Imbarrato et al v. Banta Management Services, Inc. et al
Filing
60
OPINION & ORDER re: 54 MOTION to Certify Class . filed by Patrick Imbarrato, Nick Praino. For the foregoing reasons, Plaintiffs' motion for conditional certification of the FLSA collective action, approval of the proposed not ices, and request for discovery is GRANTED in part and DENIED in part. The parties are directed to contact Magistrate Judge Judith C. McCarthy within 7 days of this Opinion & Order regarding production of discovery on an expedited basis. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 54. (Signed by Judge Nelson Stephen Roman on 4/25/2022) (ate)
Case 7:18-cv-05422-NSR-JCM Document 60 Filed 04/25/22 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PATRICK IMBARRATO and NICK PRAINO, on
behalf of themselves and all others similarly situated,
4/25/2022
Plaintiffs,
-againstBANTA MANAGEMENT SERVICES, INC.;
BANTA BWW MDT, LLC; BANTA BWW ON,
LLC; BANTA NINE MALL, LLC; BANTA BWW
NB, LLC; GEORGE BANTA, SR.; and GEORGE
BANTA, JR.,
Defendants.
No. 18-cv-5422 (NSR)
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
Plaintiffs Patrick Imbarrato and Nick Praino (collectively, “Plaintiffs”) bring this action,
on behalf of themselves and others similarly situated, against Defendants Banta Management
Services, Inc. (“Banta Management”), Banta BWW MDT, LLC (“BWW Middletown”), Banta
BWW ON, LLC (“BWW Oneonta”), Banta Nine Mall, LLC (“BWW Wappingers Falls”), Banta
BWW NB, LLC (“BWW Poughkeepsie” and together with Banta Management, BWW
Middletown, BWW Oneonta, and BWW Wappingers Falls,“ Corporate Defendants”), George E.
Banta, Sr., and George E. Banta, Jr. (all collectively, “Defendants”), asserting claims under the
Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). (ECF No. 1.)
On April 20, 2021, Plaintiffs filed a motion for conditional class certification, courtauthorized notice, and expedited discovery pursuant to FLSA. (ECF No. 54.) Defendants opposed
the motion. (ECF No. 57.) For the following reasons, Plaintiffs’ motion is GRANTED in part and
DENIED in part.
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BACKGROUND
Defendant Banta Management is a family-run real estate development and management
company based in Poughkeepsie, New York. (“Compl.,” ECF No. 1 ¶ 2.) Buffalo Wild Wings
(“BWW”) is a casual dining restaurant and sports bar franchise with locations across the United
States and other countries. (Id. ¶ 3.) Banta Management owns and operates three BWW franchises
in the state of New York: one in Middletown, one in Wappingers Falls, and one in Oneonta. (Id.)
Plaintiffs are former servers at the BWW in Middletown. (Id. ¶¶ 21, 27.) Plaintiff
Imbarrato worked at the BWW in Middleton from in or around August 2013 through February 8,
2018. (Id. ¶ 21.) Plaintiff Praino worked at the Middletown BWW from in or around May 2013
through November 2013 and from in or around December 2014 through February 2015. (Id. ¶ 27.)
Plaintiffs bring this action on behalf of themselves and other similarly situated tipped employees
who worked at BWW restaurants owned by Defendants from October 3, 2013, through the
present. 1 (Id. ¶ 113.)
Plaintiffs allege Defendants failed to provide them with proper minimum wages and
overtime wages under federal and state law. Throughout Plaintiffs’ employment, Defendants
applied a tip credit to the minimum wage rate paid to Plaintiffs. (Id. ¶¶ 129, 136.) However,
Plaintiffs allege they performed non-tip-producing side-work for more than 20% of the time
worked and/or two hours on a consistent basis, including pre-shift side-work, running side-work,
and closing side-work. (Id. ¶¶ 130, 137.) Defendants did not notify Plaintiffs of the tip credit
provisions of the FLSA or NYLL. (Id. ¶¶ 129, 136.) Furthermore, Defendants failed to pay
Plaintiff Imbarrato overtime wages when he worked over 40 hours per week, and failed to pay
The limitations period for Plaintiffs’ claims was extended based on a pre-litigation tolling agreement entered into by
the parties that tolled the statute of limitations on Plaintiffs’ FLSA and NYLL claims between July 28, 2016, and April
9, 2018. (Id. ¶ 113 n.12., Ex. C.)
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either Plaintiff spread-of-hours pay or call-in pay as required by the NYLL. (Id. ¶¶ 132–33, 138–
39.) Defendants also failed to furnish Plaintiffs with proper wage notices and wage statements
listing rates paid, gross wages, and tip allowance, as required by the NYLL. (Id. ¶¶ 134–35, 140–
41.)
In addition to suing Corporate Defendants, Plaintiffs seek to hold George Banta, Sr., the
founder and owner of BWW, and his son George Banta, Jr., the Vice President of Banta
Management, individually liable for violations of the FLSA and NYLL. (Id. ¶¶ 86, 100.) Plaintiffs
allege that Corporate Defendants, George Banta Sr., and George Banta Jr. jointly employed
Plaintiffs and are Plaintiffs’ employers under the FLSA and NYLL. (Id. ¶¶ 32–35.) Plaintiffs also
seek to hold the top ten shareholders of Banta Management jointly and severally liable for unpaid
wages pursuant to New York Business Corporation Law (“NY BCL”) § 630, and the top ten
members of the remaining Corporate Defendants jointly and severally liable for unpaid wages
pursuant to New York Limited Liability Company Law (“NY LLCL”) § 609. (Id. ¶¶ 44, 53, 62,
71, 80.)
On March 19, 2019, Defendants moved to partially dismiss the Complaint. (ECF No. 34.)
On March 20, 2020, this Court granted in part Defendants’ motion, dismissing Plaintiffs’ claim to
hold individua Defendants George E. Banta Sr. and George E. Banta Jr. liable under NY BCL §
630 or NY LLCL § 609(c) and Plaintiffs’ claim seeking damages for Defendants’ failure to provide
annual written wage notices pursuant to a prior version of NYLL § 195(a). (ECF No. 41.)
On April 20, 2021, Plaintiffs filed a motion for conditional class certification, courtauthorized notice, and expedited discovery pursuant to the FLSA. (ECF No. 54.) They seek to
conditionally certify a collective action on behalf of tipped employees who worked at any of
Defendants’ three franchised BWW restaurants and requests the Court to authorize notice to be
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sent to potential class members. (See “Pls. Mot.,” ECF No. 55.) Defendants oppose the motion.
(“Defs. Opp.,” ECF No. 57.) Plaintiffs filed a response in support of their motion. (“Pls. Reply,”
ECF No. 59.)
LEGAL STANDARD
The FLSA provides that “any one or more employees” may bring an action against an
employer “for and on behalf of himself or themselves and other employees similarly situated.” 29
U.S.C. § 216(b). To become parties to such an action, employees other than the named plaintiffs
must “opt in” by filing written consents in the court in which the action is brought. Id. “Although
they are not required to do so by the FLSA, district courts ‘have discretion, in appropriate cases,
to implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs’ of the pendency of the
action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d
537, 554 (2d Cir. 2010) (quoting Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
The Second Circuit has endorsed a two-step method to determine whether a case should
proceed as a collective action under FLSA. See Myers, 624 F.3d at 554. In the first step—
commonly known as “conditional certification”—the named plaintiffs must make a “‘modest
factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a common
policy or plan that violated the law,’” id. at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp.
249, 261 (S.D.N.Y. 1997)), at which point the court may send (or direct plaintiffs’ counsel to send)
a notice to potential opt-in plaintiffs. Id. At the second stage, which typically occurs after
discovery is completed, the court determines whether the plaintiffs who opted in are in fact
“similarly situated” to the named plaintiffs. Id. If not, the court may “de-certif[y]” the collective
and dismiss the opt-in plaintiffs’ claims without prejudice. Id.
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However, as the purpose of this first stage is “merely to determine whether ‘similarly
situated’ plaintiffs do in fact exist,” Prizmic v. Armour, Inc., No. 05-CV-2503(DLI)(MDG), 2006
WL 1662614, at *2 (E.D.N.Y. June 12, 2006), plaintiffs’ burden at the conditional certification
stage is “minimal.” Amador v. Morgan Stanley & Co. LLC, 2013 WL 494020, at *4 (S.D.N.Y.
Feb. 7, 2013). “Plaintiffs can meet this burden by showing that ‘there are other employees who
are similarly situated with respect to their job requirements and with regard to their pay
provisions.’” Fraticelli v. MSG Holdings, L.P., 2014 WL 1807105, at *1 (S.D.N.Y. May 7, 2014)
(quoting Myers, 624 F.3d at 555). Documents properly considered in this inquiry “include
plaintiffs’ ‘own pleadings, affidavits, declarations, or the affidavits and declarations of other
potential class members.’” Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 557–58
(S.D.N.Y. 2013) (quoting Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 661 (S.D.N.Y. 2013)).
These documents “must set forth ‘a defendant’s plan or scheme to not pay overtime compensation’
and must identify ‘by name similarly situated employees.’” Fernandez v. On Time Ready Mix,
Inc., 2014 WL 5252170, at *1 (E.D.N.Y. Oct. 4, 2014) (quoting Sobczak v. AWL Indus., Inc., 540
F. Supp. 2d 354, 362 (E.D.N.Y. 2007)). But “[i]n making this showing, ‘nothing more than
substantial allegations that the putative class members were together the victims of a single
decision, policy or plan’ is required.” Sexton v. Franklin First Fin., Ltd., 2009 WL 1706535, at
*3 (E.D.N.Y. June 16, 2009) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y.
2005)).
Consistent with the “minimal” burden of proof assigned to plaintiffs at the conditional
certification stage, the court “should not weigh the merits of the underlying claims,” Hamadou,
915 F. Supp. 2d at 662 (citing Lynch v. United Servs. Auto Ass’n, 491 F. Supp. 2d 357, 368
(S.D.N.Y. 2007)), and should not “resolve factual disputes, decide substantial issues going to the
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ultimate merits, or make credibility determinations.” Jackson v. Bloomberg, L.P., 298 F.R.D. 152,
158 (S.D.N.Y. 2014) (internal quotation marks omitted). Accordingly, where there is a conflict
between the parties as to the facts underlying plaintiffs’ wage-and-hour claims, the court should
treat plaintiffs’ attestations as true. See Cortes v. New Creators, Inc., 2015 WL 7076009, at *1 n.1
(S.D.N.Y. Nov. 12, 2015).
However, “[w]hile plaintiff's burden at this stage is modest, it is not non-existent.” Khan
v. Airport Mgmt. Servs. LLC, 2011 WL 5597371, at *5 (S.D.N.Y. Nov. 16, 2011). “The ‘modest
factual showing’ cannot be satisfied simply by ‘unsupported assertions.’” Myers, 624 F.3d at 555
(quoting Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991)).
“Conclusory allegations are not enough.” Morales v. Plantworks, Inc., 2006 WL 278154, at *3
(S.D.N.Y. Feb. 2, 2006) (quoting Wright, Miller & Kane, 7B Federal Practice and Procedure
§ 1807 (3d ed. 2002)).
DISCUSSION
Plaintiffs move for conditional class certification of a FLSA collective action on behalf of
tipped employees who worked at Defendants’ three franchised BWW restaurants. Plaintiffs allege
that they are restaurant servers and bartenders who were subject to Defendants’ common practice
of using employees paid sub-minimum, tip-credit hourly wages to perform improper or excess
amounts of non-tipped work. (Pls. Mot. at 1.) Plaintiffs allege that these policies and practices
were in effect at all three of the BWW restaurants—BWW Middleton, BWW Wippingers Falls,
and BWW Oneonta—operated by Defendants. (Id. at 2.) Plaintiffs ask the Court to authorize the
sending of notice by mail, email, and text message of the lawsuit to all tipped employees who
worked at any of Defendants’ BWW restaurants since September 26, 2013. (Id. at 15–16.)
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I.
Conditional Class Certification
Plaintiffs must make a “modest factual showing” sufficient to demonstrate that the named
Plaintiffs and proposed opt-in plaintiffs together were “victims of a common policy or plan that
violated the law.” Delaney, 261 F.R.D. at 58. The court must determine whether there is a “factual
nexus” between the named plaintiffs’ situation and the situation of other employees. Id. “The
standard for conditionally certifying a collective action is a lenient evidentiary standard.” Id.
(internal quotation marks omitted). While a modest factual showing cannot be satisfied by
unsupported assertions or conclusory allegations, it should “remain a low standard of proof
because the purpose of this first stage is merely to determine whether ‘similarly situated’ plaintiffs
do in fact exist.” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010); Jacob v. Duane Reade,
Inc., No. 11-CV-0160(JPO), 2012 WL 260230, at *4 (S.D.N.Y. Jan. 27, 2012).
Plaintiffs have met the minimal burden and made a modest factual showing for conditional
certification. The Court finds that Plaintiffs have made a preliminary showing that there are other
tipped employees who are similarly situated in their job requirements and pay provisions and who
are subject to Defendants’ compensation policies or practices that allegedly violate the FLSA.
Plaintiffs submitted multiple declarations of tipped employees from two of Defendants’ three
BWW restaurants in support of their claims. The Court disagrees with Defendants’ claims that the
declarations submitted by Plaintiffs are “cookie-cutter” and vague and conclusory. (Defs. Opp. at
10.) To the contrary, Plaintiffs’ declarations described the specific types of non-tip producing side
work tasks each employee was required to perform along with the length of time and time of day
during which they were required to perform such non-tipped work. (See ECF No. 56, Exhibits C–
F.) There is also adequate preliminary showing that the alleged practice was common among the
three BWW restaurants. Plaintiffs allege that Defendants maintain central control, oversight, and
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direction over Plaintiffs and tipped employees at all three BWW locations. (Compl. at 3.)
Plaintiffs offer a 2015 deposition of George Banta Jr. as evidence of Defendants’ overarching
control over the policies and management of the BWW locations. (“2015 Decl.,” ECF No. 1, Ex.
A.) Plaintiffs also submitted screenshots of Defendants’ company-wide website that contained
information relating to all the BWW businesses.
(ECF No. 56, Exhibit A.) Specifically,
Defendants’ website provided information on employment opportunities, including positions at
BWW restaurants. (Id.) Plaintiffs’ declarations also showed that the tipped employees received
terms, conditions, and policies that they must follow at BWW. (See ECF No. 56, Exhibits C–F.)
Altogether, the Court finds that Plaintiffs have made a “modest factual showing” that Plaintiffs
and potential class members were subject to a common policy or practice among the BWW
locations.
The Court declines to consider Defendants’ arguments on the merits of Plaintiffs’ FLSA
violation claims as inappropriate at this stage. The Second Circuit case law makes clear that in a
conditional certification analysis, Plaintiffs merely need to make a “modest factual showing” that
Plaintiffs and collective action members are together the victims of a common policy or scheme
and that the opt-in plaintiffs are similarly situated to the named plaintiffs. See Myers, 624 F.3d at
544. Defendants’ arguments that they did not violate the FLSA or that the types of side work tasks
varied among the three BWW locations go toward the merits of the FLSA claims. Defendants
have overlooked that the purpose of this first stage of conditional certification is “merely to
determine whether ‘similarly situated’ plaintiffs do in fact exist,” Prizmic, 2006 WL 1662614, at
*2, and that the Court “should not weigh the merits of the underlying claims,” Hamadou, 915 F.
Supp. 2d at 662 (citations omitted).
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Accordingly, the Court finds that Plaintiffs have met their low burden and GRANTS
conditional class certification.
II.
Notice To Be Provided To Collective Action Members
Because the Court determined that Plaintiffs met the modest factual showing requirement
and sufficiently demonstrated that the other tipped employees and named Plaintiffs are similarly
situated, the Court permits notice to be sent to the potential opt-in plaintiffs.
There is no specific guidance on the form that court-authorized notices should take, but
courts should consider the “overarching policies” of collective suits and should ensure that the
putative plaintiffs receive “accurate and timely notice concerning the pendency of the collective
action, so that they can make informed decisions about whether to participate.” Fasanelli v.
Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007); Gjurovich v. Emmanuel’s
Marketplace, Inc., 282 F. Supp. 2d 101, 105 (S.D.N.Y. 2003). With that in mind, the notice should
generally contain:
a description of some or all of the following: (1) the purpose of the notice; (2) the nature
of the lawsuit filed and the relief being sought; (3) the proposed class composition; (4) the
legal effect of joining the lawsuit; (5) the fact that the court has not taken any position
regarding the merits of the lawsuit; (6) how to join the lawsuit; (7) the purely voluntary
nature of the decision and the legal effect of not joining the lawsuit; (8) the prohibition
against retaliation; and (9) the relevant contact information for any inquiries.
Salomon v. Adderley Indus., Inc. 847 F. Supp. 2d 561, 566 (S.D.N.Y. 2012). Courts in this District
have also held that the notice should include a warning that opt-in plaintiffs may be required to
provide information, appear for deposition, or testify in court. Id. at 567.
a. Content of Notice
Plaintiffs request the Court to authorize notices to be sent to all tipped employees who work
or have worked at Defendants’ BWW locations since September 26, 2013. (Pls. Mot. at 15–16.)
Plaintiffs submitted a proposed notice and a proposed email and text message notice with their
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motion. (ECF No. 56, Exhibits G & H.) Plaintiffs then submitted a revised proposed notice that
incorporates changes to address Defendants’ concerns raised in their opposition. (“Revised
Proposed Notice,” ECF 59, Exhibit 1.) The Court finds the redlines within Plaintiffs’ Revised
Proposed Notice make moot the Defendants’ arguments regarding (i) the inconsistency in starting
dates within the notice, (ii) the starting sentence stating “Please mail this Consent form to the
Plaintiffs’ attorneys using the enclosed envelope.”; (iii) language regarding a court’s endorsement
of merits of the case, (iv) language informing recipients of the possibility being required to be
deposed or testified in court, and (v) informing recipients of their rights to their own counsel.
(Defs. Opp. at 18–19.) Accordingly, the Court will only address the remaining contentions by
Defendants as to the content of the notice.
First, Defendants objects to the inclusion of unpaid overtime wages as part of the
description for the collective action lawsuit. (Id. at 19.) Plaintiffs’ Complaint explicitly challenges
Defendants’ practices with respect to minimum wages, overtime pay, and other wages. (See
Compl. ¶¶ 42, 51, 60, 69, 78, 115, 148–151.) Accordingly, this Court finds the description of the
collective action as proposed in the Revised Proposed Notice to be accurate.
Second, Defendants argues that the proposed notice is prejudicial because it does not
include information that a recipient is under no obligation to return the consent form or to join the
suit. (Defs. Opp. at 19.) The Court disagrees and finds that the language within the Proposed
Notice make clear that this is a choice. Specifically, the Revised Proposed Notice states that “If
you choose to join the FLSA Collective, you have to read, sign, and promptly return the Consent
to Sue form at the end of this Notice” and “If you want to join the lawsuit, your consent for must
be post marked no later than . . .” (Revised Proposed Notice at 3–4 (emphasis added).) These
statements make clear that joining the suit and returning the form is a choice, not a requirement.
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Third, Defendants take issue with the proposed notice omitting the names of Defendants’
attorneys’ names and contact information. (Defs. Opp. at 19.) The Court agrees with Plaintiffs
that this information should not be included. See Hong v. Haiku @ WP Inc., No. 19 CIV. 5018
(NSR), 2022 WL 263575, at *11 (S.D.N.Y. Jan. 28, 2022) (finding inclusion of such information
risks inadvertent disclosure of material information between opt-in plaintiffs and defense counsel).
Fourth, Defendants asks for inclusion of guidance that opt-in plaintiffs have the right to be
represented by their own counsel. (Defs. Opp. at 19.) This guidance is already clearly provided
in paragraph 14 of the Revised Proposed Notice titled “Should I get my own lawyer?” (Revised
Proposed Notice at 4.)
b. Limitations Period and Equitable Tolling
Plaintiffs request a three-year notice period, noting that FLSA expressly permits a threeyear statute of limitations to remedy willful violations. (Pls. Mot. at 17.) Plaintiffs also request
the FLSA statute of limitations be equitably tolled until such time that Plaintiffs can send notice
to potential opt-in plaintiffs. (Id. at 19.) Defendants oppose equitable tolling and argue that a twoyear notice period rather than three-year is appropriate because there has been no support for a
claim of willful violation. (Defs. Opp. at 17.)
Where parties dispute the willfulness of the violations, courts typically apply the threeyear, rather than two-year, statute of limitations. See Yap v. Mooncake Foods, Inc., 146 F. Supp.
3d 552, 565 (S.D.N.Y. 2015); Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 369
(S.D.N.Y. 2007). But while the “statute of limitations for opt-in plaintiffs’ FLSA claims runs until
they actually join the lawsuit; it does not relate back to the filing of the named plaintiff’s
complaint.” Gaspar v. Pers. Touch Moving, Inc., No. 13-cv-8187 (AJN), 2014 WL 4593944, at
*7 (S.D.N.Y. Sept. 15, 2014) (citing 29 U.S.C. § 256(b) and Ouedraogo v. A–1 Int’l Courier Serv.,
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Inc., No. 12 Civ. 5651 (AJN), 2013 WL 3466810, at *4 n. 2 (S.D.N.Y. July 8, 2013)). However,
because “equitable tolling issues often arise as to individual opt-in plaintiffs[,] . . . courts frequently
permit notice to be keyed to the three-year period prior to the filing of the complaint, with the
understanding that challenges to the timeliness of individual plaintiffs’ actions will be entertained
at a later date.” Id. (citation and internal quotation marks omitted). Defendants “will not be
prejudiced by a potentially over-inclusive notice” by using the date of the complaint’s filing
because it would “increase the likelihood that more party plaintiffs with timely claims consent to
opt in, with the understanding that at the appropriate stage in the litigation, Defendants will have
an opportunity to argue that each plaintiff's claim is untimely because equitable tolling does not
apply.” Alvarado Balderramo v. Taxi Tours, Inc., No. 15 CV 2181, 2017 WL 2533508, at *6
(S.D.N.Y. June 9, 2017); accord Lopes v. Heso, Inc., No. 16CV6796MKBRML, 2017 WL
4863084, at *6 (E.D.N.Y. Oct. 27, 2017).
Here, there is a particularly strong basis for equitable tolling given the significant delay in
ruling on this motion. See Yap, 146 F. Supp. 3d at 565. Indeed, some courts in this district “have
found that the delay in ruling on a motion for conditional approval, coupled with the plaintiffs’
diligence and avoiding prejudice to potential plaintiffs, is enough to grant equitable tolling.”
Guzman v. Three Amigos SJL Inc., 117 F. Supp. 3d 516, 528 (S.D.N.Y. 2015) (citing Flood v.
Carlson Rests. Inc., No. 14 Civ. 2740 (AT), 2015 WL 260436, at *6 (S.D.N.Y. Jan. 20, 2015) and
McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012)).
Accordingly, the Court will allow a three-year notice period and will permit equitable
tolling until Plaintiffs send notice to opt-in plaintiffs.
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c. Methods of Notice
Plaintiffs request authorization for posting the notice in a conspicuous location at each of
Defendants’ BWW restaurants. (Pls. Mot. at 18.) Defendants object, claiming it is invasive of
Defendants’ rights, unduly burdensome, impractical, and ineffective. (Defs. Opp. at 21.) Courts
have found that posting the notice at a defendant’s physical locations is “a generally acceptable
form of distributing information related to such notices.” Hong, 2022 WL 263575, at *12; see
also Ni v. Red Tiger Dumpling House Inc., No. CV193269GRBAKT, 2020 WL 7078533, at *12
(E.D.N.Y. Nov. 30, 2020) (“Courts in the Second Circuit ‘regularly approve plaintiffs’ request to
post notices and consent forms in ‘non-public areas’ where potential collective members are likely
to congregate, such as clock-in stations or break rooms.’”). This Court is not otherwise convinced
by Defendants’ broad assertions that this method of notification is unduly burdensome,
impractical, or ineffective. (See Defs. Opp. at 21.) Accordingly, this Court approves Plaintiffs’
request for authorization to post the notice at Defendants’ three franchised BWW restaurants.
Plaintiffs also request for the notice to be disseminated by mail, email, and text message.
Defendants object to the use of email and text messages. (Defs. Opp. at 20.) Courts in this district
have often permitted more efficient means of providing notice than first class mail. See Hong,
2022 WL 263575, at *8 (collecting cases). Accordingly, this Court approves Plaintiffs’ request to
disseminate the notice by mail, email, and text message to potential opt-in plaintiffs.
For the foregoing reasons, the Court accepts (1) Plaintiffs’ Revised Proposed Notice (ECF
No. 59, Exhibit 1) as modified and authorizes the notice to be posted at Defendants’ three
franchised restaurants—BWW Middletown, BWW Wappingers Falls, and BWW Oneonta—and
to be sent by mail, and (2) Plaintiffs’ proposed text message notice and e-mail notice (ECF No.
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56, Exhibit H) to be sent by e-mail and text message to all tipped employees employed by
Defendants from September 26, 2013 to present.
III.
Discovery
Plaintiffs seek production of computer-readable lists of the names, last known addresses,
social security numbers, telephone numbers, email addresses, work locations, and dates of
employment of all persons employed by Defendants as tipped employees at their BWW restaurants
(Pls. Mot. at 18.) Defendants posit that only names and last known mailing addresses should be
disclosed due to privacy interests. (Defs. Opp. at 20.) As noted above, the Court permits Plaintiffs
to notify potential opt-in plaintiffs by email and text message and, as such, telephone numbers and
email addresses are needed for such notification methods.
Work locations and dates of
employment are also needed in order for Plaintiffs to notify the relevant individuals.
Plaintiffs specified their request for social security numbers are only for those individuals
whose consent forms are returned undeliverable and proposed entering into a confidentiality
agreement with Defendants regarding the use of the social security numbers. District courts have
been split over requests for the disclosure of social security numbers. Compare Patton v. Thomson
Corp., 364 F. Supp. 2d 263, 268 (E.D.N.Y. 2005) (approving disclosure) with Chowdhury v.
Duane Reade, Inc., 06 Civ. 2295(GEL), 2007 WL 2873929, at *6 (S.D.N.Y. Oct. 2, 2007) (denying
disclosure). The Court does not see the need for disclosure of the employees’ social security
numbers at this stage. If Plaintiffs find that a large number of notices are returned as undeliverable,
Plaintiffs may raise the issue for the Court to reconsider at that time.
Accordingly, the Court GRANTS Plaintiffs’ request for disclosure of information, but
DENIES with respect to the disclosure of social security numbers. Defendants shall produce the
names, last known addresses, telephone numbers, email addresses, work locations, and dates of
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