United States District Court, E.D. New York
MICHAEL SPAGNUOLI, KELLIE SHEA, and JOSEPH VESELAK, individually and on behalf of all other persons similarly situated, Plaintiffs,
LOUIE'S SEAFOOD RESTAURANT, LLC, and/or any other entities affiliated with, controlling, or controlled by LOUIE'S SEAFOOD RESTAURANT, LLC; MARTIN PICCONE; and MICHAEL GUINNANE, Defendants
For Plaintiffs: Jeffrey Kevin Brown, Esq., Brett R. Cohen, Esq., Michael Alexander Tompkins, Esq., Of Counsel, Leeds Brown Law PC, Carle Place, NY.
For Defendants: Austin R. Graff, Esq., Of Counsel, The Scher Law Firm LLP, Carle Place, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On September 3, 2013, the Plaintiffs Michael Spagnuoli (" Spagnuoli" ), Kellie Shea (" Shea" ) and Joseph Veselak (" Veselak," and collectively, the " Plaintiffs" ), individually and on behalf of all other persons similarly situated, commenced this action, by filing a Complaint against the Defendants Louie's Seafood Restaurant, LLC (" Louie's" ), and/or other entities affiliated with, controlling or controlled by Louie's; Martin Piccone (" Piccone" ); and Michael Guinnane (" Guinnane," and collectively, the " Defendants" ). The Plaintiffs assert causes of action pursuant to the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 207 and 216(b); New York Labor Law (" NYLL" ) § § 190 et seq., 663 and 650 et seq.; and 12 New York Codes, Rules and Regulations (" NYCRR" ) § § 146-1.4 and 1.6. In this regard, the Plaintiffs seek to recover unpaid overtime compensation and spread of hours compensation allegedly owed to them by the Defendants.
Presently before the Court is the Defendants motion to disqualify the Plaintiffs' Counsel, Leeds Brown LLC (" Leeds Brown" ), or in the alternative, to deny Leeds Brown class counsel status. For the reasons that follow, the motion is denied.
A. Underlying Facts
According to the Complaint, the Defendant Louie's is a domestic corporation organized and existing under the law of the State of New York. Louie's principal place of business is located in Port Washington,
New York, and it is engaged in the restaurant business. Its gross yearly sales are alleged to be greater than $500,000. At all relevant times, the Defendants Picone and Guinnane were officers, directors, president, vice president and/or owners of Louie's or related entities.
The named Plaintiffs are all residents of New York and are all former employees of the Defendants. In this regard, the Plaintiff Spagnuoli worked for the Defendants as a waiter from August of 2010 to August of 2011; the Plaintiff Shea worked for the Defendants as a bartender from an unspecified month in 2003 to April of 2012; and the Plaintiff Veselak worked for the Defendants as a waiter from April of 2010 to December of 2011. The potential class members in this case are also former employees of the Defendants.
The Plaintiffs allege that the Defendants failed to pay their employees overtime wages, at the rate of one and one half times the regular rate of pay, for all hours worked in excess of forty hours in any given week. They further allege that the Defendants failed to pay spread of hours compensation of one additional hour at the regular hourly wage rate for days worked in excess of ten hours.
For example, according to the Plaintiffs, Spagnuoli worked six days per week, for approximately seventy to ninety-six hours per week, including between fifteen to sixteen hours per day. He was paid $4.60 to $5.00 per hour plus tips and alleges that he was only compensated for forty hours of work per week. He claims that he was not paid overtime at time and one-half his regular hourly wage for those hours over the forty hours that he worked, nor was he paid spread of hours compensation for the days that he worked more than ten hours.
Similarly, Shea and Veselak worked five to six days per week, ten to twelve hours a day, for a total of fifty to seventy hours per week. Their salaries were $5.00 per hour plus tips. According to the Plaintiffs, Shea and Veselak were not paid overtime at time and one-half their regular hourly wage for all the hours they worked over forty hours per week. In addition, they contend that they did not receive spread of hours compensation for those days they worked more than ten hours.
The Plaintiffs allege that the Defendants " willfully disregarded and purposefully evaded recordkeeping requirements of the FLSA and applicable New York State law by failing to maintain and complete timesheets or payroll records." (Compl., ¶ 54.) Moreover, they claim that " [t]he Named Plaintiffs and putative class were all subject to [the] Defendants' policies and willful practices of (1) failing to pay overtime wages, at the rate of one and one half times the regular rate of pay, for all hours worked in excess of 40 hours in any given week; and (2) failing to pay spread of hours compensation." (Compl., ¶ 18.)
B. The Mendez Action
On June 27, 2012, Oscar Mendez (" Mendez" ), individually and on behalf of all other persons similarly situated, commenced a class action lawsuit, Mendez v. Louie's Seafood Restaurant, LLC, et al., Case No. 12-CV-3202 (the " Mendez Action" ), against the same Defendants that are named in the present action. Mendez was represented by Leeds Brown and, like the Plaintiffs here, brought claims pursuant to the FLSA, NYLL and NYCRR to recover unpaid overtime compensation and spread of hours compensation allegedly owed to him by the Defendants. The Mendez Action was assigned to United States District Judge Joanna Seybert and United States Magistrate Judge A. Kathleen Tomlinson.
Discovery was never formally conducted in the Mendez Action. On December 21,
Mendez and the Defendants entered into a fully executed settlement agreement (the " Settlement Agreement" ). In relevant part, the Settlement Agreement contained a " No Solicitation or Current Representation" provision, which stated as follows:
[Mendez's] attorneys in this matter, Leeds Brown [ ], represent and warrant that neither the firm nor any attorneys affiliated with the firm (individually, together, or in conjunction with other attorneys) represent any other employee or former employee of the [Defendants] in ...