate about the subject of the representation with a party
the lawyer knows to be represented by another lawyer in the matter,
unless the lawyer has the prior consent of the other lawyer or is
authorized to do so by law.”).
Next, the court finds that a 60-day opt-out period would
Further, the court is concerned about intimidation that some Class
Members may face because many are still employed at the Buccaneer
Moreover, the court finds that a 30 day-opt out period is
enough time for Class Members to decide if they wish to participate
in the suit.
Accordingly, defendants’ revision extending the opt-
out period to 60 days is denied.
Sixth, the court denies defendants’ suggested revision
to the court authorization language near the end of the proposed
(ECF No. 69 at 6.)
The court finds the language in
plaintiffs’ proposed Class Notice is clear and concise.
57-14, Ex. 14 to Pelton Decl., Proposed Class Notice at 3.)
Further, similar language is routinely approved in class and
See Fa Ting Wang v. Empire State Auto Corp.,
No. 14-CV-1491 WFK VMS, 2015 WL 4603117, at *18 (E.D.N.Y. July 29,
authorization and collecting other cases requiring this language).
Next, the Class Notice shall include language relating
to attorneys’ fees.
(ECF No. 68 at ¶ 10.)
The Class Notice shall
use the same language included in the Court-approved 216(b) Notice,
except that the phrase “collective action” shall be replaced with
the phrase “class action.”
rejected because the court finds that they do not improve upon the
clarity of the proposed Class Notice.
For the foregoing reasons, plaintiffs’ motion for class
certification is GRANTED and the court ORDERS:
failure to provide wage notices and wage statements, as
well as spread-of-hours claims accruing on or after January
1, 2011 (the “Class Claims”), on behalf of a class defined
as: all servers, bussers, dishwashers, delivery employees,
food preparers and cooks who worked at Buccaneer Diner (the
“Class” or “Class Members”) at any time from January 30,
2009 through the present (the “Class Period”) is hereby
2. Plaintiffs’ NYLL claims for unpaid minimum wage and such
spread-of-hours claims as accrued prior to January 1, 2011
(the “Minimum Wage Claims” or “Subclass Claims”) on behalf
dishwashers, delivery employees and food preparers (the
“Minimum Wage Subclass” or “Subclass Members”), who worked
3. Named Plaintiffs Emmanuel Cazares and Erick Perez are
hereby appointed as class representatives for the Class
and the Subclass;
4. Pelton Graham LLC is hereby appointed as Class Counsel;
5. Defendants shall furnish to plaintiffs’ counsel or a thirdparty claims administrator in electronically readable form
plaintiffs can issue class notice;
6. Plaintiffs and defendants shall meet and confer, and by
April 14, 2017: (i) submit a joint revised proposed class
notice; and (ii)
advise the court whether a third-party
claims administrator will be engaged or whether plaintiffs’
counsel will serve the court-approved Class Notice.
March 31, 2017
Brooklyn, New York
Hon. Kiyo A. Matsumoto
United States District Judge
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