Sanchez v. New York Kimchi Catering, Corp. et al
OPINION AND ORDER re: 28 MOTION to Certify Class . filed by Walter Neira Sanchez. For the foregoing reasons, Plaintiff's motion for class certification is GRANTED in part and DENIED in part. It is hereby ordered that: (1) Plaint iff is appointed the class representative to sue on behalf of a class of all non-exempt persons employed by Defendants on or after March 1, 2014, for Defendants' alleged violations of the NYLL based on failure to provide proper wage and hour notices and failure to provide proper wage statements. (2) Lee Litigation Group, PLLC is appointed class counsel. (3) By July 14, 2017, Plaintiff shall file any pre-motion letter in accordance with the Court's individual rules for any motion t o renew the class certification motions denied without prejudice herein. Defendants shall respond by July 21, 2017. (4) By July 14, 2017, Defendant shall file any objections and proposed revisions to Plaintiff's proposed "Notice of Lawsui t" filed in connection with this motion, Docket Number 31-1. (4) A pre-motion conference and/or status conference will be held on July 26, 2017, at 10:30 a.m. The Clerk of Court is respectfully directed to close the motion at Docket Number 28. (Signed by Judge Lorna G. Schofield on 6/28/2017) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WALTER NEIRA SANCHEZ,
NEW YORK KIMCHI
CATERING, CORP., et al.,
16 Civ. 7784 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiff Walter Neira Sanchez brings this action under the Fair Labor Standards Acts
(“FLSA”) and the New York Labor Law (“NYLL”) against his alleged former employers,
Defendants New York Kimchi Catering, Corp., Gum Gang Inc. (“Gum Gang”), Un Cha Kim and
Sandra Yoo. He moves for class certification on his claims arising under NYLL pursuant to
Federal Rule of Civil Procedure 23 (“Rule 23”). For the following reasons, his motion is granted
in part and denied in part.
Defendant Yoo owns Defendant Gum Gang, which operates a restaurant called “New
York Kimchi” in Manhattan. Defendant Kim has been the bookkeeper, payroll clerk and office
manager of Gum Gang’s restaurant since February 2015. Defendant New York Kimchi
Catering, Corp. occupied the restaurant premises before Gum Gang opened around March 2014.
Defendant Kim attests that Gum Gang and New York Kimchi Catering, Corp. are unrelated
According to Plaintiff, between February 2014 and November 2014, he worked as a
“delivery person at Defendants’ ‘New York Kimchi’ restaurant and catering, event planning, and
food delivery service.” According to Defendant Kim, Gum Gang has no record that Plaintiff
“worked for Gum Gang Inc. or worked at the ‘New York Kimchi’ restaurant.”
Defendants’ Alleged Wage and Hours Policies
Plaintiff attests that “[b]ased on [his] personal observations and conversations with other
employees, all other non-managerial employees employed by Defendants at New York Kimchi
were subject to similar wage and hour policies, including, but not limited” to eight individuals
who were also delivery persons and another individual who was a cook. Plaintiff does not
specify whom he observed, what positions they held, or to whom he spoke. As to the nine
individuals, he does not attest that he spoke with them and identifies seven by first name only.
With respect to the Defendants’ alleged policies, Plaintiff avers that all non-managerial
employees, including Plaintiff:
were paid a “straight-time regular hourly rate” rather than the one and one-half rate
for overtime hours, i.e., hours worked in excess of 40 hours per workweek;
never received the “spread of hours” premium when their workdays exceeded 10
never received any written wage and hour notice at the time of hiring informing them
of their rates of pay or other requirements under New York law; and
never received a wage statement with each payment of wages.
Plaintiff also attests that he was a tipped employee and his hourly rate of pay was $5.00.
For tipped employees, including Plaintiff, he attests:
they were paid at hourly rates that were at all times below the prevailing minimum
they never received any notices that Defendants were taking a tip credit;
they spent at least 2 hours per day or 20 percent of their time performing non-tipped
the tips they received were retained by Defendants at catering events, and they
received only nominal tip amounts, regardless of the actual amount in tips they
Defendants retained approximately 60 percent of the tips earned by tipped employees
on each customer order paid for by credit card.
The other evidence Plaintiff adduces comes solely from a wage and hour lawsuit that
Plaintiff’s counsel brought against Defendants and settled in May 2016, Burgos v. New York
Kimchi Catering, Corp., No. 15 Civ. 1971 (S.D.N.Y. May 6, 2016) (“Burgos litigation”).1 That
evidence includes three pages of timesheets from two of the plaintiffs in the previous action who,
like Plaintiff, were delivery persons and two paystubs from one of those individuals. It also
includes the deposition transcripts of Defendant Kim and Mohammad Aveek, who worked as a
delivery person for several months until he became manager in February 2015.
The Complaint alleges one count under FLSA and one count under NYLL. The count
arising under NYLL alleges five distinct claims. First, Defendants failed to pay overtime
compensation at the lawful rate for hours worked in excess of 40 hours per workweek. See 12
N.Y. Comp. Codes R. & Regs. tit. 12, § 146–1.4. Second, Defendants failed to pay a spread of
hours premium for each workday that exceeded ten hours. See id. § 146–1.6. Third, Defendants
did not provide wage and hour notices at the beginning of an employee’s employment or any
time thereafter. See N.Y. Lab. Law § 195(1); N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.2.
Fourth, Defendants did not provide proper wage statements, i.e., paystubs, with each payment of
wages. See N.Y. Lab. Law § 195(3); N.Y. Comp. Codes R. & Regs. tit. 12, § 146–2.3. Fifth,
Defendants failed to pay tipped employees the minimum wage because Defendants were not
entitled to take any tip credits. See N.Y. Comp. Codes R. & Regs. tit. 12, § 146–1.3.
Plaintiff was not a party to the Burgos litigation. Defendants do not argue that the settlement
reached by the three plaintiffs in Burgos binds Plaintiff or otherwise precludes him from
asserting his claims on behalf of himself or a class of other employees that does not include the
Plaintiff moves for class certification under Rule 23 on the NYLL claims, seeking
certification of the NYLL claims “on behalf of all non-exempt employees employed by
Defendants at ‘New York Kimchi’ located at 16 West 48th Street, New York NY 10036 on or
after the date that is six (6) years before the filing of the initial Complaint.” He also seeks to
certify a subclass of tipped employees “including but not limited to waiters, bussers and delivery
persons, employed by Defendants” related to the alleged minimum wage violations. Plaintiff
requests that his counsel, Lee Litigation Group, PLLC, be appointed class counsel.
Under Rule 23(a), plaintiffs may sue as a class only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there
are questions of law and fact common to the class; (3) the claims or defenses of
the representative parties are typical of those of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class.
A class must also satisfy at least one of the requirements contained in Rule 23(b). Fed. R.
Civ. P. 23(b); see Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015). Here, Plaintiff
seeks certification under Rule 23(b)(3), which permits class certification only if (1) “questions of
law or fact common to class members predominate over any questions affecting only individual
members,” and (2) “a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
Rule 23 “‘does not set forth a mere pleading standard.’ Rather, a party must not only ‘be
prepared to prove that there are in fact sufficiently numerous parties, common questions of law
or fact,’ typicality of claims or defenses, and adequacy of representation, as required by Rule
23(a).” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011)). This requires a “rigorous analysis” that “frequently
entail[s] overlap with the merits of the plaintiff’s underlying claim.” Roach, 778 F.3d at 407
(quoting Comcast, 133 S. Ct. at 1432). The plaintiff must establish by a preponderance of the
evidence that each of Rule 23’s requirements is met. In re Vivendi, S.A. Sec. Litig., 838 F.3d
223, 264 (2d Cir. 2016).
Overtime and Spread of Hours Claims
1. Plaintiff’s Proposed Class of All Non-Exempt Employees
As to the overtime claim and spread of hours claim, Plaintiff’s proposed class definition
of all non-exempt employees dating back to 2010 is denied without prejudice to renewal. For
both claims, Plaintiff’s proposed class fails because he has not proven commonality or typicality.
The commonality requirement is met if a plaintiff’s claims “depend upon a common
contention” that is “of such a nature that it is capable of classwide resolution -- which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.” Wal-Mart, 564 U.S. at 350; accord Johnson v. Nextel Commc’ns
Inc., 780 F.3d 128, 137 (2d Cir. 2015). Typicality is satisfied where “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.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35
(2d Cir. 2009); accord In re Virtus Investment Partners, Inc. Sec. Litig., No. 15 Civ. 1249, 2017
WL 2062985, at *3 (S.D.N.Y. May 15, 2017).
“[T]he commonality and typicality requirements of Rule 23(a) tend to merge” in certain
contexts, Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 80 (2d Cir. 2015) (quoting WalMart, 564 U.S. at 349 n.5), including claims under NYLL. Specifically, courts have found that
commonality and typicality may be satisfied if the plaintiff offers sufficient proof that the
defendant had either an explicit or de facto class-wide unlawful labor policy or practice. See,
e.g., Masoud v. 1285 Bakery Inc., No. 15 Civ. 7414, 2017 WL 448955, at *5 (S.D.N.Y. Jan. 26,
2017); Rivera v. Harvest Bakery Inc., 312 F.R.D. 254, 269–72 (E.D.N.Y. 2016) (noting that if “a
plaintiff provides proof of a common policy or practice on the part of the defendant to underpay
its workers, courts frequently find typicality to be satisfied for largely the same reasons that they
find commonality to be satisfied”).
For the overtime claim regarding Defendants’ alleged policy of paying the regular hourly
rate for all hours worked, the only evidence Plaintiff adduces is (1) his own declaration and
(2) three pages of timesheets of two individuals who were delivery persons. This is insufficient
to show by a preponderance of the evidence either an explicit or de facto restaurant-wide policy
of paying regular hourly rate instead of overtime rate.
Although commonality and typicality may be established based on employee
declarations, see, e.g., Ruiz v. Citibank, N.A., 93 F. Supp. 3d 279, 289–90 (S.D.N.Y. 2015), aff’d,
No. 15-3941-CV, 2017 WL 1379369 (2d Cir. Apr. 14, 2017) (summary order), Plaintiff’s sole
declaration is of minimal value in this case. Plaintiff, who worked in a single position, opines
broadly that -- based on his own experience and “personal observations and conversations with
other employees” -- all other non-managerial employees were paid regular hourly rates rather
than an overtime rate. Plaintiff, however, does not testify regarding who or what he personally
observed. He also does not identify to whom he spoke or when he spoke to them. These
conclusory statements cannot sustain his assertion of a restaurant-wide policy dating back to
2010. See, e.g., Mendez v. U.S. Nonwovens Corp., 314 F.R.D. 30, 47 (E.D.N.Y. 2016) (noting
that conclusory statements contained in a declaration “lack the kind of precision and detail from
which the Court might infer a uniform policy on the part of the Individual Defendants to deny
compensation to their employees”); Fernandez v. Wells Fargo Bank, N.A., No. 12 Civ. 7193,
2013 WL 4540521, at *8 (S.D.N.Y. Aug. 28, 2013) (noting that statements contained in
declarations were of limited value where it “include no dates (not even approximations) of when
the[ alleged] communications took place” and identified “none of the speakers or participants in
The timesheets are similarly unavailing. They concern the two plaintiffs in the Burgos
litigation who, like Plaintiff, were delivery drivers. They are of limited value to support a
finding of restaurant-wide commonality and typicality. See Balverde v. Lunella Ristorante, Inc.,
No. 15 Civ. 5518, 2017 WL 1954934, at *4 (S.D.N.Y. May 10, 2017) (refusing to include
kitchen employees in class with tipped employees where the plaintiffs lacked direct evidence
regarding compensation of kitchen employees). Further, the timesheets do not reflect that these
individuals were consistently paid at the regular hourly rate rather than the overtime rate. To the
contrary, they show that, at least for some weeks, individuals were at times paid at an overtime
rate, which is corroborated by a paystub adduced by Plaintiff.
Plaintiff’s evidence also carries little weight because it is temporally limited. He seeks a
class dating back to 2010 but his affidavit and timesheets concern only part of 2014 and roughly
two months in 2015. He also fails to offer any documentary evidence regarding Defendant New
York Kimchi Catering Corp.’s compensation policies, which operated the premises for a
majority of the proposed class period, i.e., 2010 to 2014.
Lastly, Plaintiff’s evidence is not unrebutted. Both Defendant Kim and Aveek testified
that Defendants paid employees an overtime rate rather than a regular rate for hours worked in
excess of 40 hours. Accordingly, Plaintiff has failed to show by a preponderance of the evidence
commonality and typicality for the overtime claim on behalf of a class of all non-exempt
employees dating back to 2010.
Similarly, as to the spread of hours premium, Plaintiff’s only evidence is a conclusory
statement in his affidavit and a single week in a “punch clock record” by a Burgos plaintiff for
which Plaintiff argues the corresponding timesheet reveals no spread of hour premiums were
paid. The affidavit merely states, “Based on my personal observations and conversations, other
non-managerial employees” were not paid a spread of hours premium. The punch clock record
and timesheet are of limited value because Plaintiff offers no deposition testimony or other
evidence explaining what the punch clock record reflects. Plaintiff also asserts in his
memorandum of law that an “[e]xamination of Defendants’ documents for other pay periods
demonstrate[s] Defendants’ consistent failure to pay any spread of hours premium for workdays
exceeding 10 hours.” “An attorney’s unsworn statements in a brief are not evidence.” Kulhawik
v. Holder, 571 F.3d 296, 298 (2d Cir. 2009). Therefore, as to his spread of hours claim, Plaintiff
has failed to carry his burden to show commonality and typicality for a proposed class of all nonexempt employees who worked for Defendants from 2010 to the filing of the Complaint.
2. Plaintiff’s Alternative Theory for Tipped Employees Only
Plaintiff offers an alternative basis for certifying the overtime claim and spread of hours
claim that is applicable to tipped workers only. Specifically, he argues that even if Defendants
paid employees one and one-half times their regular rate for hours worked in excess of 40 hours
in a workweek or paid a spread of hours premium, they nonetheless failed to pay the tipped
workers the required amounts. Citing the testimony of Aveek and Defendant Kim, Plaintiff
states that for employees whose compensation included a tip credit, Defendants unlawfully
deducted the tip credit allowance to determine the regular hourly rate, which was then multiplied
by one and one-half to calculate the overtime rate. New York law, however, requires that the
overtime rate for tipped employees be one and one half times the prevailing minimum wage with
the tip credit then deducted. See N.Y. Comp. Codes R. & Regs. tit. 12, § 146–1.4; see Flores v.
Anjost Corp., 284 F.R.D. 112, 117 (S.D.N.Y. 2012). Plaintiff makes a similar assertion based on
the same evidence for the spread of hours claim, arguing that the premium should have been the
prevailing minimum hourly rate rather than the employees’ tipped hourly rate. See N.Y. Comp.
Codes R. & Regs. tit. 12, § 146–1.6(a).
Courts have discretion to modify the definition of the proposed class. See Robidoux v.
Celani, 987 F.2d 931, 937 (2d Cir. 1993) (“A court is not bound by the class definition proposed
in the complaint and should not dismiss the action simply because the complaint seeks to define
the class too broadly.”); see also Madden v. Midland Funding, LLC, No. 11 Civ. 8149, 2017 WL
758518, at *13 (S.D.N.Y. Feb. 27, 2017). In this case, the Court will not alter the class
definition to encompass only tipped workers for Plaintiff’s overtime and spread of hours claims
because Plaintiff fails to show numerosity for any such class.
“Rule 23(a)(1) does not mandate that joinder of all parties be impossible -- only that the
difficulty or inconvenience of joining all members of the class make use of the class action
appropriate.” Cent. States Se. & Sw. Areas Health and Welfare Fund v. Merck-Medco Managed
Care, L.L.C., 504 F.3d 229, 244–45 (2d Cir. 2007). “[N]umerosity is presumed where a putative
class has forty or more members.” Shahriar v. Smith & Wollensky Rest. Grp., 659 F.3d 234, 252
(2d Cir. 2011). “However, the numerosity inquiry is not strictly mathematical but must take into
account the context of the particular case, in particular whether a class is superior to joinder
based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii)
the financial resources of class members, (iv) their ability to sue separately, and (v) requests for
injunctive relief that would involve future class members.” Pa. Pub. Sch. Emps.’ Ret. Sys. v.
Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014). “Courts will generally decline to
certify classes comprising fewer than approximately 25 members absent extraordinary
circumstances.” Joseph M. McLauglin, McLaughlin on Class Actions § 4:5 (13th ed., 2016); see
Novella v. Westchester Cty., 443 F. Supp. 2d 540, 546 (S.D.N.Y. 2006) (“When classes of fewer
[than] 25 members have been certified, courts almost always have cited special circumstances
warranting certification despite the small class size.”), vac’d on other grounds, 661 F.3d 128 (2d
In support of his assertion of numerosity, Plaintiff adduces a list of employees
Defendants produced in connection with the Burgos litigation, which Defendant Kim attests
contains all present and former Gun Gang employees as of January 2016. This list shows a total
of 12 tipped employees, including Aveek who was a delivery driver before being promoted. The
list does not include Plaintiff and several of the delivery persons he identifies in his affidavit.
Defendant Kim testifies that “a few” employees started working for Gum Gang since January
On this record, Plaintiff has shown the number of tipped employees is approximately 15
to 20 employees. In light of the small class size, Plaintiff has failed to prove that numerosity is
satisfied. There is no evidence that the putative class is geographically diverse. More
importantly, Plaintiff fails to cite any evidence to support his assertions about special
characteristics of the putative class members that, if true, would weigh in favor of finding joinder
impracticable, such as Plaintiff’s claim that they are largely immigrant laborers who are currently
employed by Defendants and fear immigration consequences if they opt into the suit to bring
FLSA claims. See, e.g., Gortat v. Capala Bros., No. 07 Civ. 3629, 2012 WL 1116495, at *3
(E.D.N.Y. Apr. 3, 2012), aff’d, 568 F. App’x 78 (2d Cir. 2014) (summary order). Despite having
sought certification of a subclass of tipped workers only, Plaintiff’s submission fails to address
why numerosity is met for this subclass. Absent competent evidence, Plaintiff has not shown
that numerosity is satisfied even if the Court defined the class to include only tipped workers for
his overtime claim and spread of hours claim.
In sum, because Plaintiff has failed to carry his burden to show the requirements of Rule
23 have been met as to his overtime claim and spread of hours claim, his motion for class
certification on that basis is denied without prejudice to renewal.
Minimum Wage Claims – Tipped Employees Subclass
Plaintiff also seeks certification of a subclass of tipped workers based on alleged
minimum wage violations. As with the overtime and spread of hours claims, Plaintiff relies
exclusively on his affidavit, the three pages of timesheets and the single paystub. For the reasons
stated above, this evidence is insufficient to satisfy the numerosity, commonality or typicality
requirements. Plaintiff’s motion to certify a class based on a minimum wage violation is denied
without prejudice to renewal.
Wage and Hour Notices and Wage Statements
The class is certified as to Plaintiff’s claims regarding wage and hour notices and wage
statements violations, but the class definition is amended to include only non-exempt employees
who began work in or after March 2014, which is when Gum Gang first opened according to
Defendants’ unrebutted evidence. Plaintiff has adduced insufficient evidence regarding these
recordkeeping violations before March 2014.
Plaintiff has satisfied the numerosity requirement as to the later period. Aveek testified
that approximately 30 employees, not including managers, worked at the restaurant as of
November 2015. His estimate did not include individuals who may have stopped working there
by November 2015, such as Plaintiff, or began working thereafter. Plaintiff has thus shown the
likelihood that 40 or more individuals worked as non-exempt employees for Defendants between
March 2014 and through the filing of the Complaint in October 2016. Numerosity is presumed
based on 40 putative class members, Shahriar, 659 F.3d at 252, and Defendants have not
rebutted that presumption. Even if the class consisted of between 30 and 39 members for claims
regarding the wage and hour notices and wage statements, this number is sufficient to satisfy the
numerosity requirement because the amount each class member could expect to recover would
be relatively small in light of the statutory damages available for these claims and the caps
thereon. See N.Y. Lab. Law § 198(1-b), (1-d); see generally In re Am. Exp. Merchants’ Litig.,
667 F.3d 204, 214 (2d Cir. 2012) (“Supreme Court precedent recognizes that the class action
device is the only economically rational alternative when a large group of individuals or entities
has suffered an alleged wrong, but the damages due to any single individual or entity are too
small to justify bringing an individual action.”). For instance, the failure to provide a wage
notice at the time of hiring entitles a plaintiff to recover $50 “for each work week during which
the employer continually failed to give this notice, up to a maximum of $2,500.00 until February
26, 2015; and [$50] per workday up to a maximum of $5,000.00 thereafter.” Pineda v. Tokana
Cafe Bar Restorant Inc., No. 16 Civ. 1155, 2017 WL 1194242, at *4 (S.D.N.Y. Mar. 30, 2017).
The failure to provide a wage statement entitles plaintiff to recover $100 “for each work week
during which the employer failed to provide a pay stub, up to a maximum of $2,500.00, until
February 26, 2015; and [$250] per workday up to a maximum of $5,000.00 thereafter.” Id.
Commonality and typicality are also satisfied for these claims. Unlike with his overtime
claim and spread of hours claim, Plaintiff adduces sufficient evidence that there was a class-wide
policy of not providing accurate wage statements and wage and hour notices to the employees.
As to the wage statements, i.e., paystubs, Plaintiff attests he was never provided any paystubs
and Defendant Kim admitted that an individual who worked in the kitchen was not provided with
paystubs. Further, the paystub Plaintiff adduces does not contain the Defendant Gum Gang’s
phone number, the dates of work covered by that payment of wages or tip credits, as required by
New York law. See N.Y. Lab. Law § 195(3). Defendant Kim conceded that the paystub was the
same as that provided to other employees. Likewise, as to the wage and hour notices, the
testimony of both Plaintiff and Aveek indicate that they never received the wage and hour notice
upon hiring, and the single notice produced by Defendant does not include information such as
the employer name, address and phone number, regular pay day or other information required
under New Yok law. See id. § 195(1)(a).
Accordingly, commonality and typicality are satisfied as Plaintiff and each proposed
class member would assert substantively identical injuries resulting from a single, common
policy and will make similar legal arguments to prove Defendants’ liability at trial. See Masoud,
2017 WL 448955, at *6 (asserting commonality and typicality are met for claim for failure to
provide wage statements and notices under NYLL where the evidence indicates all individuals
were subject to the same class-wide system); Adkins v. Morgan Stanley, 307 F.R.D. 119, 138
(S.D.N.Y. 2015) (“The central feature for typicality is that plaintiffs assert that defendants
committed the same wrongful acts in the same manner, against members of the class, and the
court looks not at the plaintiffs’ behavior, but rather at the defendant’s actions.”).
Defendants do not directly dispute that they had a class-wide policy with respect to wage
and hour notices and wage statements. Rather, they argue that their wage notices or statements
contain all of the information required under NYLL and that Plaintiff merely asserts “nonsubstantive” deficiencies. However, this argument goes solely to the merits and does not defeat
class certification. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1047 (2016) (“When,
as here, the concern about the proposed class is not that it exhibits some fatal dissimilarity but,
rather, a fatal similarity -- [an alleged] failure of proof as to an element of the plaintiffs’ cause of
action -- courts should engage that question as a matter of summary judgment, not class
certification.” (internal quotation marks omitted)).
Plaintiff has also shown that he satisfies Rule 23(a)(4), which requires that “the
representative parties will fairly and adequately protect the interests of the class.” This prong
addresses “concerns about the competency of class counsel and conflicts of interest.” Wal-Mart,
564 U.S. at 349 n.5. To determine whether a named plaintiff will be adequate, courts must
consider whether “(1) plaintiff’s interests are antagonistic to the interest of other members of the
class and (2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.”
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000); accord
Balverde, 2017 WL 1954934, at *8. Here, as noted, Plaintiff claims are typical of the class, and
there is no evidence at this stage that his interests are antagonistic to the interest of other class
members. Because Plaintiff’s alleged injuries are identical in nature to theirs, his interests and
theirs are sufficiently aligned. See Spencer v. No Parking Today, Inc., No. 12 Civ. 6323, 2013
WL 1040052, at *22 (S.D.N.Y. Mar. 15, 2013) (finding plaintiff’s adequacy “bolstered” by the
conclusion that his claims satisfied the typicality requirement). Further, Plaintiff’s evidence
regarding his counsel’s experience litigating NYLL claims, including class actions, is sufficient
to show that they are qualified, experienced and able to conduct the litigation.
Plaintiff has also shown that, as Rule 23(b)(3) requires, “[common] questions of law or
fact predominate over any questions affecting only individual members.” See Johnson, 780 F.3d
at 137. “Rule 23(b)(3)’s predominance requirement is ‘more demanding than Rule 23(a).’” Id.
at 138. “Like . . . commonality . . . , a court examining predominance must assess (1) the
elements of the claims and defenses to be litigated; and (2) whether generalized evidence could
be offered to prove those elements on a class-wide basis or whether individualized proof will be
needed to establish each class member’s entitlement to relief.” Id. (internal quotation marks and
citation omitted). However, the court also must consider “whether the common issues can
profitably be tried on a classwide basis, or whether they will be overwhelmed by individual
issues.” Id. (internal quotation marks and citation omitted). For substantially the same reasons
discussed above respecting commonality, predominance is satisfied. Plaintiff has alleged, and
proffered evidence, that non-exempt workers employed by Gum Gang were subject to a
common, illegal policy of not receiving wage statements and wage and hour notices in
compliance with New York law. If Plaintiff prevails in showing the existence of a common
policy at trial, the individual class members likely will prevail on their respective claims against
Defendants. Defendants fail to make any argument addressing why predominance would not be
satisfied if the class was certified on these claims.
The superiority requirement also is satisfied. Rule 23(b)(3) requires that “a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” To
determine whether superiority is proven, courts consider
(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. Pro. 23(b)(3). Courts in the Second Circuit regularly find that superiority is
satisfied where, as here, “potential class members are aggrieved by the same policies, the
damages suffered are small relative to the expense and burden of individual litigation, and some
potential class members are currently employed by the defendants.” Fonseca v. Dircksen &
Talleyrand Inc., No. 13 Civ. 5124, 2015 WL 5813382, at *6 (S.D.N.Y. Sept. 28, 2015).
Plaintiff also has demonstrated ascertainability, which is “a requirement [in the Second
Circuit] that there be an identifiable class.” Balverde, 2017 WL 1954934, at *9 (internal
quotation marks omitted). “An identifiable class exists if its members can be ascertained by
reference to objective criteria.” Id. “In application, this means that it must be ‘administratively
feasible for a court to determine whether a particular individual is a member of the class [and
t]he Court must be able to make this determination without having to answer numerous
individualized fact-intensive questions.” Id. (alterations in original). Here, the proposed class
includes all individuals that worked as non-exempt employees since March 2014, and is
sufficiently definite such that “no subjective criteria is required to determine the class’ contours.”
Flores, 284 F.R.D. at 123. Rather, the class may “be ascertained by objective documentation,
such as Defendants’ employee payroll records and wage statements,” or testimonial evidence.
Id. For this reason, and because ascertainability is not disputed, this requirement is met. See
Balverde, 2017 WL 1954934, at *10 (“Defendants do not dispute that the class is sufficiently
ascertainable. The Court thus finds that Plaintiffs have satisfied this implied requirement.”).
Appointment of Class Counsel
Plaintiff’s counsel, the Lee Litigation Group, PLLC, is appointed to serve as class
counsel. When appointing class counsel, a court must consider:
(i) the work counsel has done in identifying or investigating potential claims in
the action; (ii) counsel's experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge
of the applicable law; and (iv) the resources that counsel will commit to
representing the class.
Fed. R. Civ. P. 23(g)(1)(A). Plaintiff’s counsel at the Lee Litigation Group, PLLC are
experienced litigators who have served as lead counsel in numerous wage and hour class and
collective actions within this Circuit. See, e.g., Canelas v. World Pizza, Inc., No. 14 Civ. 7748,
2017 WL 1233998, at *8 (S.D.N.Y. Mar. 31, 2017) (appointing the Lee Litigation Group, PLLC
as class counsel for NYLL claims); Riedel v. Acqua Ancien Bath N.Y. LLC, No. 14 Civ. 7238,
2016 WL 3144375, at *8 (S.D.N.Y. May 19, 2016) (same). Further, Plaintiff’s counsel is
responsible for identifying and investigating the claims in this action, and attest that they will
commit the necessary resources to the lawsuit. Plaintiff has shown that the appointment of Lee
Litigation Group, PLLC as class counsel is warranted.
For the foregoing reasons, Plaintiff’s motion for class certification is GRANTED in part
and DENIED in part. It is hereby ordered that:
(1) Plaintiff is appointed the class representative to sue on behalf of a class of all nonexempt persons employed by Defendants on or after March 1, 2014, for Defendants’ alleged
violations of the NYLL based on failure to provide proper wage and hour notices and failure to
provide proper wage statements.
(2) Lee Litigation Group, PLLC is appointed class counsel.
(3) By July 14, 2017, Plaintiff shall file any pre-motion letter in accordance with the
Court’s individual rules for any motion to renew the class certification motions denied without
prejudice herein. Defendants shall respond by July 21, 2017.
(4) By July 14, 2017, Defendant shall file any objections and proposed revisions to
Plaintiff’s proposed “Notice of Lawsuit” filed in connection with this motion, Docket Number
(4) A pre-motion conference and/or status conference will be held on July 26, 2017, at
The Clerk of Court is respectfully directed to close the motion at Docket Number 28.
Dated: June 28, 2017
New York, New York
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