Agropong et al v. Memon et al

Filing 332

OPINION AND ORDER: For the foregoing reasons, Plaintiffs' motions for class certification is granted, with a class and subclass certified as defined above. Keletso Tebogo, Olugbenga Opesanwo, David Richardson, Ronald Agyemang, Angel Cartagena, and Maria Sumano are appointed class representatives for the class and subclass. Marlborough Law Firm, P.C. and Slater Slater Schulman LLP are appointed co-class counsel Plaintiffs are directed to for both the class and subclass. Plaintiffs are dire cted to issue the Notice, and Defendants are directed to provide to Plaintiffs the proposed class member information and post the finalized Notice, as detailed above, and as further set forth in this order. Motions terminated: 300 FIRST MOTI ON to Certify Class And Send Notice to Class Members, filed by Hector Rosado, Michael Britton, recinos, Maria Sara Sumano, Pelma, Christine Nunez, Sergio Recinos, Santiago Pelma, Leon Lee, Israel Uduaghan, uduaghan, mamadou dia llo, Mamadou Diallo, Nazrol Koysor, Yolanda Nieves, Cusilla Singh, Emmanuel Agropong, Noha Bayo, Elietzer Pierre-Louis, Yolanda Nieve, Keletso Tebogo, Santos Suazo, Miguel Rosendo, Jocelyn Mandungu, David Richardson, Moussa Camara, Abdu l Rahim, James Saylor, Joseph Kofie, Marcos Basabe, Brahima Diallo, Carlos Laguna, Ronald Agyemang, Andy Osei, Surita Suedass, Salawu Khairat, Abdourahmane Diop Sow, Rosendo, Pedro Ulloa, Abel Pantoja, Joseph Kofei, Wilda Rodriguez, Daniel Rodriguez, Aneessa Aziz, Josue Pierre-Louis, Adrian Batana, Roberto Rodriguez. (Signed by Judge Robert W. Sweet on 10/10/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
14 Civ. 7990
IN RE DORIA/MEMON DISC. STORES WAGE &
HOUR LITIG.

OPINION AND ORDER

-----------------------------------------x
A P P E A R A N C E S:
Attorneys for Plaintiffs
SLATER SLATER SCHULMAN LLP
445 Broad Hollow Road
Melville, NY 11747
By: Adam Paul Slater, Esq.
Jonathan E. Schulman, Esq.
Anthony R. Portesy, Esq.

DOCUMENT
ELECTRONICALLY FILED
DOC # :~~~~~~­

DATE FILED: l 0::\\>-:-17

THE MARLBOROUGH LAW FIRM, P.C.
555 Fifth Avenue, 14th Floor
New York, NY 10017
By:
Christopher Marlborough, Esq.
Attorneys for Defendants
LAW OFFICES OF MICHAEL K. CHONG, LLC
300 Hudson Street, Suite 10
Hoboken, NJ 07030
By: Michael K. Chong, Esq.

Sweet, D.J.

Plaintiffs, a conditiona ll y certified class of current and
former employees 1 at a chain of discount stores operated by
Defendants the Estate of Mohamed Doria (the "Estate" ) , Michael
Memon ("Memon " ) , Gulan Doria ("Doria") , and their discount
respective stores 2 (the "Discount Stores," and, collectively, the
"Defendants " 3) have moved pursuant to Federal Ru le of Civil
Procedure 23(b) (3) to: class certify a proposed class of nonexempt emp l oyees who worked at one or more of Defendants'
Discount Stores as further defined below; certify a subclass of
class members employed by Defendants on or after April 9, 2011
(the "WTPA Subclass"); order notice of class certification to
prospective class members in English, Spanish, and French;

Additional information about the conditi onally certified
class can be found in earlier op ini ons of the Court . See
Agropong v . Memon, No. 14 Civ. 7990 (RWS), 2015 WL 56 10 879, at
*l (S .D.N.Y. Sept. 23 , 2015).
1

2

The Discount Stores are listed in detail in the Amended
Complaint ':II 49 .
3

While the term Defendants is used consistently for the sake
of simplicity, Plaintiffs make allegations as to the Estate only
for the time period preceding Mohamed Doria's death on August
14, 20 14. (See Pls.' Mem. of Law in Supp. ("Pls. Mem.") at 2
n.2 , Dkt. No. 301 . )
1

'

,

appoint class representatives 4 ; appoint co-lead class counsel 5 ;
and direct Defendants to provide employment and contact
information for specified proposed class members.

Based on the facts and conc lu sions set forth below,
Plaintiffs' motion is granted.

Prior Proceedings

This action was initiated by Plaintiffs on October 4, 2014
(the "Complaint"," Dkt. No. 1). Plaintiffs' Comp laint alleges
that Defendants violated the Fair Labor Standards Act

("FLSA")

and New York Labor Law ("NYLL " ) by not paying their workers
minimum wage, overtime compensation, and spread of hours premium
pay, in addition to failing to comply with wage statement and
pay rate notification requirements.

(See general ly Complaint . )

On May 12, 2015 , Plaintiffs moved for a temporary
restraining order , which on June 2, 2015 , was converted into a
preliminary injunction , to enjoin Defendants from terminating,
4

Proposed class representatives are: Keletso Tebogo,
Olugbenga Opesanwo , David Richardson, Ronald Agyemang , Angel
Cartagena , and Maria Sumano.
5

Proposed co -le ad class counsel are the Marlborough Law
Firm, P.C. and Slater Slater Schulman LLP.
2

suspending, or otherwise discriminating against their employees
for participating in this action,
the above,

from threatening to do any of

from attempting to have any employee deported, and

from attempting to have any employee sign documents compromising
their rights in this lawsuit.

(See Dkt. Nos.

~6 ,

28,

41,

61 . ) On

May 14 and July 26 , 2017 , Plaintiffs filed motions of contempt
as to the injunction, a hearing for which was held by this Court
on September 30 , 2015; on January 21 , 2016 , this Court found
Defendants in contempt of the injunction. See In re Doria/Memon
Disc. Stores Wage & Hour Litig., No. 14 Civ. 7990
270080

(RWS), 2016 WL

(S.D .N. Y. Jan . 21, 2016) . Defendants were also ordered to

keep accurate records of employee work hours going forward.

Id.,

2016 WL 270080 , at *7. On July 22, 20 1 6 , Plaintiffs were awarded
reasonable attorneys' fees for the contempt motions. See In re
Doria/Memon Disc. Stores Wage & Hour Litig., No. 14 Civ . 7990
(RWS) , 2016 WL 3963170

(S . D.N. Y. July 22, 2016) .

With the contempt motions as a backdrop,

Plaintiffs moved

for conditional certification of their FLSA class on June 25 ,
2015 ,

(Dkt. No. 77), and on August 5, 2017, moved to amend their

Complaint to add new parties and allegations of retaliation,
(Dkt. No. 115). The Court granted both motions on September 23,

3

2015.

(Dkt. No. 146.) Plaintiffs' Amended Complaint was filed on

December 17 , 2015 .

(the "Amended Complaint ," Dkt . No. 191.)

Discovery has been ongoing , and deadlines have been
continually pushed back to accommodate the parties' schedu li ng
difficulties. As of this Opinion , the parties '

anticipated

deposition schedu le extends until the end of December 2017 .

(See

Dkt . No. 314. )

On July 6, 2017 , Pla in tiffs moved the instant motion, which
was taken on submission and marked fully submitted on September
13, 2017.

(Dkt. No . 300 . )

Facts

The following facts are drawn from Plaintiffs' Amended
Complaint and the declarations , affidavits , and exhibits
submitted with respect to the instant motion for class
certification . The facts are not in dispute unless otherwise
noted .

Defendants own and operate the Discount Stores, a
collection of discount stoies located throughout the Bronx and

4

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'

Queens, New York. Plaintiffs are non-exempt employees at one or
more o f the Discount Stores who allege they were required to
work six-day, 60 hour week schedules regularly, with one lunch
break per day for a maximum of twenty minutes or fewer.
Plaintiffs allege that Defendants maintained a policy of failing
to pay employees at the Discount Store minimum wage, over time,
and spread of hours premium pay. As part of the alleged
employment practices, Defendants did not issue proper wage
statements or notifications of pay rates and generally paid in
cash and off the books. According to Plaintiffs, Discount Stores
workers often worked at several l ocat i ons and were regularly
transferred between stores temporarily o r permanently.

Plaintiffs also describe a retaliatory campaign by
Defendants aga ins t Discount Store employees expressing interest
or participating in the instant action. Specifically, Plaintiffs
allege that Defendants have suspended and reduced work hours,
demoted several Plaintiffs, threated termination, deportation,
and physical violation , and filed false police reports against
various Plaintiffs. In their Amended Comp laint, Plaintiffs have
identified fifteen particular employees as particular targets of
Defendants' retaliation.

(See Amended Compl.

5

~

28 . )

Proposed Class

Plaintiffs have proposed that the certified class be
defined as: "all non-exempt workers who worked at [Defendants'
Discount Stores] at any time from October 4, 2008 to the
present," (Declaration of Anthony Portesy dated July 6, 2017
("Portesy Deel."), Ex. A at 1, Dkt. No. 302-1), as defined by a
list submitted to the Court in conjunction with the instant
motion and which "exclud[es ] Defendants and members of their
immed iat e families,"

(P ls.' Mem. at 1; see Portesy Deel., Ex. X,

Dkt. No. 302 - 24 6 ). Plaintiffs have also sought a subclass of
"class members who worked for Defendants since April 9 , 2011 ,"
which would in clude add itional c laims brought under the Wage
Theft Prevention Act ( "WTPA") .

( Portesy Deel., Ex. A at 1; see

Pls.' Mem. at 1. )

6

Although at some points in their briefing, Plaintiffs
reference the list of prospective class members as attached to
the Portesy Declaration at Exhibit A, (Pls.' Mem. at 1 ; but see
Pls.' Mem at 22) , the list of names, labeled the "Bergen
Discount Stores Class List," appears actually to be annexed as
Exhibit X, (Portesy Deel., Ex. X) . Exhibit Xis what has been
considered for the instant motion.
6

Applicable Standards

Class certification is appropriate where the proposed class
meets , by a preponderance of the evidence f o ll ow in g a court's
"rigo rous analysis ," the requirements o f Rule 23(a) , and the
proposed class constitutes one of the types of c lasses
enumerated in Rule 23(b) . See Wal -Ma rt Stores , Inc. v . Dukes,
564 U.S. 338 , 351 (2011); Teamsters Local 445 Freight Di v .
Pension Fund v . Bombardier Inc ., 546 F . 3d 196 , 202

(2d Cir .

2008) ; In re Initial Pub. Offerings Secs . Litig., 471 F.3d 24 ,
29 (2d Cir . 2006) . "Frequently that ' r i gorous ana l ys is' will
entail some overlap with the merits of the plaintiff's
un der l y ing cla im." Dukes , 564 U. S. at 35 1; accord Bombardier ,
546 F.3d at 202 . Howeve r, "in making such determinations , a
district judge should n ot assess any aspect of the merits
unrelated to a Rule 23 re qu irement." In re Initial Pub.
Offerings,

4 7 1 F.3d at 41. The Court has discretion on questions

of class certification because " the distr ict court is often in
the best position t o assess the propriety of t he class and has
th e ability

to alter or modify the c l ass, c r eate

subclasses , and decertify the class whenever warranted ."
Sumitomo Copper Li t ig. v. Credit Lyonn ais Rouse , Ltd., 262 F. 3d
1 34 , 139 (2d Cir . 200 1 ) . However , th e "questi on is not whether

7

the plaintiff has stated a cause of action or will prevail on
the merits, but rather whether the requirements of Rule 23 are
met." Gomez v. Lace Entm't, Inc., No. 15 Civ. 3326 (CM) , 2017 WL
129130, at *4

(S .D.N.Y. Jan. 6, 2017)

YellowPages . com , LLC, No. 10 Civ. 7318

(quoting Kowalski v.
(PGG), 2012 WL 1097350,

at *12 (S . D. N.Y. Mar . 31, 2012)).

The four prerequisites of Rule 23(a) are that :
(1) the class is so numerous that j o inder of all
members is impracticable; ( 2) there are questions of
law or fact common to the c lass; ( 3) t he claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will
fairly and adequately
protect the interests of the class.
Fed. R. Civ . P. 23(a). Plaintiffs must also show the class
definition is ascertainable. In re Initial Pub. Offerings , 471
F.3d at 44 -45. "An identifiable class exists if its members can
be ascertained b y reference to objective criteria ." In re
Fosamax Prods . Liab. Litig., 248 F.R.D. 389, 395 (S .D.N. Y. 2008)
(quoting In re Methyl Tertiary Butyl Ether Prods . Liab. Litig.,
209 F.R.D. 323 , 337 (S.D .N. Y. 2002)) .

In addition to meeting the requirements of Rule 23(a), the
proposed class must constitute one of the types of classes
enumerated in Rule 23(b). As relevant to Plaintiffs' instant

8

motion, Rule 23(b) (3) provides for class certification if the
requirements of Rule 23(a) are met and:
the court finds 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 .
The matters pertinent to these findings include: (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 desirabi lit y 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) (3).

"The Second Circuit has emphasized that Rule 23 should be
given liberal rather than restrictive construction, and it seems
beyond peradventure that the Second Circuit's general preference
is for granting rather than denying class certification ."
Espinoza v. 953 Associates LLC, No. 10 Civ. 5517 (SAS), 2011 WL
5574895, *6 (S.D.N.Y . Nov. 16, 2011)

(quoting Gortat v . Capala

Bros., Inc., 257 F.R.D. 353 , 361 (E.D .N.Y. 2009)).

9

'

.
Plaintiffs' Motion is Granted

I.

Timeliness of the Instant Motion

In opposition to Plaintiffs' instant motion, Defendants
have put forward a single argument: that Plaintiffs' motion is
"untimely." (Defs .' Mem. of Law in Opp.

("Defs.' Opp. " ) at 11.)

Specifically , Defendants contend that filing for class
certification almost three years after the initial filing of
Plaintiffs' Complaint is undue delay because Plaintiffs had
sufficient evidence earlier to support an application for class
cert ifi cation and granting the motion now is fundamentally
unfair to Defendants because it delays the litigation.

(See

genera ll y Defs.' Opp .)

Rule 23 does not set a specific timeframe for filing a
motion for class cert ifi cation , only instructing that the matter
be determined "[a]t an early practicable time after a person
sues or is sued .

" Fed. R. Civ. P. 23 (c) (1) (A). While the

Second Circuit has found that Rule 23 's time l i mits on class
certif icati on "certainly mean pre-trial," it has also stated
that "it is proper for a district court, prior to certification
of a class, to allow discovery and to conduct hearings to

10

.

'

'

'

determine whether the prerequisites o f Rule 23 are satisfied."
Philip Morris Inc. v . Nat'l Asbestos Workers Med. Fund, 214 F.3d
1 32 , 135 ( 2d Cir. 200 0)
Inc.,

(quoting Sirota v. Soli tr on Devices,

673 F.2d 566, 571 (2d Cir. 1982 )) .

[T]h e untimeliness of a

class-certification motion, in and of itself, will not justify
denying class status to the action," and "will be denied only
when the late timing of the determination may cause prejudice or
unduly complicate the case." Saravia v. 2799 Broadway Grocery
LLC, No. 12 Civ. 7310
May 16, 2014)

(PAC), 2014 WL 2011720, at *2

(S .D.N.Y.

(quoting 7AA CHARLES ALAN WRIGHT, ARTHUR R. MILLER,

&

EDWARD H. COOPER , FEDERAL PRACTI CE AND PROCEDURE§ 1785.3 (3d ed. 1998));
see also Acticon AG v. China N. E. Petroleum Holdings Ltd.,
F. App'x 1 0 , 12 (2d Cir. 2017)

687

(citing the same).

Defendants' arguments are unavailing. From the start,
Plaintiffs' Complaint describes its allegations as a "Class
Action" with "Class- and Co llective-Wide Factual Allegations"
and seeks cert ification of a c lass under Rule 23.
17-18, 27.) Since then,

(See Compl. at

Plaintiffs has also moved for and have

been granted collective certification for their FLSA claims.
With such "ample notice," Defendants cannot c laim to be
surprised by the current motion. Acticon,

687 F. App'x at 12;

see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 206

11

(S.D.N.Y.

2006)

(rejecting untime l iness argument when "P l aintiff ' s

procedural stance has been as a class action since the inception
of this matter , evinced both by the Comp l aint and by
conversations and correspondence with the Court") .

Deciding class certification now will

no~

prejudice

Defendants ' case or unduly delay the litigation . Discovery is
ongoing , depositions are presently scheduled to be resolved- at
the earliest-at the end of the year , and no trial date has been
set . See Pyke v. Cuomo , 209 F.R . D. 33 , 37

(N . D. N. Y. 2002)

(rejecting c l ass certification unt i meliness argument when it was
the " first such request for certif i cation and the trial is
anything but imminent") . Defendants have not explained how class
certification now would have a prejudicial impact on the current
discovery t i me l ine , and given the overarching common questions
presented , it appears unlikely to do so . See Saravia, 2014 WL
2011720 , at *2 (rejecting class certification prejudice argument
and noting "Defendants do not specify what additional discovery
they would need for purposes of this motion") . Given the
continued discovery time l ine , no reason has been shown why the
notice and opt-out process would engender delay.

12

Lastly, as to Defendants argument that Plaintiffs could
have made this motion at an earlier date than actually made,
some delay is understandable and, in any event, does not make
the current motion insufficiently "early in the proceedings" to
consider. Acticon, 687 F. App ' x at 12 (quoting In re Philip
Morris Inc. v . Nat'l Asbestos Workers Med. Fund, 214 F.3d 132
(2d Cir. 2000)) . Reviewing the procedural posture of this case,
Plaintiffs repeatedly have needed to seek-and, consequently,
brief-for injunctions and sanctions motions against Defendants
for discovery and interference in the litigation; there have
been numerous difficulties throughout the discovery and
deposition process, all of which are exemplified by the fact
that the initial pretrial conference was not held until November
2016. Plaintiffs have represented that the instant motion was
filed shortly after Defendants were able to depose each of the
proposed class representatives.

(See Pls .' Reply Mem. of Law

("Pls. ' Reply " ) , at 3 , Dkt . No . 327 . ) Defendants have sought to
portray a delay of "thirty-three months" as untimely,
Opp . at 1) , but "it is not," Pyke, 209 F.R.D. at 37
origina l)

(Defs .'

(emphasis in

(rejecting a ten year gap between filing a complaint

and motion for class certification as untimely because of
intervening substantive motions and an appeal sent up to the
Second Circuit). While theoretically Plaintiffs' motion could

13

have been made sooner , their motion will not be denied for
untimeliness . 7

II.

Rule 23(a) Requirements

A class may be certified only if it satisfies the following
prerequisites : "(1) the class is so numerous that joinder of all
members is impracticable;
common to the class;

(2) there are questions of law or fact

(3) the claims or defenses of the

representative parties are typical of the c l aims or defenses of
the class ; and (4) the representative parties will fairly and
adequately protect the interests of the class. r Fed. R . Civ. P.
23(a). Courts have also found an implied requirement of
ascertainability to the express requirements set forth in Rule
23(a) . See In re Sadia , S . A . Sec. Litig. , 269 F.R.D . 298 , 305
(S.D.N . Y. 2010)

(citing In re Initial Pub. Offerings , 471 F.3d

at 30) . As noted above , Defendants have not disputed that
7

The limited authorities cited by Defendants do not persuade
otherwise. In Weiss v . La Suisse , 161 F. Supp . 2d 305 (S.D . N.Y.
2001) , the court denied plaintiffs leave to amend a complaint to
add a class-wide claim without even needing to reach the
question of class certification . Id. at 320. Here, class - wide
claims have been asserted from the start. In Schulte v. State of
N.Y ., 533 F. Supp . 31 (E.D .N. Y. 1981), in addition to noting
that class certification appeared inappropriate on the mer i ts,
the court found that certification would "only lead to further
delay ." Id. at 37. For reasons stated above, that is not the
case here.
14

Plaintiffs fail to satisfy any of the Rule 23 (a) prongs. For the
reasons set forth below, the proposed class satisfies the four
requirements of Rule 23(a) and the additional requirement of
ascertainability.

a. Numerosi ty

Rule 23(a) (1)

requires that the class be "so numerous that

joinder of all members is impracticable." Fed. R. Civ. P.
23 (a) (1). "Generally, a class composed of mor j than forty
members satisfies the numerosity requirement." Noble v. 93 Univ.
Place Corp., 224 F.R.D. 330, 338

(S.D.N.Y. 2004); see also

Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483
Cir. 1995)

(2d

(" [N] umerosi ty is presumed at a level of 4 0

members."). "Although a plaintiff need not pr, sent a precise
calculation of the number of class members and it is permissible
for the court to rely on reasonable inferences drawn from
available facts, the movant must show some evidence of or
reasonably estimate the number of class membe n s." Gomez, 2017 WL
129130, at *5 (citation omitted).

Here, Plaintiffs have identified over fo l ty similarly
situated workers other than Defendants' family through a contact

15

list provided by Defendants and opt -in s from the FL SA action, as
demonstrated by their proposed class list. Deposition evidence
presented by Plaintiffs corroborates that the class size i s over
a hundred and, at minimum, wel l over forty.

Accordingly , the proposed class has satisf i ed numerosit y .

b . Commonali t y and Typicality

Rule 23 (a) (2) requires that there be "questions of law or
fa c t common to the class ." Fed . R. Civ. P. 23(a) (2) . Rul e
23(a) (3)

requires that the "claims or defenses of the

representative parties are typical of the c l a ims or defenses of
the class . " Fed . R . Ci v . P . 2 3 ( a ) ( 3 ) . "As a pract i c al matter ,
the two requ i rements tend to merge in the Second Circuit ' s class
certif i cat i on in qu ir y ." I gles ias-Men doza v . La Belle Fa rm , Inc.,
239 F . R . D. 363, 370 (S .D.N.Y. 2007)

(cit ing Caridad v . Metro -

North Commuter R.R., 191 F. 3d 283 , 291

(2d Cir. 1999)).

"Pl a intiff s mu st produce some 'quantum o f evidence to satisfy
the commonal i ty and typicality requirements, usually in the form
of aff i davits , statistical ev i dence , or both, t ending t o show
the ex ist ence of a class o f persons affected by a company - wide
policy or practice of discrimination.'" Eng - Hatcher v . Spr in t
16

Nextel Corp. , No. 07 Civ. 7350

(BSJ), 2009 WL 7311383, at *6

(quoting Attenborough v. Constr . & Gen . Bldg . Laborers '

Local

]!}_ , 238 F.R . D. 82 , 95 (S.D.N . Y. 2006)) . In the context of wage
and hour cases , courts in the Second Circuit have considered
"whether the employer had company - wide wage polic i es that
injured the proposed class ," Gomez, 2017 WL 129130 , at *7, and
"claims by workers that their emp l oyers have u r lawful l y denied
them wages to which they were legally entit l ed have repeated l y
been held to meet the commonality prerequisite for class
certification , Espinoza v. 953 Assocs . LLC, 280 F.R . D. 113 , 127
( S. D. N. Y. 2011)

( colleting cases) . While it is possible

"individual circumstances of class members

dif~er , "

commonality

and typicality exist when class members' "injuries derive from a
unitary course of conduct
events and .

arise from the same course of

. make [ ] similar legal arguments to prove

defendant ' s liability. " Id . at 127 - 28
omitted)
Civ . 8698

(internal quotation marks

(quoting Velez v . Maj ik Cleaning Serv . , Inc . , No. 03
(SAS) , 2005 WL 106895 , at *2 (S.D . N. Y. Jan . 19 ,

2005)).

Both commonality and typica l ity are met here . The
allegat i ons of the proposed class arise from common company-wide
policies and practices by Defendants at their Discount Stores ,
17

practices that failed to follow the NYLL and, amongst other
things, failed to pay minimum wage, over time, and spread of
hours premium pay. The claims of the proposed WTPA Subclass are
likewise similar, alleg i ng Defendants with a common policy and
practice of failing to issu e wage statements and notifications
of pay rates, also in vio l ation of the NYLL; moreover , a
subclass is warranted here given the need to different iate
amounts of damages under the add iti ona l statute. See Alleyne v .
Time Moving & Storage Inc., 264 F.R.D. 41, 50

(E.D.N.Y. 2010)

(stating that "creation of subclasses may sometimes be cal led
for where there is an unequal allocation of a settlement fund to
different categories of class members"). There is no dispute
that the proposed class and subclass representatives' claims and
defenses are typical of the class members generally.

(See

generally Declarations in Support of Mot. to Certify Class, Dkt.
Nos. 303 - 09 . ) Defendants' defenses are the same as to each of
these allegations: that the potential class members were not
employees of the Defendants, did not work overtime , and were not
paid less than minimum wage.

Accordingly, commona lit y and typicality are satisfied. See
Stinson v . City of N. Y. , 282 F.R.D. 360 , 371 (S .D. N. Y. 2012)
(finding typicality when claims arose "fr om the same course of
18

events, and each class member makes similar legal arguments to
prove the defendant's liability).

c. Adequacy

Rule 23(a) (4)

requires that "the represen l ative parties

will fairly and adequately protect the interes l s of the class."
Fed. R. Civ. P . 23(a) (4) . "Adequacy of representation is
evaluated in two ways:

(1) by looking to the qualifications of

plaintiffs counsel; and (2) by examining the interests of the
named plaintiffs." Gomez, 2017 WL 129130, at *8

(citing Baffa v.

Donaldson, Lufkin & Jenrette Sec. Corp. , 222 F . 3d 52,

60

(2d

Cir . 2000)) . To defeat class certification , "t h ere must be a
showing of a genuine conflict between the proposed class
I

representative's interests and those of the other members of the
class , and only a conflict that goes to the very subject matter
of the litigation will defeat a party's claim of representative
status." Stinson, 282 F .R.D. at 371 (internal quotation marks
and citation omitted). Plaintiffs have satisfied both Baffa
prongs.

19

Where proposed "class representatives are prepared to
prosecute fully the action and have no known conflicts with any
class member," adequacy as to class representatives is
satisfied. Shahriar v. Smith & Wollensky Rest. Grp., Inc.,
F.3d 234, 253 (2d Cir. 2011). Each of the

prop ~ sed

659

class

representatives have already participated in wl itten discovery
requests and been deposed; many have attended and participated
in court hearings, including Defendants' conteb pt hearing.
Lastly, the proposed class representatives' in i erests are
aligned with those the putative class, since each asserts he or
she has been injured in the same way, by Defendants' allegedly
illegal company practices. See Darquea v. Jarden Corp., No. 06
Civ. 722

(CLB), 2008 WL 622811, at *3 (S.D.N.Y. Mar. 6, 2008)

("All claims alleged arise from the same wrongful conduct, and
thus, Plaintiff's interests, recouping money invested, are
I

similar to those of the proposed class. As sue t , named
Plaintiffs will fairly and adequately protect the interests of
the class.").

As for proposed co-lead class counsel, Marlborough Law
Firm, P.C., and Slater Slater Schulman LLP, both possess
litigation experience representing unpaid workers in certified
and conditionally certified class actions, and prior
20

representations and actions in this action demonstrate
familiarity with the applicable law.

(See PornIesy Deel., Exs. Q

& R, Dkt. Nos. 302 -17 & 302-18.) Both firms a J e qualified to
represent the proposed class.

Accordingly, adequacy as to the proposed class
representatives and class counsel is satisfie d .

d. Ascertainability

"In addition to the explicit Rule 23 requirements, courts
in this District have also imposed an implicit 'ascertainability
requirement' upon the certification process." Gomez, 2017 WL
129130, at *8

(collecting cases). The standard for

ascertainability "is not demanding" and "is designed only to
prevent the certification of a class whose membership is truly
indeterminable." Id.

(quoting Gortat v. Capala Bros.,

Inc., No.

I
07 Civ. 3629 (ILG), 2010 WL 1423018, at * 2 (E.D.N.Y. Apr.

2010)).

21

9,

Here, ascertainability is established.

Pl~ intiffs

have

already assembled a list of prospective class l nd subclass
members by name, and c lass membership can ultimately be
ascertained by objective documentation, such a l payroll records
and indi v iduals identified by Defendants as no k -exempt workers
during discovery, all o f which appears to be r f adily available.
See, e.g., Dunnigan v. Metro. Life Ins. Co., 2 ~ 4 F.R.D. 125, 13 6
(S.D .N.Y. 2003)

("The class can be identified through an

examination of the individual files of each of the
participants.").

Accordingly, the proposed class is ascertainable. See
Noble, 224 F.R.D. at 341 (accept ing as ascertainable a class
defined as "all non-exempt employees who were h ot paid overtime
I

compensation for each hour worked in excess of forty hours per
week" as defendants' company) .

III. Rule 23 (b) (3) Requirements

In addition to meeting the requirements of Rule 23(a) , a
proposed class must also constitute one of the types of classes
enumerated in Rule 23(b) . Plaintiffs have moved for c lass
22

cer tifi cation under Rule 23 (b) ( 3) . Rule 23 (b) ( 3) provides that a
class action may be maintained if "the court ] inds that the
questions of law or fact common to class memb J rs predominate
over any questions affecting on l y individual members, and that a
class action is superior t o o th er ava il able methods for fairly
and efficiently adjudicating the controversy ." Fed. R. Civ . P.
23(b) (3) . Similarly, Defendants have not cont, sted that

Plaintiffs have satisfied the requirements under Rule 23(b) (3)
For the reasons below , Plaintiffs have established by a
preponderance of the ev i dence that class certification is
appropriate.

a. Predominance

"T he Rule 23(b) (3) predominance inquiry tiests whether
proposed classes are sufficiently cohes i ve to warrant
adjudication by representation." Moore v . PaineWebber,
F . 3d 1247, 1252 (2d Cir . 2002)

Inc., 306

(quoting Amchem Prods., Inc. v .

Windsor, 521 U. S . 591, 623 (1997)). "Class-wi de issues
predomin ate if reso l ution of some of the legal or factual
questions that qua lify each class member's ca J e as a genuine
controversy can be achieved through generalized proof, and if
these particular issues are more substantial than the issues

23

subject only to individualized proof. Id.

(cit l ng In re Visa

Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir.
2001)). "[W]hile a court evaluating whether a b ovant has
satisfied the requirements of Rule 23(b) (3) must examine both
the claims and the defenses, the mere fact that a defense may
arise and .

. affect different class members differently does

not compel a finding that individual issues predominate over
common ones. The relevant inquiry is not whether a defense
exists, but whether the common issues will predominate over the
individual questions raised by that defense." Gomez, 2017 WL
129130, at *9 (internal quotation marks and ci h ations omitted).

Common questions of liability predominate over individual
issues here. The overarching issues at play co h cern matters of
I

common policy and practice in Defendants' Discount Stores
regarding pay, recordkeeping, and notification obligations under
the NYLL. Cases of "wage claims are especially suited to class
litigation-perhaps 'the most perfect questions for class
treatment'-despite differences in hours worked, wages paid, and
wages due." Espinoza, 280 F.R.D. at 128 (quoting Ramos v.
SimplexGrinnell LP, 796 F. Supp. 2d 346, 359 (E.D.N.Y. 2011))
(collecting cases). As "all putative class memb ers were
allegedly harmed by a common practice .

24

. their grievances

·
.
·
I
re 1 ate to t h is universa 1 prac t·
ice imp l'
icate common ques t·
ions o f

law and fact" and "differences among class members as to the
number of hours worked, the precise work they did and the amount
of pay they received concern the amount of damages to which any

individual class

me~er

might be entitled,

no~

the amenability

of their claims to Rule 23 certification." Alleyne, 264 F.R.D.
at 49. The Amended Complaint's retaliation claims do not detract
from the predominant gravamen of Plaintiffs' allegations.

Accordingly, the predominance requirement is satisfied.

b. Superiority

The Rule 23(b) (3) superiority inquiry asks whether the
"class action is superior to other available l ethods for the
fair and efficient adjudication of the controversy." Fed. R.
Civ. P. 23(b) (3). "Courts routinely hold that a class action is
superior where .

potential class members are aggrieved by

the same policy, the damages suffered are small in relation to
the expense and burden of individual litigation, and many
potential class members are currently employed by [the
defendant]. Gomez, 2017 WL 129130, at *10 (quoting Whitehorn v.

25

Wolfgang's Steakhouse, Inc., 275 F.R.D. 193,

~ 00

(S . D.N. Y.

2011)) .

Superiority has been established here. Given the
overarching questions common to all putative class members and
in the context of the amount of damages for each individual
plaintiff and that a FLSA action has already b b en conditionally
certified against Defendants, a simultaneous class action over
the NYLL claims would allow for a "more cost-efficient and fair
I

litigation of common disputes." Damassia v. Du 9- ne Reade, Inc.,
250 F.R.D. 152, 164 (S.D.N.Y . 2008) ; see id.

(observing the

"overwhelming precedent in the Second Circuit l upporting
certification of simultaneous NYLL class actions and FLSA
collective actions" and collecting cases). Mor J over, given
Plaintiffs previous need to acquire a preliminary injunction
against Defendants for intimidating employees for getting
involved in this action, there is cause for "t He re is reason to
believe that class members may fear reprisal and lack
familiarity with the legal system, discouraging them from
pursuing individual claims ." Noble, 224 F.R.D. at 346.

Accordingly , the superiority requirement is satisfied.
26

IV.

Class Counsel

Plaintiffs have moved to have

Marlboroug~

Law Firm,

P.C.

and Slater Slater Schulman LLP appointed as co -lead c lass
counsel . In appointing class counsel , Rule 23(g) directs that a
court consider: "(i) the work counsel has done in identifying or
investigating potential c laims in the action;

(ii) counsel's

experience in handling c lass actions, other complex litigation,
and the types of claims asserted in the action·
knowledge of the applicable law; and (iv) the

(iii) counsel's

~esources

that

counsel will commit to representing the class.' Fed. R. Civ . P.
23 (g)

(1)

(A). Defendants do not dispute the qualifications of

Plaintiffs' proposed class counsel and, as not l d above, proposed
co~lead

class counsel appear qualified and experienced to

represent this class , both from their past experiences and
handling of this matter up through the present . Accordingly ,
counsel are hereby appointed co -lead class coumsel.

V.

Notice

Federal Rule of Civil Procedure 23 (c) (2) (B) provides that

I

when a class is certified under Rule 23 (b) (3), "the court must
direct to class members the best notice practi q able under the
27

circumstances, including indi v idual notice to all members who
can be identified through reasonable effort." Fed. R. Civ. P .
23(c) (2) (B)
176 ( 197 4)

8;

see Eisen v. Carlisle

&

Jacqueli !fl ,

417 U.S.

156,

( " [I] ndi victual notice to identifiable class members

is not a discretionary consideration to be waived in a
particular case . It is, rather, an unambiguous requirement of
Rule23.").

Having reviewed Plaintiffs' proposed Noti f e of Class
Cert ifi cat i on (the "Not ice"),

(see Portesy Deel., Ex. A), the

Court finds the language o f the notice sufficient to satisfy the
Rule 23 ( c) ( 2) (B)

8

requirements. Plaintiffs' requested lan guage

Rule 23 (c) (2) (B) provides:
For any class certified under Rule 23(b) 3) , the court
must direct to class members the best notice that is
practicable
under
the
circumstance J,,
including
individual notice to all members who can be identified
through reasonable effort. The notice must clear ly and
conc isely state in plain, easily understo~d language:
(i) the nature of the action;
(ii) the definition of the class certif i ed ;
(iii) the c la ss claims, issues, or defens J s;
(iv)
that a class member may enter J n appearance
through an attorney if the member so desi ~ es;
(v) that the court will exclude from t jhe class any
member who requests exclusion;
clusion; and
(vi) the time and manner for requesting e 1
(vii)
the binding effect of a class judgment on
members under Rule 23 (c) (3)

Fed. R. Civ. P. 23 (c) (2) (B).
28

translations are also appropriate.

(See Pls.' Mem. at 1.)

Although Plaintiffs did not propose a manner ·n which to deliver
the notice, delivery by first class mail is proper. See , e.g .,
Bourlas v . Davis Law Assocs., 237 F.R.D. 345, 356 (E.D.N .Y.
2006).

Accordingly, to effectuate such notice, within fourteen
\
days of the date of this Opinion , Defendants ar e di'rected to
provide Plaintiffs with the dates of employmen h , last known
addresses, and last known telephone numbers of \ the proposed
class members Plaintiffs have identified as numbers 114 through
125 on Exhibit X of the Portesy Declaration. W thin ten days of
i
receipt of the contact information of potentia

class members

from Defendants, Plaintiffs are directed to mail their proposed
Notice, with translations in English , Spanish, and French, and
all appropriate dates and quantities updated, to each individual
class member as described above, providing cla 8i s members thirty
days to opt-out of the class following the Notice's mailing.
Defendants are also directed to post the Notic e , immediately
upon receipt of it from Plaintiffs , in a conspicuous location
visible to all potential class members in each of the
Defendants' Discount Stores until the conclusiol
period.

29

of the opt-out

Conclusion

For the foregoing reasons, Plaintiffs ' rn4 tions for class
certification is granted , with a class and su, class certified as
defined above. Keletso Tebogo , Olugbenga Opesanwo , David
Richardson , Ronald Agyemang , Angel Cartagena, and Maria Sumano
are appointed class representatives for the class and subclass.
Marlborough Law Firm, P . C. and Slater Slater s f hulrnan LLP are
appointed co - class counsel for both the class and subclass.
Plaintiffs are directed to issue the Notice, a h d Defendants are
directed to provide to Plaintiffs the proposed class member
information and post the finalized Notice, as h etailed above .

It is so ordered .

New York, NY
October
2017

i6 ,

ROBERT W. ~WEET
U.S.D. i .

30