Cazares et al v. AVA Restaurant Corp. et al

Filing 76

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
--------------------------------------X
EMMANUEL CAZARES and ERICK PEREZ,
Individually and on Behalf of All
Others Similarly Situated,

MEMORANDUM AND ORDER
15-CV-0477 (KAM)(RML)

Plaintiffs,
-against-

AVA RESTAURANT CORP d/b/a BUCCANEER
DINER and COSTAS ALEXIOU, Jointly
And Severally,

Defendants.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiffs Emmanuel Cazares (“Cazares”) and Erick Perez
(“Perez”

collectively

with

Cazares

“Named

Plaintiffs”

or

“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.

Presently

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.
1

Background
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
43.)

(Id. at ¶¶ 1, 35,

Plaintiffs allege that prior to the filing of this lawsuit,

defendants never paid overtime premiums to any of their employees,
and

paid

the

vast

majority

of

their

significantly below the minimum wage.

employees

at

rates

(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,

60-61.)
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.
69-93.).

(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.
(See So
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.

2

respectively, unpaid minimum wage and unpaid overtime.
68-75.)

(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
On

July

22,

2015,

(Id. at ¶¶ 76-93.)

plaintiffs

moved

for

conditional

certification of the collective action under the FLSA.
16.)

The

motion

was

unopposed

and

on

September

(ECF No.
14,

2015,

Magistrate Judge Robert M. Levy conditionally certified the FLSA
collective action.

(See Minute Entry dated September 14, 2015.)

On March 24, 2016, plaintiffs moved for spoliation sanctions
against defendants after learning that defendant Alexiou discarded
a

computer

containing

Buccaneer

Diner’s

employment

records,

including the payroll records at issue in this litigation.
No. 40 at 1.)

(ECF

On July 14, 2016, Magistrate Judge Levy found that

defendants failed to preserve electronically stored information

2

Plaintiffs are not seeing class certification for the uniform expense claim
at this time. (Pl. Mem., ECF 56 at 3.)

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
information.

(See Minute Entry dated July 14, 2016.)

On July 28

and July 29, 2016, the parties filed their fully briefed class
certification papers.

(ECF Nos. 55-63.)
Discussion

I.

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;
(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); 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.
This

implied

requirement

is

often

referred

to

as

‘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

4

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.

Sumitomo Copper

Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d
Cir.2001).

Additionally, the district court has the ability to

“alter or modify the class, create subclasses, and decertify the
class whenever warranted.”

Id.

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
action.

See

certification

Cordes,
under

502

Rule

F.3d

at

23(b)(3),

104.
which

Plaintiffs
allows

for

seek
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
class

counsel,’

considering

the

work

counsel

applying

for

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)).
5

“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
effort.’”

Reyes, 2016 WL 4064042, at *3 (citing Fed. R. Civ. P.

23(c)(2)(B)).
A

plaintiff

moving

for

class

certification

must

establish each of the Rule 23 requirements by a preponderance of
the evidence.

See Teamsters Local 445 Freight Div. Pension Fund

v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008).

When

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
23

requirement

have

been

established.”

In

re

Initial

Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).

Pub.

Although

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.”

Id.

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).
6

II.

Analysis
For the reasons discussed herein, the court finds that

plaintiffs

have

satisfied

the

requirements

of

Rule

23,

and

therefore, class certification is appropriate.
A. Rule 23(a)
i. Numerosity
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.

Plaintiffs

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
the

alleged

Class

Members.

(Memorandum

of

Law

In

Support

of

Plaintiffs’ Motion for Class Certification (“Pls. Mem.”), ECF No.
56

at

15.)

The

Payroll

Spreadsheets

show

sixty

employees.

(Payroll Spreadsheets, Exhibit (“Ex.”) 1 to the Declaration of
Brent E. Pelton (“Pelton Decl.”), ECF No. 57-1 at 1.)

Plaintiffs

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
7

year.

(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.

Accordingly,

See Reyes, 2016 WL

4064042, at *4 (numerosity satisfied where records show that the
class had more than forty members).
As

for

the

Subclass,

which

includes

all

servers,

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
food preparers.

(Alexiou Dep., Ex. 6 to Pelton Decl., ECF No. 57-

6 at 8:7-16.)

Thus, it is highly likely that at least forty

servers,

bussers,

preparers

were

dishwashers,

employed

delivery

during

the

employees
significantly

and

food

shorter

Collective Action Period alone, thus satisfying numerosity for the
Subclass.
burden

Defendants argue that plaintiffs have not carried their

because

plaintiffs

produced by defendants.
arguments

meritless

spreadsheet

in

and

response

rely

on

the

Payroll

Spreadsheets

The court respectfully finds defendants’
frivolous.
to

Defendants

plaintiffs’

document

produced

the

requests

for

relevant documents, and plaintiff should be entitled to rely on
them.

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
8

plaintiffs have established that numerosity is satisfied for the
Class

and

Subclass

by

a

preponderance

of

the

evidence.

See

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
members).
ii. Commonality
To establish commonality, the plaintiffs must show that
“there are questions of law or fact common to the class.”
Civ. P. 23(a)(2).

Fed. R.

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.”
Wal-Mart

Stores,

Inc.

v.

Dukes,

564

U.S.

338,

350

(2011).

“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
a

common

policy

or

practice

of

9

unlawful

labor

practices.”

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
premiums

and

spread-of-hours

premiums

for

all

Class

Members.

(Declaration of Matias Vega, Ex. 10 to Pelton Decl., ECF No. 5710 at ¶ 4-8; Payroll Spreadsheets, Ex. 1 to Pelton Decl., ECF No.
57-1.)

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
U.S.

at

349-50);

see

Shahriar,

659

F.3d

at

252

(commonality

requirement satisfied where plaintiffs’ “NYLL class claims all
derive

from

practices”).

the

same

compensation

Accordingly,

the

policies

commonality

and

tipping

requirement

is

satisfied.
Defendants argue that because plaintiffs were paid in
cash, the commonality requirement is not met because different
10

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.

The

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
premium.

The court finds that defendants’ arguments in opposition

fail, and that plaintiffs have met the commonality requirement.
iii. Typicality
“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)).
“Typicality

‘requires

that

the

claims

representatives be typical of those of the class.’”

of

the

class

Cent. States

Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care,
11

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)).
“The

typicality

requirement

serves

to

‘ensure

that

a

class

representative has the incentive to prove all the elements of the
cause of action which would be presented by the individual members
of

the

class

were

they

initiating

individualized

actions.’”

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.
at 71).
“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

underlying [the] claims.”

variations

in

the

fact

patterns

Schear v. Food Scope Am., Inc., 297

F.R.D. 114, 124 (S.D.N.Y. 2014) (quoting Robidoux v. Celani, 987
F.2d

931,

936-37

(2d

Cir.

1993)).

“Differences

among

the

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))
(modifications omitted).
12

The

preponderance

of

the

evidence

before

the

court

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.

The

Payroll Spreadsheets show that the purported Subclass Members were
paid wage rates far below the federal or state minimum wage.
Payroll

Spreadsheets,

Ex.

1

to

Pelton

Decl.,

ECF

No.

(See

57-1.)

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
of

the

class

because

none

of

the

plaintiffs

worked

preparers or cooks. (Defs. Opp., ECF No. 60 at 17.)

as

food

Defendants

argument fails, however, because typicality is usually found where
13

the “same unlawful conduct was directed at or affected both the
named plaintiff and the class sought to be represented.”

Fonseca

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
same

alleged

unlawful

employment

policies.

Accordingly,

plaintiffs have carried their burden of establishing typicality.
iv. Adequacy
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.”
P. 23(a)(4).

Fed. R. Civ.

“A class representative must be part of the class

and possess the same interest and suffer the same injury as the
class members.”

Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 625–

26 (1997) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez,
431

U.S.

395,

403

(1977))

modifications omitted).

(internal

quotation

marks

and

“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.
14

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.”
625.

Amchem Prods., 521 U.S. at

“A conflict must be fundamental for it to defeat a motion

for certification.”

Murphy, 2015 WL 4528140, at *5 (citing In re

Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.
2009)).
Defendants argue that plaintiffs are “untrustworthy” and
are not adequate class representatives because one of the named
plaintiffs

allegedly

“tricked”

an

employee

into

joining

the

lawsuit and plaintiffs’ counsel failed to explain certain forms to
the employee.

(Defs, Opp., ECF No. 60 at 19-20.)

Defendants cite

certain inconsistencies between Perez and Cazares’ deposition and
the declarations submitted in support of this motion.

(Id.)

Defendants’ argument fails because inconsistencies or inaccuracies
in

the

named

plaintiff’s

misunderstanding,

or

may

statements
raise

an

may

issue

reflect
as

to

either

a

plaintiff’s

credibility, but do not necessarily disqualify him as an adequate
class representative.

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
necessarily

disqualify

plaintiff

from

serving

as

a

class

representative”); Jackson v. Bloomberg LP, 298 F.R.D. 152, 165
15

(S.D.N.Y.

2014)

(a

“possible

discrepancy”

between

plaintiff’s

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
this action.

Instead, the defendants have already been found to

be in violation of Fed. R. Civ. P 37(e), by failing to preserve
discoverable

evidence,

namely

Buccaneer Diner’s computer.

the

payroll

records

stored

on

(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.
16

(Id. at 20:4-17.)

Defendant Alexiou’s admissions raise serious concerns about his
conduct.
Plaintiffs’ conduct, on the other hand, shows that they
are able to prosecute this action vigorously.

Plaintiffs have

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
industry.

Plaintiffs’ counsel has spent significant time and work

preparing this action for litigation, including marshalling the
available evidence in light of defendants’ spoliation.

(Pelton

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
17

adequate who specialized in labor and employment litigation and
who “was ready, willing and able” to represent the class).
v. Ascertainability
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.”
Id.

(quoting Stinson v. City of N. Y., 282 F.R.D. 360, 367

(S.D.N.Y. 2012)).

Here, the proposed class is easily identifiable

from

records:

defendant’s

delivery

employees,

food

all

servers,

preparers

and

bussers,
cooks

dishwashers,

who

Buccaneer Diner at any time during the Class Period.

worked

at

The proposed

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
during

different

days

of

the

Class

Period,

that

is

largely

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
ascertainability.

Besides, the court finds that the Payroll
18

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).

Fed.

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.
i. Predominance
“The Rule 23(b)(3) predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant adjudication
by

representation.”

Amchem

Prod.,

521

U.S.

at

623.

“The

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.”
19

Pichardo, 2016 WL 4379421, at *10, R&R adopted sub nom., 2016 WL
5338551 (quoting Espinoza, 280 F.R.D. at 125) (internal quotation
marks omitted).

“[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
relief.”

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).
“Common

issues—such

as

liability—may

be

certified,

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)).
in

the

action

predominate,

are

the

“When one or more of the central issues

common

action

to

may

the
be

class

and

considered

can

proper

be

said

under

to

Rule

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)).
The
“District

predominance

courts

‘have

requirement

routinely
20

found

is
that

satisfied
common

here.

questions

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)).

Plaintiffs

allege that defendants’ employment policies and practices are
unlawful.

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
accruing

on

or

after

January

individualized inquiries.

1,

2011,

predominate

over

all

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.
issues

See Schear, 297 F.R.D. at 126 (holding that “class

predominate

over

individualized

issues

because”

if

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
damages

calculations

merely

entail

the

application

of

simple

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
21

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
allegedly

unlawfully

retained

and

distributed

was

a

“straightforward, mechanical process”).
Here,

if

defendants

are

found

liable,

calculating

damages would be a “straightforward mechanical process.”

Id.

The

Payroll Spreadsheets and the Weekly Worksheets provide the pay
rates and the hours worked for a number of the Subclass and Class
Members.

Thus, determining damages for plaintiffs’ minimum wage,

overtime,

and

performing
produced.

spread-of-hours

simple

arithmetic

claims
using

would

the

be

data

a

matter

defendants

of

have

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);
Vaccariello

v.

XM

Satellite

Radio,

Inc.,

295

F.R.D.

62,

73

(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.
22

Accordingly,

ii. Superiority
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
the controversy.”

Fed. R. Civ. P. 23(b)(3).

“Courts routinely

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
litigation,

and

some

potential

employed by the defendants.”

class

members

are

currently

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
23

both “cost-efficient and fair” and “likely the only device by which
many of the proposed class members would obtain relief.”
v.

Sherwood

1527731,

at

modifications

Landscaping
*15

Inc.,

(E.D.N.Y.

omitted)

No.

CV

Mar.

(adding

13-2640

31,

that

(AKT),

2015)

class

Moreira
2015

(citations

action

is

WL
and

superior

“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”);
Iglesias–Mendoza,
unlikely”

that

239

F.R.D.

proposed

at

class

373

(finding

it

would

pursue

members

“extremely
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”); 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,
and

promote

situated,

uniformity

without

of

decision

sacrificing

as

procedural

to

persons

fairness

or

similarly
bringing

about other undesirable results” (internal quotation marks and
citation omitted)). Accordingly, a class action is the superior
method for adjudicating this case.
As

plaintiffs

have

satisfied

Rule

23(a)

and

Rule

23(b)(3)’s requirements, the class certification motion is hereby
GRANTED.
24

C. Appointment of Class Counsel
Rule

23(c)(1)(B)

provides

that

“[a]n

order

that

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
NYLL class.
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.
Id.

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.
ECF

No.

57

at

¶¶

2-9.).

Moreover,

Pelton

(Pelton Decl.,
Graham

LLC

has

represented the plaintiffs in this action since its inception and,
therefore,

has

expended

substantial

resources

identifying

investigating the potential claims in the action.

and

(Id. at ¶ 7.)

Finally, Pelton Graham LLC has acted as lead or class counsel in

25

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
Plaintiffs

have

submitted

a

pursuant to Fed. R. Civ. P. 23(c)(2).

proposed

Class

Notice

(ECF No. 57-14.)

Rule

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.”).

The

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.

26

(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.

The

court addresses the defendants’ other proposed revisions in turn
below.
First, defendants’ revisions as to the scope of the
proposed Class Notice is rejected.

(ECF No. 69 at 3-4.)

The court

has found, as discussed in detail above, that the Class and
Subclass,

as

defined

by

plaintiffs,

meet

Rule

23’s

class

certification requirements.
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.
4.)

(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.
and

concisely

explains

The proposed Class Notice adequately

that

the

court

has

decided

class

certification, but not the merits of the case at this juncture.
Third,

the

court

rejects

defendants’

request

distribute the Spanish translation of the Class Notice.
68 at ¶ 4.)

to

(ECF No.

The Spanish translation of the Class Notice shall be

distributed in the same manner as the court-approved Class Notice.
Further,

plaintiffs

shall

create

a

Spanish

translation

by

a

certified Spanish language translator of the court-approved Class
27

Notice

and

submit

the

Spanish

translation

to

defendants

for

defendants’

objections

to

approval.
Next,

the

court

finds

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
Notice.

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.
Fifth,

the

court

denies

defendants’

revision

to

Paragraph No. 10 to include language “encouraging” Class Members
to “hear both sides’ perspectives in this action.”
6.)

(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
communicating

“or

caus[ing]

another

to

communicate”

with

a

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),
objections

overruled,

No.

07-CV-3629
28

ILG,

2010

WL

3417847

(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
unnecessarily

delay

this

litigation.

(ECF

No.

68

at

¶

8.)

Further, the court is concerned about intimidation that some Class
Members may face because many are still employed at the Buccaneer
Diner.

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
Class Notice.

(ECF No. 69 at 6.)

The court finds the language in

plaintiffs’ proposed Class Notice is clear and concise.

(ECF No.

57-14, Ex. 14 to Pelton Decl., Proposed Class Notice at 3.)
Further, similar language is routinely approved in class and
collective notices.

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,

29

2015)

(approving

nearly

identical

language

regarding

court

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.”
Finally,
revisions

to

the

defendants
proposed

make

Class

several

Notice.

other

Those

stylistic

revisions

are

rejected because the court finds that they do not improve upon the
clarity of the proposed Class Notice.

30

Conclusion
For the foregoing reasons, plaintiffs’ motion for class
certification is GRANTED and the court ORDERS:
1. Plaintiffs’

NYLL

claims

for

unpaid

overtime

premiums,

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
certified;
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
of

a

sub-class

defined

as:

all

servers,

bussers,

dishwashers, delivery employees and food preparers (the
“Minimum Wage Subclass” or “Subclass Members”), who worked
at

Buccaneer

Diner

during

the

Class

Period

is

hereby

certified;
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;
31

5. Defendants shall furnish to plaintiffs’ counsel or a thirdparty claims administrator in electronically readable form
the

contact

information,

positions/titles

of

all

dates
members

of
of

employment
the

Class

and

job

so

that

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.
SO ORDERED.
Dated:

March 31, 2017
Brooklyn, New York

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

32