The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Plaintiffs have sued their former employers Delgado Travel Agency, Delgado Travel Corp., and Casa de Cambio Delgado, Inc. ("Defendants"), a collection of travel agency and money wire businesses, for failure to pay overtime and spread of hours wages in violation of the Fair Labor Standards Act, 29 U.S.C. §201 et seq. ("FLSA") and the New York Labor Law §650 et seq. ("NYLL"). Plaintiffs move to certify a collective action under § 216 of the FLSA and a class action under Fed. R. Civ. P. 23(a) and (b)(3) for the NYLL claims. Defendants oppose the motion on the grounds that Plaintiffs have failed to show 1) that the named Plaintiffs are similarly situated with the putative class members; and 2) that the Plaintiffs fail to meet any of the class action requirements of FRCP 23. For the reasons outlined below, the Plaintiffs' motion is denied but may be renewed. Fully briefed motions are due within 60 days of the date hereof.
Plaintiffs allege that the Defendant corporations maintain travel agencies and currency exchange businesses in New York and other states. (First Am. Compl. ¶¶ 29-31 ("Compl.").) Most of the named Plaintiffs worked from Monday through Friday from 9:00 am to 8:30 pm; 9:00 am through 6:00 pm on Saturdays; and to 12:00 midnight during peak travel periods, approximately 20 days per year. (Compl. ¶¶ 33-36.) Plaintiffs also allege that Defendants caused Plaintiffs to be paid a weekly salary, rather than an hourly wage and based their raises, if any, on these weekly salaries. (Compl. ¶43.) Finally, Defendants allegedly deducted approximately $100 per day if any Plaintiff missed work for illness, emergency or personal reasons. (Compl. ¶ 44.)
A. Collective Action Certification -- FLSA § 216(b)
The FLSA permits employees to maintain an action "for and in behalf of . . . themselves and other employees similarly situated." 29 U.S.C. § 216(b). Put another way, the named Plaintiffs must be similarly situated to the proposed members of the class, and proposed class members must "opt in" and consent in writing to being a party to the action. Id. Courts have wide discretion here to grant certification, allow discovery and regulate notice. Morales v. Plantworks, Inc., 05cv2349, 2006 WL 278154, at *2 (S.D.N.Y. Feb. 2, 2006).
Though the FLSA does not define the standard for "similarly situated," courts in this Circuit require the Plaintiff to make only a "modest factual showing" that the plaintiff(s) and potential collective action members were victims of a common policy or plan that violated the law. Lynch v. United States Auto Ass'n, 491 F. Supp. 2d 357 (S.D.N.Y. 2007); Lee v. ABC Carpet & Home, 236 F.R.D. 193, 196 (S.D.N.Y. 2006). While this is a very liberal standard, conclusory allegations or lack of a nexus with the putative class will prevent the case from moving forward as a collective action. Morales, 2006 WL 278154, at *3.
B. Class Certification -- FRCP §§ 23(a) and (b)(3)
Plaintiffs bear the burden of proving that the putative class has satisfied all four prerequisites of Rule 23(a) and at least one of the requirements of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The Second Circuit recently rejected the liberal burden, i.e. "some showing," and now the district court must determine and resolve factual disputes relevant to each Rule 23 requirement. In re Initial Public Offering Sec. Litig., 471 F.3d 24, 40-43 (2d Cir. 2006).
The party seeking class certification under Rule 23(b)(3) must show that common questions of law or fact predominate and that a class action is a means superior to other methods to adjudicate the claims. Fed. R. Civ. P. 23(b)(3). Plaintiffs must also prove that an identifiable class exists from the outset of litigation, and that the representative plaintiffs be members of that class. Petrolito v. Arrow Financial Srvs., LLC, 221 F.R.D. 303, 307 (D. Conn. 2004) (citing Norman v. Conn. State Bd. of Parole, 458 F.2d 497 (2d Cir. 1972)).
Like the collective action, class certification decisions by their nature are conditional, and a court has the power to alter or modify the class description if subsequent events suggest that it is appropriate to do so. Catanzano by Catanzano v. Dowling, 847 F. Supp. 1070, 1078 (W.D.N.Y. 1994). District courts also have ample discretion to consider (or to decline to consider) a revised class certification motion after an initial denial. In re IPO Sec. Litig., 483 F.3d 70, 73 (2d Cir. 2007).
A. Collective Action FLSA ...