Brown v. Mustang Salley's Spirits and Grill, Inc. et al

Filing 48

DECISION AND ORDER DENYING Defendants' 37 Motion for Clarification and a Bond. Signed by William M. Skretny, Chief Judge on 11/20/2012. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTY BROWN, ALSO KNOWN AS
“LEAH,” individually and on behalf of herself
and all others similarly situated,
Plaintiffs,
v.

DECISION AND ORDER
12-CV-529S

MUSTANG SALLY’S SPIRITS AND GRILL,
INC., d/b/a/ Tiffany’s Cabaret & Steakhouse
and Tiffany’s Cabaret, DAVID SCRIVANI,
DOMINIC L. SCRIVANI, and JOHN DOEs 110,
Defendants.

I. INTRODUCTION
Plaintiff Christy Brown commenced this collective and putative class action pursuant
to the Federal Labor Standards Act (“FLSA”) and New York State Labor Law seeking
damages due to Defendants’ alleged failure to comply with these laws. Defendants now
move this Court for Clarification of the October 5, 2012 Decision and Order governing
Defendants’ communications with potential class members.

Defendants specifically

request: (1) clarification of the restraint on Defendants’ speech with potential class and optin plaintiffs; (2) clarification that the order is a preliminary injunction and not a temporary
restraining order; and (3) that the Court impose a bond pursuant to Rule 65 (c).

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II. DISCUSSION
Initially, although Plaintiff’s motion was denominated one for a temporary restraining
order or preliminary injunction, this Court expressly stated that the limited relief granted
was “a necessary and appropriate use of its discretion to supervise communications in
class and collective actions.” (October 5, 2012 Decision and Order at 10-11, Docket No.
34.) Thus, this is not a restraining order pursuant to Rule 65, but rather an order pursuant
to Federal Rule of Civil Procedure 23 (d) and 29 U.S.C. § 216(b). See Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 170-171, 110 S. Ct. 482, 107 L. Ed. 2d 480 (1989) (cited in
October 5, 2012 Decision and Order at 3-4). The Court’s discretion to issue an order
governing communications in class and collective actions, and the limitations to that
discretion, are discussed at length in the prior Decision and Order. Defendants have
offered no reason for this analysis to be reexamined at this time. Further, it was ordered
therein that:
•

Defendants themselves, as opposed to their counsel, are prohibited
from speaking with potential class action and opt in plaintiffs regarding
the litigation, including any counterclaims or possible tax implications
that might result, or using a third-party other than counsel to that end.
No limitation is placed on Defendants’ ability to speak with potential
plaintiffs regarding other matters.

•

Defense counsel is not prohibited from speaking with potential class
action and opt in plaintiffs on an individual basis regarding the action,
provided that counsel identify him- or herself as counsel for
Defendants in this litigation. Plaintiffs’ counsel, however, must be
given one-week’s notice and a preview copy of any written
communication to be sent by defense counsel to potential class action
and opt in plaintiffs which addresses Defendants’ counterclaims or
possible adverse tax implications. This will afford Plaintiffs an
opportunity to either object to any potentially, even if not intentionally,
misleading or coercive language therein, or to send their own
complementary communication to the potential plaintiffs.
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(October 5, 2012 Decision and Order at 10.)
Defendants contend that the above order is unworkable because defense counsel
“has no relationship or knowledge of [potential class members] which will make
communications futile and/or impossible to undertake without their client’s initial
interaction.” (Def’s Mem of Law at 2, Docket No. 37.) Accordingly, Defendants request that
they, as opposed to their attorneys, be permitted to inform potential class members “that
there is pending litigation and that [Defendants’] attorneys would like to speak with them
regarding such pending litigation.” (Id.) No argument is offered, however, as to why this
limited task could not be accomplished by an introductory letter from their attorneys
regarding themselves and the lawsuit, the contents of which Defendants can prepare with
counsel. Further, the futility Defendants complain of is unclear, inasmuch as the potential
class members are defined as “all dancers in New York who were suffered or permitted to
work for Defendants” since 2006. (Compl. ¶ 22.) Thus, the names and contact information
for these potential plaintiffs are a matter of Defendants’ records.
Defendants also assert that the prior order precludes them from “investigating [their]
defenses with past or present entertainers” by having themselves or their staff, instead of
their attorneys, “find information or knowledgeable, quality witnesses.” (Decl. of David
Scrivani ¶ 18, Docket No. 37.) No specific examples are offered of what potential
information is sought that could not be found in either Defendants’ own records or through
discovery. Further, it is unclear how their requested modification, that they be permitted
to inform potential class members about the existence of the litigation without comment on
the substance thereof (Scrivani Decl. ¶ 16; Def’s Mem of Law at 2), will alleviate this
alleged problem. Accordingly, the Court finds Defendants’ argument that the restriction in
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the prior Decision and Order will generate unforeseen, burdensome attorneys’ fees to be
speculative.
Finally, even considering the prior ruling a restraining order pursuant to Rule 65, this
Court has wide discretion in setting the amount of any security bond, including the authority
to determine that, under the circumstances, no security is required. Corning Inc. v. PicVue
Elecs, Ltd., 365 F.3d 156, 158 (2d Cir. 2004); Doctor's Assocs., Inc. v. Distajo, 107 F.3d
126, 136 (2d Cir. 1997), cert denied 522 U.S. 948 (1997). Further, “[a] district court need
not order security in respect of asserted economic damages that are ‘speculative at best.’”
Interlink Int’l Fin. Servs. v. Block, 145 F. Supp. 2d 312, 315 (S.D.N.Y. 2001) (quoting
Inflight Newspapers, Inc. v. Magazines In-Flight, LLC, 990 F. Supp. 119, 140 (E.D.N.Y.
1997)). As noted, Defendants’ arguments that they will incur substantial attorneys’ fees
as a result of the October 5, 2012 Decision and Order are conclusory and speculative, and
therefore insufficient to support a security bond requirement. See CJ Prods. LLC v.
Snuggly Plushez LLC, 809 F. Supp. 2d 127, 163 (E.D.N.Y. 2011) (party seeking security
bears burden of establishing rational basis for the amount requested); AB Electrolux v.
Bermil Indus. Corp., 481 F. Supp. 2d 325, 337 (S.D.N.Y. 2007) (same).

III. CONCLUSION
For the reasons stated above, Defendants’ Motion for Clarification and a Security
Bond is denied.

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IV. ORDERS
IT HEREBY IS ORDERED that Defendants’ Motion for Clarification and a Bond
(Docket No. 37) is DENIED.
SO ORDERED.
Dated: November 20, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge

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