Michael v. Bloomberg, L.P.

Filing 307

OPINION AND ORDER......The plaintiffs August 19, 2016 motion for certification of a NYLL class for Analytics Representatives is granted. (Signed by Judge Denise L. Cote on 9/21/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
ERIC MICHAEL ROSEMAN, ALEXANDER LEE,
:
and WILLIAM VAN VLEET, individually and:
on behalf of others similarly situated,:
:
Plaintiffs,
:
:
-v:
:
BLOOMBERG L.P.,
:
:
Defendant.
:
:
-------------------------------------- X

14cv2657 (DLC)
OPINION AND ORDER

APPEARANCES:
For the Plaintiffs:
Dan Getman
Lesley Tse
Artemio Guerra
Getman Sweeney, PLLC
9 Paradies Lane
New Paltz, NY 12561
For the Defendant:
Matthew W. Lampe
Terri L. Chase
Jones Day
250 Vesey Street
New York, NY 10281
DENISE COTE, District Judge:
Plaintiffs bring this collective and putative class action
against Bloomberg L.P. (“Bloomberg”), asserting that it failed
to compensate Analytics Representatives for overtime work as
required by federal and state laws.

They have moved to certify

a class pursuant to Fed. R. Civ. P. 23 in connection with the

claim brought by Bloomberg’s New York-based Analytics
Representatives for a violation of New York Labor Law § 650 et
seq. (“NYLL”).1

For the reasons that follow, the motion is

granted.
BACKGROUND
I.

Factual Background
Bloomberg assists its clients in the operation of the

Bloomberg Terminal, a computer software system which allows
clients to access and analyze financial data.

Many Bloomberg

clients also buy Bloomberg’s hardware package, which includes a
monitor and keyboard.
different functions.

The Bloomberg Terminal has over 30,000
When clients need help navigating the

Terminal’s functions, they open a chat window that links them
directly to an Analytics Representative.

Based on the initial

text or question the Bloomberg client enters into the chat, an
algorithm assigns the chat to an Analytics Representative with
the relevant expertise.

Questions can also be referred to

Analytics Representatives by account representatives in the
Sales department.

There are representatives located in ten

The plaintiffs also bring a motion to certify a class action to
pursue claims of Bloomberg California-based Analytics
Representatives which are brought under California’s labor law.
That motion is addressed in a separate order. All plaintiffs
also bring a collective action under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq.
1

2

cities across the globe who are available to chat at all times
of the day or night.

Bloomberg estimates that, in New York

alone, nearly 1,300 individuals have worked as Analytics
Representatives since April 2008.
Questions from clients take a myriad of forms: some require
very specific technical assistance, others seek to learn a new
function on the Terminal, and others are generalized queries
about how to use the Terminal to meet their business needs.
While many client questions are relatively straightforward and
lend themselves to a clear answer from a Representative who has
mastered the Terminal, others are more complex and can lead to
varying responses from different Representatives.
Representatives differ in their approach to the latter type of
question: for example, while one plaintiff tries to identify the
“best” solution among many and present one answer to a client,
another prefers to guide a client through multiple approaches to
addressing the presented concern.
Analytics Representatives are internally rated based on the
quality of their answers to client queries.

Department

supervisors review the transcripts of the chats between the
Representatives and clients, assigning a “Quality Control”
rating based on the correctness of the guidance provided.
Although not every chat goes through the quality control

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process, every Representative will have a certain portion of his
or her chats rated.

The supervisors that are in charge of

Quality Control still work directly with clients, often multitasking so that they are rating their colleagues’ chats while
chatting with clients at the same time.
There is limited opportunity for advancement within the
Analytics department.

After initial training, Analytics

Representatives answer general client questions about the
Bloomberg Terminal.

After approximately half a year as

“Generalists,” Representatives begin to focus on a special area
of expertise within the Terminal.

The Representatives undergo

training and certifications in their respective specialty areas,
and eventually earn the title of “Specialist.”

After an

additional seven months to one year in that role, some
Specialists will transition to the “Advanced Specialist” role,
which requires an even higher level of expertise in their chosen
field.

Others will move to the Sales department.

While the

specific tasks within the Analytics department may be varied,
all Representatives ultimately address client concerns and
attempt to solve them.

When a Generalist cannot answer a client

question directly, the Generalist will transfer the chat to a
Specialist or Advanced Specialist with the relevant expertise.

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Most Analytics Representatives eventually move to the Sales
department.

A small number of Representatives, however, stay in

the Analytics department and take on supervisory roles.
Although every Analytics Representative responds to client
inquiries, they may also have other responsibilities depending
on interests, area of expertise, and position within the
Analytics department.

Specialists and Advanced Specialists may

spend time away from direct client contact by engaging in other
activities such as training Generalists, writing blog posts
regarding the Bloomberg Terminal’s functionality, or preparing
training materials.

All Representatives, however, spend a

significant amount of time working with customers.
In its recruitment materials, Bloomberg does not
differentiate among any roles within the Analytics department;
instead, the department is described holistically, with
reference to one comprehensive role:
The journey starts in the Analytics department, where you
will interact directly with clients via our online help
desk, providing rapid solutions and solving complex queries
regarding the financial data and analytics of the Terminal.
In this role, you will work across asset classes, gaining
exposure to a diverse range of clients from hedge funds to
large companies.

Bloomberg’s description of the Analytics department is a
sweeping one, referencing one training course: “After

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successfully completing the training program, you will join the
Analytics desk, where you will gain the foundational product
knowledge to advance your career.”

The only career movement or

differentiation noted in the recruitment literature is the
opportunity to move to a different department altogether:
“Typically, after 12-18 months in Analytics, you will have the
opportunity to move to the Sales department.”
II.

Procedural History

Eric Michael Roseman filed a class and collective action
(Dkt. No. 2)

complaint on April 4, 2014.2

Following motion

practice, a third and final amended complaint was filed on March
23, 2016.

It alleges violations of the Fair Labor Standards Act

(“FLSA”), NYLL, and the California Labor Code.
On August 19, 2016, plaintiffs filed the instant motion
seeking certification of the following NYLL class: “all
representatives in the Analytics department in New York who were
not paid time and one-half for hours over 40 worked in one or
more weeks at any time within the six years preceding the filing
of this Complaint and the date of final judgment in this
matter.”

Alexander Lee is the single named plaintiff for this

Mr. Roseman was originally listed under a pseudonym, “Eric
Michael.” On April 5, 2015, the judge to whom this case was
assigned required the plaintiff to include his full name.

2

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proposed class.3

The motion became fully submitted on November

21.
The case was reassigned to this Court on August 15, 2017.
The plaintiffs have also filed a motion for partial summary
judgment, which the parties agree should be decided after the
motion for certification is resolved.
DISCUSSION
Class certification is governed by Fed. R. Civ. P. 23.
Rule 23(a) requires that a proposed class action (1) be
sufficiently numerous, (2) involve questions of law or fact
common to the class, (3) involve class plaintiffs whose claims
are typical of those of the class, and (4) involve a class
representative or representatives who adequately represent the
interests of the class.

Additionally, Rule 23(b)(3) “requires

the party seeking certification to show that questions of law or
fact common to class members predominate over any questions
affecting only individual members and that class treatment would
be superior to individual litigation.”

Myers v. Hertz Corp.,

624 F.3d 537, 547 (2d Cir. 2010) (citation omitted).

While Mr. Roseman remains listed in the complaint’s caption,
plaintiffs’ brief notes that “Named Plaintiff Roseman does not
seek to be a Class Representative for the New York Class.”

3

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In deciding whether a class should be certified, the court
determines whether the requirements of Rule 23 are met, not who
will prevail on the merits.
417 U.S. 156, 178 (1974).

See Eisen v. Carlisle & Jacquelin,
“The party seeking class

certification bears the burden of establishing by a
preponderance of the evidence that each of Rule 23's
requirements has been met.”

Amara v. CIGNA Corp., 775 F.3d 510,

519 (2d Cir. 2016) (citation omitted).

Often, the “rigorous

analysis” necessitated by Rule 23 “will entail some overlap with
the merits of the plaintiff's underlying claim.”

Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011).

Factual

determinations made for the purposes of Rule 23, however, are
“made only for purposes of class certification and [are] not
binding on the trier of facts, even if that trier is the class
certification judge.”

In re Initial Public offerings Sec.

Litig., 471 F.3d 24, 41 (2d Cir. 2006).
Rule 23 “contains an implicit threshold requirement that
members of a proposed class be readily identifiable.”

In re

Petrobas Securities, 862 F.3d 250, 264 (2d Cir. 2017) (citation
omitted).

This “ascertainability” requirement necessitates

“that a class be defined using objective criteria that establish
a membership with definite boundaries.”

Id.

Plaintiffs clearly

meet this requirement and the defendant does not contest this
point.

The proposed class, Analytics Representatives in New
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York, is sufficiently definite so that the Court can easily
determine whether a specific individual is a member.
The defendants principally dispute that the requirements of
Rule 23(b) will be met here.

In particular, they argue that the

plaintiffs have not carried their burden to show that common
issues will predominate over the individualized inquiries that
must be undertaken to show that the NYLL’s overtime requirement
applies to a specific Analytics Representative.

The issues that

arise under Rule 23(b) will be addressed after the Rule 23(a)
inquiry is undertaken.
I.

Rule 23(a)
a. Numerosity
Courts presume numerosity such that joinder is

impracticable where the class exceeds 40 members.

Pennsylvania

Public School Employee’s Retirement System v. Morgan Stanley &
Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014).
that this element is easily met.

The parties agree

It is uncontested that more

than 1,000 current and former Bloomberg employees are putative
class members.
b. Commonality
Plaintiffs’ claims “must depend upon a common contention.”
Dukes, 564 U.S. at 350.

That “common contention, moreover, must

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be 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.”

Id.

The relevant inquiry is whether

a classwide proceeding is capable of “generat[ing] common
answers apt to drive the resolution of the litigation.”
(citation omitted).

Id.

Rule 23(a)'s commonality requirement may be

satisfied if plaintiffs “demonstrate that the class members have
suffered the same injury.”

Johnson v. Nextel Communications,

Inc., 780 F.3d 128, 137 (2d Cir. 2015) (citation omitted).
“Even a single common question will do.”
359.

Dukes, 564 U.S. at

And while the parties seeking certification must show that

a common contention is capable of classwide resolution, “[t]he
claims for relief need not be identical for them to be common;
rather, Rule 23(a)(2) simply requires that there be issues whose
resolution will affect all or a significant number of the
putative class members.”

Johnson, 780 F.3d at 137.

Plaintiffs have identified numerous common questions of law
and fact.

Common questions of fact include whether the

plaintiffs worked over forty hours a week, whether Bloomberg
knew that they did, and whether Bloomberg failed to give the
plaintiffs overtime pay.

Common questions of law include

whether Bloomberg’s conduct with respect to the class is a

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violation of the NYLL, or whether an exemption under the NYLL
applies to Bloomberg’s Analytics Representatives.
Bloomberg acknowledges that there are many common questions
of fact and law that apply to the class, but argues that the
plaintiffs must show that the central issue in the case is
susceptible to classwide resolution.

Bloomberg contends that

the central issue -- which it identifies as the availability of
an exemption to NYLL’s overtime rules for administrative
employees -- is not susceptible to classwide resolution because
of the significant variation in the class members’ experiences
and duties.

Even if it were not sufficient for the plaintiffs

to demonstrate, as they have here, that there are a host of
common questions that must be answered as to each class member,
they have shown as well that the issue of whether the
administrative exemption applies to Analytics Representatives is
both an issue that must be answered for each class member and
that it is an issue capable of classwide resolution.

The

resolution of this critical issue “will affect all or a
significant number of the class members.”
137.

Johnson, 780 F.3d at

This determination is discussed in greater detail below in

the discussion of the predominance requirement.

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c. Typicality
The claim presented by a named plaintiff must be typical of
the experience of class members.

“Rule 23(a)(3)'s typicality

requirement is satisfied when each class member's claim arises
from the same course of events and each class member makes
similar legal arguments to prove the defendant's liability.”
Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1992).

The

factual background of each named plaintiff’s claim, however,
need not be identical to that of all of the class members.
"When it is alleged that the same unlawful conduct was directed
at or affected both the named plaintiff and the class sought to
be represented, the typicality requirement is usually met
irrespective of minor variations in the fact patterns underlying
individual claims."

Id. at 936-37.

The commonality and

typicality requirements of Rule 23(a) tend to “merge” into one
another, as 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."

Dukes, 564

U.S. at 349 n.5.
The named plaintiff’s claims are typical of the class
members’ claims.

All class members have the same title and

essential job function, have identical initial job training,

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have been evaluated using the same performance metrics, have
been paid on the same basis, and have been subject to the same
overtime policy.
Bloomberg argues that the claims of the named plaintiff for
the New York class are not typical of those of the class because
he testified that he had a monotonous day-to-day experience on
the job.

Other Analytics Representatives testified to having

more complex duties and exercising their discretion while
working.

This one employee’s reaction to his work does not

render his claims atypical.

His boredom is not inconsistent

with the allegation that he worked overtime and was denied
overtime pay, nor does it speak to his actual duties on the job.
d. Adequacy
Under Rule 23(a)(4), the inquiry regarding “adequacy is
twofold: the proposed class representative must have an interest
in vigorously pursuing the claims of the class, and must have no
interests antagonistic to the interests of other class members.”
In re Payment Card Interchange Fee and Merchant Discount
Antitrust Litigation, 827 F.3d 223, 231 (2d Cir. 2016) (citation
omitted).

“To assure vigorous prosecution, courts consider

whether the class representative has adequate incentive to
pursue the class's claim, and whether some difference between
the class representative and some class members might undermine
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that incentive.”

Id.

Rule 23(a)(4) also “serves to uncover . .

. competency and conflicts of class counsel.”

Id.

“Class

counsel is supposed to represent the class, not the named
parties.”

Charron v. Wiener, 731 F.3d 241, 254 (2d Cir. 2013)

(citation omitted).

Indeed, “the role of class counsel is

generally greater than that of the class representatives in
protecting the interests of absent class members, and . . .
class counsel have a duty to protect the interests of the
majority of the class even if the named plaintiffs hold a
different view.”

Maywalt v. Parker & Parsley Petroleum Co., 67

F.3d 1072, 1076 (2d Cir. 1995).
Both criteria are satisfied.

Bloomberg does not contest

the adequacy of plaintiffs’ counsel.

The attorneys are

qualified, experienced, and able to conduct complex litigation.
Further, the named plaintiff does not have any interests
antagonistic to his fellow class members’ interests.
Bloomberg challenges the ability of the named plaintiff to
adequately represent the class because, as just described, he
found his job boring.

But that employee’s critique of his job -

- as one that “a monkey can do” -- does not undermine his
interest in vigorously pursuing the claims of the class.

While

other class members testified that the job is more complicated
than Lee described, that difference does not alter Lee’s

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underlying claim that the class is entitled to overtime pay and
does not impede his ability to represent the class.

The named

plaintiff’s interests are directly aligned with those of the
absent class members: they have all experienced the same
identified injury as a result of the uniform application of the
same pay policy of the defendant.
II.

Rule 23(b)

a. Predominance
As noted, the defendant principally resists certification
through its argument that the plaintiffs have failed to carry
their burden under Rule 23(b)’s predominance requirement.

The

Rule 23(b)(3) “predominance” requirement “tests whether proposed
classes are sufficiently cohesive to warrant adjudication by
representation.”

Anchem Products, Inc. v. Windsor, 521 U.S.

591, 623 (1997).

The purpose of the requirement is to “ensure

that the class will be certified only when it would achieve
economies of time, effort, and expense, and promote uniformity
of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other
undesirable results.”
omitted).

Myers, 624 F.3d at 547 (citation

This “predominance” requirement is satisfied if: “(1)

resolution of any material legal or factual questions can be
achieved through generalized proof, and (2) these common issues

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are more substantial than the issues subject only to
individualized proof.”

In re Petrobas Securities, 862 F.3d at

270 (citation omitted).
Rule 23(b)(3)'s predominance requirement is “more demanding
than Rule 23(a).”

Johnson, 780 F.3d at 138 (citation omitted).

While a court assessing the Rule 23(a) commonality and 23(b)
predominance requirements will consider similar elements -- the
components of the claims and defenses to be litigated, and
whether generalized evidence can be offered to prove those
elements on a classwide basis or whether individualized proof
will be needed to establish each class member's entitlement to
relief -- predominance requires a further inquiry than Rule
23(a), “into whether the common issues can profitably be tried
on a classwide basis, or whether they will be overwhelmed by
individual issues.”

Id.

At the certification stage, plaintiffs

must “show that more substantial aspects of this litigation will
be susceptible to generalized proof for all class members than
any individualized issues.”
omitted).

Myers, 624 F.3d at 551 (citation

Accordingly, “courts must consider potential defenses

in assessing the predominance requirement.”

Id.

The core question that must be resolved for the New York
class in this case is whether Analytics Representatives were
entitled to overtime pay under state law.

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It is undisputed that

they were entitled to that pay unless an exemption applies.
Bloomberg will rely at trial on an exemption under the NYLL.
The NYLL exemptions mirror the criteria set forth in the
FLSA and its exemptions.

See 12 NYCRR § 142-3.2 (“[A]n employer

shall pay employees subject to the exemptions of section 13 of
the Fair Labor Standards Act”); Ramos v. Baldor Specialty Foods
Inc., 687 F.3d 554, 556 n.1 (2d Cir. 2012) (“[T]he NYLL . . .
applies the same exemptions as the FLSA.”); Reiseck v. Universal
Communications of Miami, Inc., 591 F.3d 101, 105 (2d Cir. 2010)
(“The NYLL . . . mandates overtime pay and applies the same
exemptions as the FLSA.”) (citing NYCRR § 142-3.2).
The exemption upon which Bloomberg relies here applies to
employees “employed in a bona fide . . . administrative . . .
capacity.”

29 U.S.C. § 213(a)(1).

According to the regulations

defining this “administrative exemption,” it applies to
any employee: (1) Compensated on a salary or fee basis
at a rate of not less than $455 per week . . . ;
(2) Whose primary duty is the performance of office or
non-manual work directly related to the management or
general business operations of the employer or the
employer’s customers; and (3) Whose primary duty
includes the exercise of discretion and independent
judgment with respect to matters of significance.

29 C.F.R. § 541.200(a) (emphasis supplied).
At trial, Bloomberg will bear the burden of showing that
all three elements for this exemption are satisfied.
17

Ramos, 687

F.3d at 558.

It is undisputed that Bloomberg will be able to

show that Analytics Representatives were compensated at a rate
of over $455 per week.
The application of this exemption, therefore, hinges on the
second and third elements, which share a common term.

Each

element requires a determination of an employee’s primary duty.
For the administrative exemption to apply, that primary duty
must directly relate to “management or general business
operations,” and include the “exercise of discretion and
independent judgment with respect to matters of significance.”
29 C.F.R. § 541.200(a).
To determine an employee’s primary duty, a court must
analyze “all the facts in a particular case,” looking to the
“principal, main, major or most important duty that the employee
performs.”

29 C.F.R. § 541.700(a).

An employee's primary duty

depends upon factors like “the relative importance of the exempt
duties as compared with other types of duties; the amount of
time spent performing exempt work; the employee's relative
freedom from direct supervision; and the relationship between
the employee's salary and the wages paid to other employees for
the kind of non-exempt work performed by the employee.”
C.F.R. § 541.700(a).

29

An employee who spends “more than 50

percent” of their time on exempt work “will generally satisfy

18

the primary duty requirement.”

Id. at § 541.700(b).

See Gold

v. New York Life Ins. Co., 730 F.3d 137, 145 (2d Cir. 2013).
Whether the administrative exemption applies “is a mixed
question of law and fact” that relies on “the employees' actual
job characteristics and duties” and necessitates consideration
of “all the facts in a particular case.”

Myers, 624 F.3d at 548

(citation omitted).
The plaintiffs have shown that the issues pertinent to
Bloomberg’s affirmative defense can be resolved through common
proof at trial, and that those issues will far outweigh any
individualized determinations that must be made, such as the
calculation of the precise number of overtime hours each
employee worked.

The plaintiffs have shown that evidence

applicable to all, or virtually all, class members will be used
to define their primary duty and to determine whether that
primary duty shares the other characteristics necessary for
Bloomberg to demonstrate that the administrative exemption
applies, such as the exercise of discretion and independent
judgment.

The plaintiffs have done so by pointing to evidence

that Analytics Representatives share the same primary duty:
offering technical support regarding the Bloomberg Terminal to
Bloomberg’s customers.4

That evidence comes from pertinent

Those members of the Analytics department whose primary duty
may be the supervision of the department’s employees and the
4

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documents in Bloomberg’s files relating to the work of Analytics
Representatives, Bloomberg’s system for managing and insuring
the quality of those employees’ work, testimony from such
employees, and the common sense inferences that flow from the
undisputed facts regarding the operations and size of the
department in which these employees work.
The defendant argues that there is no primary duty common
to the proposed class.5

According to the defendant, the

responsibilities of the class members are so varied that the
class members do not share a primary duty and that no
generalized proof can be used to identify a single primary duty
for the class.

Accordingly, the defendant argues, individual

issues will predominate at trial and a class should not be
certified.

Bloomberg emphasizes that Analytics Representatives

use different techniques in responding to client inquiries, have

management of the department’s overall operations appear to have
a separate title: Team Leaders. Team Leaders, in turn, are
supervised by regional Managers. The plaintiffs define a class
composed only of Representatives and do not seek to include Team
Leaders or Managers in their class action.
Although at any trial of an overtime claim brought by an
Analytics Representative, Bloomberg will have to prove the
existence of a qualifying primary duty for that plaintiff if it
wishes to argue that the administrative exemption applies,
Bloomberg has declined in opposition to this motion to describe
any primary duty that may exist for any of its Analytics
Representatives, or to admit that the primary duty for any
Analytics Representative is responding to client inquiries
regarding the Bloomberg Terminal.
5

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different levels of expertise regarding the functionality of the
Terminal and client businesses, and that those techniques and
levels of expertise shift over the months that an Analytics
Representative spends in the department, as does the degree to
which an individual is supervised.

Bloomberg emphasizes as well

that some Analytics Representatives perform other tasks, such as
helping to train Generalists and Specialists or to make sales.
While the defendant points out variances in the proposed
class members’ responsibilities and impressions of their jobs,
individual issues nevertheless do not predominate.

The evidence

presented by both plaintiffs and the defendant converge on one,
basic point:

Analytics Representatives answer client questions

about the Bloomberg Terminal.

This is their primary duty.

All

the testimony offered in this case ultimately points to that
role, despite the varying amounts of time, discretion, and
responsibility described by class members as they perform that
primary duty.

Plaintiffs can satisfy the predominance

requirement by “demonstrating that the job duties of putative
class members [are] largely consistent across the class and that
individual differences in job tasks would not be of the
magnitude to cause individual issues to predominate.”
624 F.3d at 549 (citation omitted).

Myers,

The evidence of differences

among the daily routines of the proposed class members or the
differences in their auxiliary duties do not overcome the
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plaintiffs’ evidence that the primary duty of the class members
can be determined through generalized proof because that primary
duty is consistent across the class.6
Finally, Bloomberg contends that individual issues will
outweigh generalized proof in this case because classwide
damages are not susceptible to generalized proof.

Bloomberg

asserts that the trier of fact will have to inquire into the
daily routine of each employee to sort out how much time they
spent working.

This argument is unconvincing for two reasons.

First, the plaintiffs argue that Bloomberg’s electronic data
will reveal most, if not all, of the overtime liability.

This

data -- through electronic time stamps -- will show when
Analytics Representatives were logged on to their computers,
either on site or remotely.

It will also indicate if

Representatives worked outside of regular shift hours.

Second,

even if the plaintiffs must supplement this data with some
individual testimony, that will not defeat the plaintiffs’

Indeed, it will not be altogether surprising if Bloomberg
shifts gears at trial and asserts that the primary duty of
Analytics Representatives is to respond to client inquiries
regarding the Bloomberg Terminal, and that the nature of that
primary duty meets all the requirements for the administrative
exemption to overtime pay obligations. As noted, even though
Bloomberg has explained that it intends to rely on the
administrative exemption under the FLSA to avoid the statutory
obligation to pay for overtime work, it has declined to identify
in opposition to this motion the primary duty of any Analytics
Representative.
6

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showing of predominance.

“[C]ommon issues may predominate when

liability can be determined on a class-wide basis, even when
there are some individualized damage issues.”

Sykes v. Mel S.

Harris and Associates LLC, 780 F.3d 70, 81 (2d Cir. 2015)
(citation omitted).

Here, the plaintiffs have shown that they

can prove through common evidence that all members of the
proposed class were injured by the same action.

Plaintiffs do

not need to prove that common evidence will offer “the precise
amount of damages incurred by each class member.”

Id. at 82

(citation omitted).
b. Superiority
Rule 23(b)(3) further requires that a class action must be
the most fair and efficient method of resolving the claims at
issue.

Courts must consider four nonexclusive factors when

applying this “superiority” requirement:
(a) the class members' interests in individually
controlling the prosecution or defense of separate
actions; (b) the extent and nature of any litigation
concerning the controversy already begun by or against
class members’ (c) the desirability or undesirability
of concentrating the litigation of the claims in the
particular forum; and (d) the likely difficulties in
managing a class action.
Fed. R. Civ. P. 23(b).

“[M]anageability is a component of the

superiority analysis.”

In re Petrobas, 862 F.3d at 268.

Here, a class action is a superior method to individually
litigating the NYLL claims.

Given that common issues
23

predominate over individual ones, a class action preserves
judicial resources and is far less burdensome for the parties.

CONCLUSION
The plaintiffs’ August 19, 2016 motion for certification of
a NYLL class for Analytics Representatives is granted.
Dated:

New York, New York
September 21, 2017

__________________________________
DENISE COTE
United States District Judge

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