Megason v. Starjem Restaurant Corp.
Filing
72
MEMORANDUM AND ORDER granting in part and denying in part 51 Motion to Certify Class. We hereby certify the class pursuant to Rule 23. Plaintiffs' motion is granted insofar as this Court certifies the proposed class pursuant to Rule 23, appoin ts plaintiffs' counsel as class counsel, and authorizes the mailing the proposed notice to class members. The Court also orders defendants to produce to plaintiffs a list of employees' names, contact information and dates of employment, but denies plaintiffs' request for job titles and social security numbers. This Memorandum and Order resolves Docket No. 51. (Signed by Judge Naomi Reice Buchwald on 1/10/2014) Copies Mailed By Chambers. (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
RON MEGASON, on behalf of himself
and others similarly situated,
Plaintiff,
MEMORANDUM AND ORDER
- against -
12 Civ. 1299 (NRB)
STARJEM RESTAURANT CORP. d/b/a
FRESCO BY SCOTTO,
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Named
plaintiff
Ron
Megason,
a
server
employed
by
the
Manhattan restaurant Fresco by Scotto (“Fresco”), brings this
action
on
behalf
of
himself
and
others
similarly
situated
against his employer pursuant to the Fair Labor Standards Act
(“FLSA”) and New York Law (“NYLL”).
Plaintiff alleges that
defendant engaged in three distinct, unlawful practices: first,
requiring
that
servers
share
tips
with
two
allegedly
tip-
ineligible restaurant managers; second, requiring that servers
share tips with two categories of employees whose back-of-house
duties
allegedly
rendered
them
tip-ineligible
as
well;
and
third, illegally withholding the “spread of hours” compensation
mandated
by
New
York
Labor
Law.
In
the
instant
motion,
plaintiffs seek certification pursuant to Fed. R. Civ. P. 23 of
a class of Fresco servers, and court-approved notice thereto.
For the reasons stated herein, plaintiff’s motion is granted in
part and denied in part.
BACKGROUND1
I.
Procedural History
Although this action commenced on February 21, 2012 with
the
filing
of
plaintiffs’
initial
complaint,
procedural history began considerably earlier.
the
relevant
On August 12,
2010, Fresco waiter Gary Gillian brought a prior suit on behalf
of
himself
Restaurant
and
Corp.
all
those
and
similarly
Fresco
owner
situated
Marion
violations of the FLSA and New York law.
against
Scotto
for
Starjem
alleged
Pls. Mem. at 2; see
also Gillian v. Starjem Rest. Corp., No. 10 Civ. 6056 (JSR)
(S.D.N.Y. Aug. 12, 2010), Dkt. 1.
Gillian
suit
included
claims
that
Specific allegations in the
Fresco
illegally
required
employees to share tips with managers and non-service employees
while improperly taking advantage of the tip credit, and also
1
The background draws upon the Second Amended Complaint (“Compl.”),
filed August 19, 2013; Plaintiffs’ Memorandum of Law in Support of their
Motion for Class Certification, filed June 26, 2013 (“Pls. Mem.”); the
Declaration of Douglas Weiner, Esq. in Support of Plaintiffs’ Motion for
Class Certification (“Weiner Decl.”), filed June 26, 2013, the exhibits
annexed thereto, and the accompanying declarations of seven plaintiffs;
Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion, filed July
29, 2013 (“Defs. Opp.”); the Declaration of Craig R. Benson, Esq. in
Opposition to Plaintiffs’ Motion (“Benson Decl.”), filed July 29, 2013, the
exhibits annexed thereto and accompanying declarations; the Reply Memorandum
of Law in Further Support of Plaintiffs’ Motion for Class Certification,
filed August 9, 2013 (“Pls. Reply Mem.”); the Reply Declaration of Douglas
Weiner, Esq. in Further Support of Plaintiffs’ Motion for Class
Certification, filed August 9, 2013 (“Weiner Reply Decl.”) and the exhibit
annexed thereto; and also the submissions in Gillian v. Starjem Rest. Corp.,
No. 10 Civ. 6056 (JSR) and Salinas v. Starjem Rest. Corp., No. 13 Civ. 2992
(AT).
2
used a set shift pay model that compensated staff at rates below
minimum wage.
class
of
Id.
Unlike the case sub judice, the proposed
plaintiffs
in
Gillian
included
all
tipped
Fresco
employees, including servers, bussers, runners and bartenders.
Pls. Mem. at 2-3.
Plaintiffs
to
that
action
then
filed
motions
for
FLSA
conditional certification and Rule 23 class certification, while
defendants moved for partial summary judgment.
Civ. 6056 (JSR), Dkts. 20, 39, 41.
Gillian, No. 10
In an October 4, 2011
decision denying all three motions, Judge Rakoff found, inter
alia,
that
the
Gillian
plaintiffs
had
“utterly
failed
to
demonstrate that they are similarly situated to other putative
class members with respect to the legality of the tip pool.”
Gillian, No. 10 Civ. 6056 (JSR), Dkt. 71 at 15.
This was
because the proposed Gillian class included runners and bussers,
who rotated among themselves the positions of expediters and
stockers — the very positions alleged to be tip ineligible.
In
other words, the Gillian plaintiffs were “seeking to represent
the same group of individuals who they allege were not properly
participating in the tip pool.”
Rakoff
held
that
diverged,
for
adversely
affect
represent.”
the
“the
interests
named
some
Id. at 15.
of
Id. at 15-16.
of
plaintiffs
the
proposed
seek
individuals
Hence, Judge
class
relief
they
members
that
may
purport
to
In light of this conflict of interest,
3
Judge
Rakoff
held
that
plaintiffs
failed
to
meet
the
requirements for Rule 23 class certification (in particular, the
adequacy prong) and even failed to meet the lesser standard
necessary
for
FLSA
conditional
certification.
Id.
Unsurprisingly, shortly after Judge Rakoff’s order, plaintiffs
Gary
Gillian
and
two
others
entered
with
stipulation of dismissal with prejudice.
defendants
into
a
Gillian, No. 10 Civ.
6056 (JSR) (S.D.N.Y. Dec. 23, 2011), Dkt. 72.
Represented by the same counsel as the Gillian plaintiffs,
plaintiff server Ron Megason filed suit in this action shortly
thereafter, on February 21, 2012.
The gravamen of the complaint
in this case mirrors that brought by the Gillian plaintiffs —
both sets of plaintiffs alleged that Fresco’s policy of sharing
server tips with Fresco management and tip-ineligible expediters
and stockers violated the FLSA and New York Labor Law.
Also, as
before, plaintiff Megason makes a claim under state law for
unlawfully withheld “spread of hours” pay.
differs
from
Megason
brings
unlike
Pls.
the
Gillian,
Mem.
at
Gillian
suit
only
plaintiff
3.
case,
on
behalf
Megason
Defendant
complaint on March 28, 2012.
however,
of
makes
Starjem
The case at bar
in
that
Fresco
no
plaintiff
servers,
shift-pay
answered
the
and,
claims.
initial
Plaintiff amended his complaint
first on September 6, 2012 and subsequently on August 19, 2013,
after briefing the instant motion; the operative second amended
4
complaint formally added as a defendant Anthony Scotto, Jr.,
owner and manager of Fresco.
Defendants answered the first and
second amended complaints on September 24, 2012 and September 6,
2013, respectively.
By stipulation of September 28, 2012, the parties agreed to
incorporate
into
the
record
of
the
instant
action
the
evidentiary record created in the Gillian action, including most
documents and deposition testimony.
Megason v. Starjem Rest.
Corp., No. 12 Civ. 1299 (NRB) (S.D.N.Y. Sept. 28, 2012), Dkt.
21.
The
parties
also
engaged
in
further
discovery
through
June 17, 2013.
Rather than contest by motion the conditional certification
of
a
class
of
plaintiffs
pursuant
to
the
FLSA,
defendants
instead consented by stipulation of December 21, 2012 to the
issuance of a “Notice of Pendency” regarding the FLSA claims to
individuals who worked as Fresco servers between August 11, 2009
and January 8, 2013.
Plaintiff’s counsel sent the stipulated
notice on January 21, 2013, and eighteen former and current
servers have filed opt-in forms for the FLSA claims.
This motion for class certification of the New York state
law claims pursuant to Rule 23 was filed on June 26, 2013.
Defendants opposed on July 29, 2013, and plaintiffs replied on
August
9,
2013.
Oral
argument
December 19, 2013.
5
on
this
motion
was
held
on
At the close of oral argument, the parties revealed for the
first
time
associated
Fresco.
that,
suit
unbeknownst
has
been
to
brought
the
in
Court,
this
yet
another
District
against
Oral Argument Transcript (“Tr.”) at 53.
In a separate
action now pending before Judge Analisa Torres, thirteen present
and
former
Fresco
employees
employed
as
busboys
and
runners
filed suit against Starjem Restaurant Corp, Marion Scotto and
Anthony Scotto for violations of the FLSA and New York Labor
Law.
Salinas v. Starjem Rest. Corp., No. 13 Civ. 2992 (AT)
(S.D.N.Y. May 3, 2013), Dkt. 1.
Apparently, in the wake of
Judge Rakoff’s October 4, 2011 Gillian opinion observing the
fundamental conflict of interest between the server plaintiffs
and
the
non-server
plaintiffs
(i.e.,
bussers,
runners,
expediters, and stockers), the two sets of plaintiffs chose to
refile their claims in separate actions, with the former group
comprising the proposed class in this suit and the latter the
proposed class in the Salinas action.2
The Salinas plaintiffs
brought similar claims to those brought in this case, but the
specific facts alleged — particularly with regard to the time
spent providing customer service by bussers and runners — differ
in material respects from those alleged by Mr. Megason and the
2
Counsel are reminded for future reference that the Civil Cover Sheet
both requires counsel to list any similar case previously filed in this Court
and to indicate whether any newly-filed case is potentially related to an
earlier-filed case. The failure of counsel here and in Salinas to do so is
especially troublesome, because counsel were surely well aware of the prior
actions.
6
opt-in plaintiffs here.
brought
his
complaint,
Filed over a year after Mr. Megason
the
Salinas
suit
is
still
in
the
preliminary stages, with a motion for conditional certification
pursuant
to
the
FLSA
anticipated
following
the
close
of
testimonial discovery on January 12, 2014.
II.
Factual Allegations
In the case at bar, plaintiff Ron Megason, the eighteen
opt-in plaintiffs, and others in the proposed class work or have
worked as servers employed by defendant Starjem Restaurant Corp.
and doing business as Fresco by Scotto, an Italian restaurant in
midtown Manhattan.
Compl. ¶¶ 4-5, 9, 15.
Individual defendant
Anthony
the
of
¶¶ 6-7.
Scotto
is
owner
and
manager
Fresco.
Compl.
Because plaintiffs constituted “tipped employees” under
federal and state law, their employer could and did invoke the
statutory “tip credit” provision, permitting employers to pay
tipped employees at an hourly wage rate below the minimum wage,
provided that the hourly wage and the employees’ tips, taken
together, are at least equivalent to the minimum wage.3
See 29
U.S.C. § 203(m); N.Y. Labor Law § 652(4).
Fresco’s wait staff participated in a “tip pool,” whereby
tips were collected for each shift and redistributed to tip
3
Under federal law, the minimum required cash wage that an employer can
pay a tipped employee is $2.13 per hour, so the maximum tip credit that the
employer can claim per employee is $5.12 per hour. See U.S. DEPT. OF LABOR, WAGE
Under state law, the minimum required cash wage
AND HOUR DIVISION FACT SHEET #15.
for tipped food service employees is currently $5.00 per hour.
N.Y. Comp.
Codes R. & Regs. tit. 12, § 146-1.3.
7
eligible employees according to a point-based system, in which
one point was assigned to floor and party servers, 0.75 points
to runners and expediters, 0.6 points to the coffee man, 0.5
points to the busboys and stockers, and up to 1.5 points to the
floor
captain.
Defs.
Opp.
at
3-4.
The
allocation
system
differed to some extent for shifts involving private parties.
For private parties occurring prior to June 2011, Fresco imposed
a 20% service charge, 15% of which was apportioned to the party
captain on duty, while the remaining 85% was assigned to the tip
pool, to be distributed according to the standard point system.
Defs. Opp. at 4.
For private parties held in June 2011 and
thereafter, Fresco imposed a 17% service charge and a separate
3% administrative fee; the former became part of the tip pool in
its
entirety,
captain.4
while
the
latter
was
retained
by
the
party
Defs. Opp. at 4-5.
The tip share system was administered by Fresco’s servers,
who
calculated
accordingly,
and
the
tip
maintained
company bookkeeper.
allocations,
records
Defs. Opp. at 4.
4
to
be
distributed
processed
tips
by
the
Although management was
Hence, both before and after June 2011, plaintiff employees who worked
private party shifts were guaranteed to receive gratuities amounting to 17%
of the total bill, which may well have exceeded the compensation they could
have expected under a standard system of discretionary tipping alone. The
facts here thus differ from many FLSA tip-sharing suits in which plaintiff
employees receive less tip compensation than expected by virtue of the
improper distribution to tip-ineligible employees. Contra Chan v. Sung Yue
Tung Corp., 03 Civ. 6048 (GEL), 2007 WL 313483, at *14-16 (S.D.N.Y. Feb. 1,
2007) (plaintiff employees retained only three quarters—or 11.25%—of a 15%
fixed banquet fee, while the remaining 3.75% was improperly allocated to
managers).
8
not
involved
plaintiffs’
system
in
the
daily
declarations
predated
their
operation
uniformly
Decl.
¶¶
3-8;
Broderick
the
state
employment
endorsement of the wait staff.5
of
and
tip
that
pool,
the
operated
tip
without
the
pool
the
Megason Decl. ¶¶ 3-7; Barrera
Decl.
¶¶
3-8;
Perry
Decl.
¶¶
3-8;
Rodriguez Decl. ¶¶ 3-7; Zadoff Decl. ¶¶ 3-8.
During the relevant time period, two alleged managers —
Attilio
Vosilla
and
Brent
Drill
allocations of gratuities.
—
received
certain
disputed
It is undisputed that during the
relevant time period Attilio Vosilla served as Fresco’s manager,
though
defendants
exercised
true
contest
the
managerial
extent
control.
to
which
Defs.
Opp.
Mr.
at
Vosilla
9.
Mr.
Vosilla served as Fresco’s party captain for certain shifts, in
which role he received 15% of the party service charge before
June 2011 and the 3% administrative fee after June 2011, as
described above.
Vosilla Decl. ¶¶ 5-6.
participate in the standard tip pool.
Unlike
Mr.
Vosilla,
Brent
Drill
He did not otherwise
Defs. Opp. at 5 n.14.
fully
participated
in
the
standard tip pool as a matter of course, ostensibly in his role
as
a
floor
captain,
until
January
officially promoted to manager.
plaintiffs
have
adduced
evidence
5
1,
2013,
when
Defs. Opp. at 8.
that
Mr.
Drill
he
was
However,
in
fact
Defendants present contradictory evidence via the declaration of Brent
Drill, who testified that the waiters voted on the tip pool’s precise point
allocation in 2009. Drill Decl. ¶ 10.
9
exercised managerial duties well before then, including but not
limited
hiring
to
disciplining,
and
Indeed,
firing
Fresco’s
of
training,
Fresco
own
and
participating
employees.
Employee
Pls.
Reference
Mem.
Guide,
in
at
the
5-6.
updated
in
October 2007 and on which plaintiff employees presumably had
reason to rely, plainly states, “The restaurant managers are
Anthony Scotto, Jr., Attilio Vosilla & Brent Drill.”
Weiner
Decl. Ex. E at 2.
Plaintiffs also complain of the tip pool participation of
Fresco stockers and expediters, the nature of whose duties is
hotly contested.
The stocker, a position rotated among busboys,
spends the bulk of his shift wiping, polishing, and delivering
silverware, glassware and plates to stocking stations located in
the main dining and party rooms.
7.
Pls. Mem. at 9; Defs. Opp. at
Defendants dispute this characterization, arguing that in
many
cases
the
stocker
performs
extensive
including standard busboy duties.
However,
in
deposition
customer
service,
Defs. Opp. at 7, 11, 14.
testimony,
defendant
Anthony
Scotto
conceded that the stocker spends approximately half of the lunch
shift
and
approximately
three-quarters
of
the
dinner
shift
restocking tableware, and only a minority of his time delivering
food
or
otherwise
interacting
with
Weiner Decl. Ex. B, at 145-46.
customers.
Scotto
Dep.,
Plaintiffs’ declarations also
support Mr. Scotto’s account of stocker duties and dearth of
10
customer interaction.
Megason Decl. ¶¶ 8-14; Barrera Decl. ¶¶
9-15; Broderick Decl. ¶¶ 9-15; Perry Decl. ¶¶ 9-15; Rodriguez
Decl. ¶¶ 10-14; Zadoff Decl. ¶¶ 9-15.
The
expediter,
a
position
rotated
among
runners
when
sporadically needed, acts as an intermediary between the sous
chef
and
the
runners,
restaurant patrons.
who
in
turn
deliver
Pls. Mem. at 10-11.
plated
food
to
Plaintiffs contend
that the runner assigned to an expediter role performs virtually
no direct customer service and spends most if not all of the
shift in the kitchen assisting the sous chef, a description also
endorsed by defendant Anthony Scotto.
Pls. Mem. at 10; Scotto
Dep., Weiner Decl. Ex. B, at 146-47.
Some contrary testimony
suggests
that
the
expediter
is
more
properly
considered
the
“lead runner,” as his duties continue to include the delivery of
food from the kitchen to customers’ tables.
5-6.
See Defs. Opp. at
Defendants submit that, on those occasions where the sous
chef misses a shift, a runner will fill in for the sous chef in
a pure expediter role, in which case that individual does not
participate in the tip pool and instead receives a separate
paycheck from Fresco.
Defs. Opp. at 6.
Notably, in the Salinas
action brought against Fresco by runners, bussers, expediters
and stockers, plaintiffs allege that they spent “over half” of
their workdays on tip-ineligible duties, which would tend to
support plaintiffs’ account in the instant case.
11
Salinas v.
Starjem Rest. Corp., No. 13, Civ. 2992 (AT) (S.D.N.Y. May 3,
2013), Dkt. 1.
When plaintiffs worked a double shift (i.e., both the lunch
and dinner shift for the same day), the time elapsed between the
start and end of their workdays exceeded ten hours, triggering
the
requirement
hour’s
pay
at
for
the
Fresco
basic
to
state
York’s “spread of hours” law.
compensate
minimum
them
wage
an
additional
pursuant
to
New
Pls. Mem. at 11; N.Y. Comp. Codes
R. & Regs., tit. 12 §§ 137-1.7, 146-1.6.
Fresco’s Employee
Reference Guide notes that, for staff, the lunch shift begins at
10 a.m. and runs until at least 3 p.m. and the dinner shift
begins at 4 p.m. and runs until at least 11 p.m., amounting to
at
least
twelve
hours
at
work
and
between start and end of the workday.
2-3.
at
least
thirteen
hours
Weiner Decl. Ex. E. at
For these shifts, plaintiffs allege that Fresco failed to
pay the required “spread of hours” compensation, which, for at
least some portion of the relevant time period, defendant Scotto
acknowledged.
Pls. Mem. at 11; Pls. Reply Mem. at 4, Scotto
Dep., Weiner Decl. Ex. B, at 112.
DISCUSSION
III. Legal Standards
In order to qualify for certification as a class action,
plaintiffs must satisfy the four requirements of Fed. R. Civ. P.
23(a), to wit:
12
(1) the class is so numerous that joinder of
all members is impracticable, (2) there are
questions of law or fact common to the
class, (3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class, and (4) the
representative
parties
will
fairly
and
adequately protect the interests of the
class.
Because
plaintiffs
bring
this
motion
for
class
certification
under Rule 23(b)(3), they must also show that “the 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).
A
court
rigorous
may
only
analysis,”
certify
it
is
requirements have been met.
a
class
satisfied
action
that
if,
the
“after
Rule
a
23
In re Initial Pub. Offerings Sec.
Litig. (“In re IPO”), 471 F.3d 24, 33 (2d Cir. 2006) (internal
quotation marks omitted).
This rigorous analysis must include
an evaluation of the merits insofar as they pertain to the Rule
23 factors, an obligation “not lessened by overlap between a
Rule 23 requirement and a merits issue, even a merits issue that
is identical with a Rule 23 requirement.” Id. at 41.
frequently
the
analysis
“will
entail
some
overlap
In fact,
with
the
merits of the plaintiff's underlying claim,” because a “class
determination
generally
involves
13
considerations
that
are
enmeshed
in
the
factual
and
plaintiff’s cause of action.”
131
S.
Ct.
2541,
2551-52
legal
issues
comprising
the
Wal-Mart Stores, Inc. v. Dukes,
(2011)
(internal
quotation
marks
omitted).
The
plaintiff
bears
the
the
evidence
burden
each
of
Rule
satisfying
23(a)
and
by
a
preponderance
of
requirement.
Teamsters Local 445 Freight Div. Pension Fund v.
Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008).
23(b)(3)
Because
defendants focus their challenge on the commonality and adequacy
requirements of Rule 23(a) and the predominance and superiority
requirements of Rule 23(b)(3), but do not dispute Rule 23(a)
numerosity and typicality, we concentrate our analysis on the
challenged conditions.
To meet the adequacy requirement of Rule
23(a), plaintiffs must demonstrate that “class representatives
are prepared to prosecute fully the action and have no known
conflicts with any class member.”
Shahriar v. Smith & Wollensky
Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011).
To meet the
commonality requirement of Rule 23(a), plaintiffs must show “the
capacity of a classwide proceeding to generate common answers
apt to drive the resolution of the litigation.”
Wal-Mart, 131
S. Ct. at 2551 (internal quotation marks omitted).
Rule 23(b)(3) requires more.
“If anything, Rule 23(b)(3)'s
predominance criterion is even more demanding than Rule 23(a).”
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).
14
To
satisfy
Rule
23(b)(3),
plaintiffs
must
show
that
the
claims
presented can be resolved “through generalized proof, and [that]
these particular issues are more substantial than the issues
subject only to individualized proof.”
Myers v. Hertz Corp, 624
F.3d 537, 547 (2d Cir. 2010)(quoting Moore v. PaineWebber, Inc.,
306 D.3d 1247, 1252 (2d Cir. 2002)).
Supreme
Court
further
emphasized
In a recent decision, the
that
plaintiffs
proposing
certification of a Rule 23(b)(3) class must “establish[] that
damages
are
capable
of
measurement
133
S.
Ct.
at
certification
of
a
Rule
Comcast,
1433
on
a
(reversing
23(b)(3)
class
classwide
a
basis.”
lower
court’s
action
because
“[q]uestions of individual damage calculations will inevitably
overwhelm questions common to the class.”).
While, to be sure, a class certification motion may require
“prob[ing] behind the pleadings,” id. at 1432 (quoting Wal-Mart,
131 S. Ct. at 2551), “[t]he certifying court should not make any
factual findings or merits determinations that are not necessary
to the Rule 23 analysis, and any factual determinations made at
the certification stage are not binding on a subsequent factfinder, even the certifying court.”
Flores v. Anjost Corp., 284
F.R.D. 112, 122 (S.D.N.Y. 2012) (citing In re IPO, 471 F.3d at
41).
Moreover, an order of class certification is “inherently
tentative,” and “[e]ven after a certification order is entered,
the judge remains free to modify it in the light of subsequent
15
developments in the litigation.”
Falcon,
457
U.S.
omitted).
resolution
issues
The
of
that
147,
key
160
bear
(1982)
inquiry
liability
on
Gen. Tel. Co. of Southwest v.
at
but
(internal
this
rather
quotation
stage
is
“whether
[defendant’s]
not
the
ultimate
a
marks
final
constituent
liability
are
Myers, 624 F.3d at 550; see also In re
provable in common.”
U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 112, 116 (2d
Cir. 2013) (holding that the proposed class action claims were
“susceptible to generalized proof such that common issues will
predominate over individual issues,” even though “[t]he court
did not reach the merits whether the [service providers] were
shell companies created to perpetrate a fraud”).
Even in the
wake of the Supreme Court’s recent Comcast decision, the Second
Circuit
held
plaintiffs
that
present
a
class
a
action
damages
may
model
be
certified
capable
of
if
the
calculating
damages on a class-wide basis, notwithstanding the “feasibilityrelated
issue
[of]
certain
limited
the
potential
information.
In
need
for
re
U.S.
manual
input”
Foodservice
of
Inc.
Pricing Litig., 729 F.3d at 130.
IV.
Request for Class Certification
The backdrop against which this Court evaluates the instant
motion includes the prior conditional certification and courtapproved notice of FLSA claims by mutual consent and stipulation
of the parties.
There are broad commonalities between federal
16
and
state
treatment
of
labor
law
actions,
with
the
key
differences in certification being the time span (three years
for “willful” FLSA claims versus six for NYLL claims) and the
default scope of the class (opt-in for FLSA claimants and optout
for
NYLL
claimants).
The
substance
of
the
FLSA
claims
already certified overlap entirely with two of the three claims
for which plaintiffs seek class treatment here — the required
allotment
of
tips
to
allegedly
ineligible
managers
and
to
allegedly ineligible non-service employees.
The
record
presented
to
us
on
this
motion
adequately
establishes the requisite Rule 23 commonality and predominance
for these tip allotment claims.
It is undisputed that Fresco
required servers to share tips with Messrs. Drill and Vosilla.
Defendants
merely
challenge,
but
to
no
characterization of those individuals as managers.
avail,
the
The New York
Court of Appeals recently clarified that an employee becomes tip
ineligible under NYLL whenever he or she exercises “meaningful
or significant authority or control over subordinates,” which
“might include the ability to discipline subordinates, assist in
performance evaluations or participate in the process of hiring
or
terminating
employees,
as
well
creation of employee work schedules.”
Corp., 21 N.Y.3d 460, 473 (2013).
as
having
input
in
the
Barenboim v. Starbucks
The Barenboim standard – one
of “[m]eaningful authority, not final authority” (id.) – thus
17
requires even less than the analogous federal requirement under
Carter v. Dutchess Community Coll., 735 F.2d 8, 12 (2d Cir.
1984), which entails not mere input or participation, but rather
the power outright to hire, fire, supervise, determine payment,
create work schedules, and the like.
In light of this standard,
plaintiffs have presented sufficient evidence that Messrs. Drill
and Vosilla’s constituted tip-ineligible managers, including but
not limited to evidence of their involvement in hiring, firing,
disciplining and training, as well as their official designation
as managers in corporate materials distributed to plaintiffs.
Pls. Mem. at 5-7; Weiner Decl. Ex. E at 2.
Defendants’ argument
that Messrs. Drill and Vosilla were permitted to share tips for
shifts in which they provided customer service is contrary to
case law establishing that, under NYLL, the “practice of forced
sharing of tips with management is . . . an illegal practice,
regardless whether or not the members of management were engaged
in restaurant services that could be the subject of tipping.”
Chung v. New Silver Palace Rest., Inc., 246 F.Supp.2d 220, 229
(S.D.N.Y. 2002); see also Paguay v Buona Fortuna, Inc., No. 11
Civ.
6266
(LTS),
2013
WL
3941088,
at
*3
(S.D.N.Y.
July
31,
2013).
Plaintiffs’ claim regarding tip-sharing with expediters and
stockers
similarly
certification.
meets
the
requirements
for
Rule
23
Defendants raised legitimate questions regarding
18
whether expediters and stockers always
perform tip-ineligible
duties, or whether the nature of their duties differ from shiftto-shift, which would render the inquiry incapable of class-wide
determination.
balance
Defs. Opp. at 11-15.
weighs
including
in
the
favor
sworn
of
Ultimately, however, the
plaintiffs,
admission
of
whose
defendant
evidence
Scotto
–
that
expediters and stockers spend the majority of their daily shifts
on
tip-ineligible
tasks
–
this
Court
finds
more
compelling.
Scotto Dep., Weiner Decl. Ex. B, at 145-46.
Plaintiffs’ third claim on this motion for non-payment of
“spread of hours” compensation is an alleged violation of state
law
and
thus
Defendants
NYLL’s
not
not
do
spread
part
challenge
of
plaintiffs
are
corporate
hours
policy
compensation,
of
the
this
FLSA
applicability
claim
regarding
that
previous
provision.
correct,
in
the
Tr.
is
payment
determination
at
certification.
to
of
Thus,
if
4.
dependent
of
Fresco
on
Fresco’s
spread
thereof
of
hours
will
resolve
the
question of defendants’ liability as against all plaintiffs owed
spread
of
hours
compensation.
In
deposition
testimony,
defendant Scotto apparently admitted that Fresco did not, for
some period of time, pay spread of hours compensation.
Pls.
Mem. at 11; Pls. Reply Mem. at 4, Scotto Dep., Weiner Decl. Ex.
B,
at
112.
opposition
Defendants
papers,
but
did
not
instead
19
refute
argued
this
contention
plaintiffs’
failure
in
to
present adequate evidence in support of this claim.
at 22-24.
seemed
Defs. Opp.
Subsequently at oral argument, however, defendants
to
concede
the
nonpayment
of
spread
of
hours
compensation, with respect to a certain time frame preceding
some as-yet undisclosed policy change that occurred during the
class period.
Tr. at 10-11.
The policy-driven nature of this
claim is therefore also amenable to class-based determination
pursuant to the requirements of Rule 23.
Accordingly, on all three claims, we find that plaintiffs
have
carried
their
predominance.
burden
to
prove
Rule
23
commonality
and
The Supreme Court’s decision in Comcast presents
no barrier to this holding, for, once liability is determined,
any
resulting
determination,
damages
would
notwithstanding
be
the
amenable
to
class-wide
“feasibility-related
issue
[of] the potential need for manual input” of certain limited
information.
In re U.S. Foodservice Inc. Pricing Litig., 729
F.3d at 130.
The only remaining dispute regards opt-in plaintiff’s Marco
Barrera’s adequacy as a Rule 23(a)(4) class representative.
As
defendants have raised reasonable concerns regarding potential
conflicts between Mr. Barrera and others in the proposed class,
we do not certify him as class representative.
at 18-19.
See Defs. Opp.
Defendants do not challenge the adequacy of any of
the three potential alternative representatives identified by
20
plaintiffs,
and
this
Rodriguez,
and
Ms.
representatives.
Court
finds
Zadoff
that
Mr.
constitute
Megason,
adequate
Tr. at 39; Pls. Reply Mem. at 10.
Mr.
class
Defendants
also do not contest the form of the proposed notice or the
service
of
plaintiffs’
counsel
Joseph
&
Kirschenbaum
class counsel, both of which this Court endorses.
LLP
as
Tr. at 38-39.
Plaintiffs also seek from defendants a computer-readable list of
names, mailing addresses, telephone numbers, email addresses,
social security numbers, dates of employment and job titles for
prospective class members from February 2006 to the present.
Pls.
Mem.
at
plaintiffs
22-23.
seek
This
names,
request
contact
is
granted
information
and
insofar
as
dates
of
employment and denied insofar as plaintiffs seek social security
numbers and job titles for class members.
We are mindful of the contradictions raised in the Salinas
case, brought by Fresco expediters and stockers.
The Salinas
plaintiffs present allegations regarding their work duties and
hours that differ from the evidence advanced thus far in the
case sub judice and also, curiously, from the evidence the very
same class of employees presented in the Gillian case before
Judge Rakoff.
inconsistent
We candidly recognize that these accounts are
and
that
future
discovery
will
determine
the
operative facts.
In that context, this Court remains aware of
its
and
authority
–
indeed
its
21
duty
–
to
reconsider
this
certific$.t
as
the
record
reservation, we hereby certi
further
devel
Wi
that
the class pursuant to Rule 23.
CONCLUSION
For
foregoing
insofar as
s
Rule
ints
23,
reasons,
plaintiffs'
motion
Court certifies the propos
aintiffs'
authorizes the mailing
counsel
as
is
granted
class pursuant to
class
counsel,
and
the proposed notice to class members.
The Court also orders defendants to produce to plaintiffs a list
of
empl
names,
employment,
social
but
security
contact
information
denies plaintiffs'
numbers.
s
request
for
Memorandum
and
dates
of
job titles
and
Docket No. 51.
Dated:
New York, New York
January /() , 2014
~
N OMI RE CE BUCHWALD
UNITED STATES DISTRICT JUDGE
22
s
Copies
mailed on
s
foregoing Memorandum
to the foIl
Attorneys for Plaintiffs
D. Maimon Kirs
, Esq.
Matthew Kadushin, Esq.
Charles E. Jo
rv:ichael D. Pa
Douglas Weiner,
Joseph &
LLP
233 Broadway, 5
Floor
New York, NY 10279
Attorneys for Defendants
Craig R. Benson, Esq.
Pauta, E
Naveen Kabir, Esq.
ttler Mendelson, P.C.
900 Third Avenue, 8th Floor
New York, NY 10022
23
and
have
been
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