The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Plaintiff Jack Jenkins filed a putative collective action suit against The TJX Companies Inc. ("TJX") and HomeGoods, Inc. ("HomeGoods") under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") and the New York State Labor Law ("N.Y. Labor Law"), to recover unpaid overtime compensation. Presently before the Court are the following three motions: (1) the Plaintiff's motion for conditional certification of the class for the collective action and to facilitate notice under 29 U.S.C. § 216(b); (2) the Plaintiff's motion to strike affidavits submitted by the Defendants in opposition to its motion for conditional certification; and (3) the Defendants' cross-motion for attorney's fees and costs based on the Plaintiff's motion to strike.
For the reasons set forth below, the Court: (1) denies the Plaintiff's motion for conditional certification; (2) denies the Plaintiff's motion to strike as moot; and (3) denies the Defendants' cross-motion for attorneys fees and costs.
The Plaintiff is an employee who worked for TJX and HomeGoods (collectively "the Defendants"). Beginning in February 2006, the Plaintiff was an Assistant Store Manager ("ASM") employed at HomeGoods' Rockville Centre location. In or about September 2008 (according to the Plaintiff) or sometime in 2007 (according to the Defendant) the Plaintiff was subsequently promoted to Store Manager ("SM") at HomeGoods' Port Washington location, where he was employed until July 2010.
On August 16, 2010, the Plaintiff commenced the present suit as a putative collective action against the Defendants. It is undisputed that the Defendants did not pay the Plaintiff overtime during his tenure as an ASM because the Defendants classify all ASMs as "exempt" from FLSA and N.Y. Labor Law overtime provisions. In his complaint, the Plaintiff alleges that the Defendants misclassified his position as "exempt" from FLSA and N.Y. Labor Law overtime provisions, and that all ASMs employed by HomeGoods were similarly mischaracterized in this manner.
One August 5, 2011, the Plaintiff moved to certify the collective action class to recover overtime pay under the FLSA and to facilitate notice under 29 U.S.C. § 216(b). The Plaintiff named as a class for the collective action "all persons employed by the Defendants, outside of California, as assistant store managers, three years from the date of the order to the present." (Pl. Mem. In Supp. at 15.) The Defendants oppose the conditional certification. On September 9, 2011, the Plaintiff moved to strike the declarations submitted as exhibits to the Defendants' opposition to the Plaintiff's Motion for Conditional Certification. On September 26, 2011, the Defendants made a cross motion for attorneys' fees and costs.
1. The FLSA and the Executive Exemption
The FLSA, states in relevant part, that no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed 29 U.S.C. § 207(a)(1). Employees who work in a "bona fide executive . capacity" are exempted from the FLSA's overtime requirements. 29 U.S.C. § 213(a)(1). Employees are classified as executive if: they are "[c]ompensated on a salary basis"; 2) their "primary duty is management of the enterprise ... or of a customarily recognized department or subdivision thereof"; 3) they "customarily and regularly direct[ ] the work of two or more other employees"; and 4) they "ha[ve] the authority to hire or fire other employees or" if their "suggestions and recommendations" on personnel decisions "are given particular weight.
Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir. 2010) (citing 29 C.F.R. § 541.100(a)(1)-(4)). The regulations list a non-exclusive set of characteristic management activities that can determine whether an employee's "primary duty is management." Id.
2. Collective Action under the FLSA
28 U.S.C. § 216(b) provides that parties suing for relief under 28 U.S.C. §§ 206, 207, and 215(a)(3) may proceed "for and in behalf of himself or themselves and other employees similarly situated." A proceeding under this provision is traditionally termed a "collective action." Here, the Plaintiff seeks relief pursuant to Section 207 of the FLSA, which ...