Qiu et al v. Shanghai Cuisine, Inc. et al

Filing 134

MEMO ENDORSEMENT on MOTION TO COMPEL PRODUCTION OF SUPPLEMENTAL COLLECTIVE LIST & TO AUTHORIZE NEWSPAPER AND ONLINE PUBLICATION OF COLLECTIVE NOTICE: terminating 132 Motion to Compel. ENDORSEMENT: A pre-motion conference will be held on January 28, 2022 at 11 a.m. The parties are directed to call [phone]; access code 3029857. Defendants are directed to file a written response by January 19, 2022. The Clerk of Court is respectfully directed to terminate the motion, Doc. 132. SO ORDERED. (Signed by Judge Edgardo Ramos on 1/13/2022) (ama)

TROY LAW, PLLC
ATTORNEYS / COUNSELORS AT LAW
Tel: [phone] [e-mail] Fax: [phone]
41-25 Kissena Boulevard, Suite 103, Flushing, NY 11355

See last page.

January 12, 2022
Via ECF
Edgardo Ramos
United States District Judge
Southern District of New York
40 Foley Square
New York, NY 10007
Re:

Motion to Compel Production of Supplemented Collective List &
To Authorize Newspaper and Online Publication of Collective Notice
Qiu v. Shanghai Cuisine, Inc., No. 18-cv-05448 (ER) (S.D.N.Y.)

Your Honor,
We represent the Plaintiffs in the above-captioned matter. We write respectfully to request
that the Court Order Defendants to supplement their deficient collective list to include collective
members’ contact information; and that the Court authorize newspaper and online publication of
an abbreviated collective notice at Defendants’ expense due to Defendants’ failure to comply with
the Court’s Order of October 25, 2021 by producing collective members’ contact information; and
Defendants’ failure to keep and maintain records from which such a list could be created.
I. Relevant Procedural History
The Court conditionally certified a collective in this matter on November 14, 2019. See
Dkt. No. 55. Defendants were to furnish collective members’ contact information on Plaintiffs by
November 22, 2019, but this was never done. See id.
Accordingly, on October 25, 2021, the Court Ordered Defendants to disclose collective
members’ contact information to Plaintiffs by November 8, 2021, so that notice could be
disseminated by November 22, 2021. See Dkt. No. 131.
Defendants have not complied with this order. On November 8, 2021, Defendants provided
a list of ten (10) collective members, of whom ten (10) were identified by position and work
location, four (4) were identified by approximate employment end date, and zero (0) were
identified by employment start date and, more crucially, address, telephone number, email address,
and social media handle. See Ex. 1 (Nov. 8, 2021 collective list); c.f. Dkt. No. 131 (setting forth
information to be provided).
Accordingly, we have been unable to disseminate the collective notice according to the
Court’s Order. Since November 8, 2021, we have attempted diligently but without success to
rectify the said deficiencies.
We emailed Defense counsel on November 15, 2021, asking Defendants to supplement the
collective list, for an affidavit certifying that the collective list contained all the information

Hons. Edgardo Ramos
January 12, 2022
Qiu v. Shanghai Cuisine, Inc., No. 18-cv-05448 (ER) (S.D.N.Y.)
Page 2 of 4
ordered to be provided that could be gleaned from Defendants’ records, and if no further
information could be found, for consent to online and newspaper publication of an abbreviated
form of the notice.
On November 23, 2021, Defendants provided the same collective list, unchanged except
that one collective member was identified by approximate employment start date and telephone
number, along with an affidavit of Chenwen Ho which admits that Defendants “have not kept
information of the previous employees.” See Exs. 2 (Nov. 23, 2021 collective list), 3 (Nov. 23,
2021 affidavit).
Accordingly, we emailed Defense counsel on November 23, 2021, again stating that the
collective list was deficient, that we self-evidently could not disseminate collective notice to the
collective members based on the information (or lack thereof) contained in it, and asking for
consent to publication in light of Defendants’ failure to keep records. Defendants emailed back
saying they would not consent to publication, but did not offer any other proposals as to how to
disseminate the collective notice, and seemed happy to profit from their own unlawful failure to
keep and maintain records. See 29 C.F.R. § 516.2; 12 N.Y.C.R.R. § 146-2.1.
On December 6, 2021, the counsel met and conferred by telephone. Defense counsel
represented to Plaintiff’s counsel that the collective list had been prepared without the aid of other
documents, but from the memories of Defendants and a third-party ex-manager. Defense counsel
refused to identify the third-party ex-manager pursuant to Rule 26. See Fed. R. Civ. P. 26(e).
Defense counsel further represented that the records could be in the possession of the buyer of
Shanghai Cuisine, but that no efforts were made to obtain them from the buyer on the grounds of
futility, because Defendants did not believe they could find the buyer. Nor were any efforts made
to obtain records from professional agents of the Defendants, including but not limited to
accountants. Finally, Defense counsel rejected publication of notice out of hand, despite Plaintiff’s
counsel highlighting to him a line of cases which provided for publication at Defendants’ expense
where Defendants had failed to keep records sufficient to create a collective list. See below.
II. Plaintiffs’ Proposed Remedies
For all the reasons stated above, Plaintiffs respectfully move this Court for leave to publish
the collective notice in the Chinese-language newspaper the “World Journal,” and online, at
Defendants’ expense. See Chen v. Shanghai Café Deluxe Inc et al, No. 16-cv-04790 (LAP)
(S.D.N.Y. May 11, 2017 and June 13, 2017) (“Defendant is directed to either produce the
employee list to Plaintiff or to publish a notice of pendency in a Chinese language newspaper, in
a form acceptable to Plaintiff and at Defendant’s expense”); Lin v. Joe Japanese Buffet Restaurant
Inc. et al, No. 17-cv-03435 (WFK) (SMG) (E.D.N.Y. Jan. 26, 2018) (“In light of defendants’
failure to maintain books and records identifying their employees and containing contact
information for them, plaintiff may publish an abbreviated Section 216(b) notice at defendant’s
[sic.] expense.”); Wang v. Happy Hot Hunan Restaurant, Inc. et al, No. 17-cv-0201 (RA) (JLC)
(S.D.N.Y. Apr. 23, 2018) (where “defendants have made an effort to produce the names and
addresses and have not been able to provide information with respect to the vast majority of the
collective,” Court directed notice to be posted at Defendants’ business as well as newspaper
2

Hons. Edgardo Ramos
January 12, 2022
Qiu v. Shanghai Cuisine, Inc., No. 18-cv-05448 (ER) (S.D.N.Y.)
Page 3 of 4
publication at defendants’ expense “[b]ecause the posting alone will not adequately notify
collective members who have left defendants’ employment.”) (emphasis added). Plaintiffs
proposed abbreviated notice, in English1 is attached as Exhibit 4.
If the Court agrees that the publication shall be at Defendants’ expense on two weekend
days and two weekdays per newspaper, while Plaintiffs agree that the publication expense will not
exceed five thousand dollars ($5,000.00). The proposed cap is based on the quote provided to Troy
Law by the newspapers in previous cases, and as such may be subject to inflation and price
increases:
Targeted Audience Newspaper
Mainstream, New New York Times
Yorkers

Price / Unit
Estimated Price
$65.00 per agent line, $4,550 per day * 4 days
in Business Section
= $18,200
x 70 lines

Mainstream, New New York Post
Yorkers
Chinese-American World Journal
immigrant
community

$1,993.93 for 1/4 page $1,993.93 * 4 =
$7,975.72
$750/ weekday for 1/4 $750 per day * 2 days +
page
$950 per day * 2 days =
$950/ weekend day for $3,400
1/4 page

Targeted
Audience

Social Media Group
Outlet

ChineseWebsite
American
community in
the Northeast

Number of Members
(as of July 15, 2019)

Dadi360.com

III. Conclusion
For the reasons set forth above, Plaintiffs respectfully request that this Court Order:
(1) Defendants to conduct a diligent search of all employee records in their, and their
agents’, possession, custody, and control, and within fifteen (15) days of an Order
granting this motion to serve an affidavit on Plaintiffs setting forth, in detail, all
efforts made;

1

In order to reduce costs, Plaintiffs shall provide a Chinese translation of the abbreviated notice once a form of
notice in English is approved by the Court.

3

Hons. Edgardo Ramos
January 12, 2022
Qiu v. Shanghai Cuisine, Inc., No. 18-cv-05448 (ER) (S.D.N.Y.)
Page 4 of 4
(2) Defendants to serve on Plaintiffs a supplemented collective list containing all
information Ordered on October 25, 2021 within fifteen (15) days of an Order
granting this motion;
(3) If Defendants are able in their supplemented collective list to provide more all listed
employees’ contact information, whether address, telephone number, or social
media handle, Plaintiffs to disseminate the collective notice, in the form already
approved by the Court, to Defendants by mail, text message, and social media
within thirty (30) days of an Order granting this motion; and
(4) If Defendants are unable in their supplemented collective list to provide all listed
employees’ contact information, whether address, telephone number, or social
media handle, that Plaintiffs be granted leave to publish an abbreviated collective
notice, in a form to be approved by the Court, by newspaper and online, at
Defendants’ expense (up to $5,000.00), within thirty (30) days of an Order granting
this motion.
We thank the Court for its attention to and consideration of this matter.
Respectfully submitted,
TROY LAW, PLLC
/s/ John Troy
John Troy
Attorney for Plaintiffs
cc: via ECF
all counsel of record
/gdasb

A pre-motion conference will be held on January 28,
2022 at 11 a.m. The parties are directed to call (877)
411-9748; access code 3029857. Defendants are
directed to file a written response by January 19, 2022.
The Clerk of Court is respectfully directed to terminate
the motion, Doc. 132.
SO ORDERED:
_____________________________
HON. EDGARDO RAMOS
UNITED STATES DISTRICT JUDGE

January 13, 2022

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