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