HERZFELD v. 1416 CHANCELLOR, INC. et al

Filing 106

ORDER THAT PLAINTIFF'S MOTION TO CONDITIONALLY CERTIFY A FAIR LABOR STANDARDS ACT COLLECTIVE ACTION AND PLIANTIFF'S MOTION TO CERTIFY CLASS UNDER RULE 23 ARE GRANTED IN PART AND DENIED IN PART. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/9/17. 6/9/17 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JESSICA HERZFELD, on behalf of
herself and all others similarly situated

CIVIL ACTION

v.
NO. 14-4966
1416 CHANCELLOR, INC. d/b/a THE
GOLD CLUB, and DOES 1 through 10,
inclusive and THE APM CLUB, INC.
d/b/a THE GOLD CLUB

ORDER
AND NOW, this

9th

day of June 2017, following discovery on conditional certification

and class certification (ECF Doc. Nos. 68), considering Plaintiffs Motion to conditionally
certify a Fair Labor Standards Act collective action (ECF Doc. No. 98), Plaintiffs Motion to
certify a class action under Rule 23 (ECF Doc. No. 97), Defendant's Response to both Motions
(ECF Doc. No. 102) and for reasons more fully described in the accompanying Memorandum, it
is ORDERED Plaintiff's Motions (ECF Doc. Nos. 97, 98) are GRANTED in part and
DENIED in part upon our findings:
I.

We conditionally certify a collective action under the Fair Labor Standards Act for
conduct on or before January 24, 2016.
1.

We GRANT Plaintiffs Motion to conditionally certify this action to proceed as a

collective action (ECF Doc. No. 98) against 1416 Chancellor and APM Club, as successor, under
the Fair Labor Standards Act on behalf of:
All Dancers of the Gold Club in Philadelphia, Pennsylvania at any time from
August 26, 2011 until January 24, 2016.
2.

Collective Findings. Plaintiff makes a modest factual showing the dancers are

"similarly situated." Plaintiff adduced evidence 1416 Chancellor misclassified all dancers as

independent contractors in the same manner. Plaintiff adduced evidence 1416 Chancellor uses
the same fee schedule, tip-out requirements, rules, and regulations for all dancers. This evidence
is sufficient to satisfy our first-tier review of Plaintiff's "modest factual showing" all dancers are
"similarly situated" for purposes of 1416 Chancellor's misclassification of the dancers as
independent contractors.
3.

Draft Notice to the collective. Plaintiff shall circulate a draft court-facilitated

notice and protocol to Defendants no later than June 16, 2017, Defendants shall comment upon
the draft and protocol to Plaintiff by June 21, 2017, and Plaintiff shall move for approval of her
proposed Court-facilitated notice with a memorandum not exceeding ten (10) pages and
identifying all areas of disagreement on the notice in an attached black-lined version of the
proposed Notice on or before June 27, 2017. Defendants may file memoranda not exceeding ten
(10) pages explaining its dispute with the proposed protocol or proposed black-lined notice on or
before July 6, 2017.
II.

We deny certification for a collective action under the Fair Labor Standards Act for
conduct on or after January 25, 2016.

4.

We DENY Plaintiffs request to certify a collective action (ECF Doc. No. 98) on

or after January 25, 2016 when APM Club purchased the club. Plaintiff did not dance at the
Gold Club during APM Club's ownership and lacks standing to bring a claim because she cannot
plead a personalized injury she suffered caused by APM Club's conduct.

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III.

We certify a Rule 23(b)(3) class action under Pennsylvania's Minimum Wage Act,
Pennsylvania's Wage Payment and Collection Law, and unjust enrichment cause of
action for conduct on or before January 24, 2016.
5.

We GRANT Plaintiffs Motion to certify (ECF Doc. No. 97) the Pennsylvania

claims 1416 Chancellor and APM Club, as successor: (1) violated Pennsylvania's Minimum
Wage Act by improperly classifying her as an independent contractor failing to pay minimum
wage and overtime; (2) violated Pennsylvania's Wage Payment and Collection Law by taking
her tips to cover its business expenses; and, (3) she unjustly enriched 1416 Chancellor by
remitting her tips and working promotional events without pay under Fed. R. Civ. P. 23 on
behalf of the defined "Class":
All former Dancers of the Gold Club in Philadelphia, Pennsylvania at any
time from August 26, 2011 until January 24, 2016.
6.

Class Findings. As more fully detailed in the accompanying Memorandum, we

find Fed. R. Civ. P. 23(a) and (b)(3) requirements are amply satisfied:
a.

Numerosity. The Class is sufficiently numerous with at least 100

b.

Commonality. The Class has commonality because the 1416 Chancellor

members;

used standardized documents to classify its dancers as independent contractors and used the
same fee structure, dance fees, and tip-out policies for all class members;
c.

Typicality.

Plaintiffs claim is typical of the Class because 1416

Chancellor misclassified all members as independent contractors in the same manner. 1416
Chancellor also raises the same defenses of proper classification as independent contractor for all
dancers;
d.

Adequacy of Representation. Plaintiff is an adequate representative of

the Class because she shares the same claims as the Class and has no antagonistic interests to the

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Class. Jamisen A. Etzel, Esquire and Gary F. Lynch, Esquire and the law firm Carlson Lynch
Sweet Kilpela & Carpenter are qualified, experienced, and able to conduct this litigation.
e.

Predominance. Plaintiff and the Class share the predominate cause of

action alleging 1416 Chancellor: (1) violated Pennsylvania's Minimum Wage Act by
misclassifying her as an independent contractor and failing to pay minimum wage and overtime;
(2) violated Pennsylvania's Wage Payment and Collection Law by taking her tips to cover its
business expenses; and, (3) was unjustly enriched by taking her tips and forcing her to work
promotional events without pay; and,
f.

Superiority. A class action is the superior method for adjudication for the

Class' minimum wage claims because of the small size of individual recoveries and the brief
period of time some class members worked for 1416 Chancellor at the Gold Club.
7.

Class Representative. Jessica Herzfeld is an adequate representative of the

Class and we certify her as the Class representative.
8.

Class Counsel. Lead Plaintiffs counsel firm Carlson Lynch Sweet Kilpela &

Carpenter, LLP is authorized to act on behalf of the Class with respect to all actions required by,
or necessary to be taken under, the Rules of Civil Procedure and this Court's Orders and Policies.
9.

Notice to the Class. Class Counsel shall circulate a draft court-approved notice

and notice protocol compliant with Fed. R. Civ. P. 23(c)(2)(B) to Defend\}nts no later than June
16, 2017, Defendants shall comment upon the draft and protocol to Plaintiff by June 21, 2017,
and Plaintiff shall move for approval of the proposed Court-facilitated notice with a
memorandum not exceeding ten (10) pages and identifying all areas of disagreement on the
notice in an attached black-lined version of the proposed Notice on or before June 27, 2017.

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Defendants may file memoranda not exceeding ten (10) pages explaining their dispute with the
proposed protocol or proposed black-lined notice on or before July 6, 2017.

IV.

We deny certification of a Rule 23(b)(3) class action under Pennsylvania's Minimum
Wage Act, Pennsylvania's Wage Payment and Collection Law, and unjust
enrichment cause of action for conduct on or after January 25, 2016.
10.

We DENY Plaintiffs request to certify a class action (ECF Doc. No. 97) against

APM Club for conduct on or after January 25, 2016. Plaintiff did not dance at the Gold Club
during APM Club's ownership and she lacks standing to bring a claim for conduct on or after
January 25, 2016 because she cannot plead a personalized injury caused by APM Club's
conduct.

~J.

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