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Siler v. Landry's Seafood House-North Carolina, Inc.

United States District Court, S.D. New York.

June 30, 2014

HEATHER SILER & THERESA LEE, individually and on behalf of FLSA Collective Plaintiffs and the Class, Plaintiffs,


RONALD L. ELLIS, Magistrate Judge.


Plaintiffs Heather Siler ("Siler") and Theresa ("Lee") (collecti vely, "Plaintiffs") were employed as restaurant workers for Defendant Landry's Seafood House - North Carolina, Inc. ("Landry's"), which does business as Landry's Inc., which does business as Vic & Anthony's. On January 25, 2013, Plaintiffs commenced this action as a putative class action under Federal Rule of Civil Procedure 23 on behalf of themselves and others similarly situated against Landry's "and/or other entities affiliated or controlled by Landry's Seafood House" (collectively "Defendants"). (Compl. ¶ 1.) They claim that Defendants failed to pay minimum wages, improperly took a tip credit, improperly retained gratuities, and failed to properly issue pay stubs as required under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, 206, 216(b), and New York Labor Laws §§ 190, 633, and 650. (Id.)

Plaintiffs filed an Amended Complaint on May 28, 2013. On behalf of the proposed class, the Amended Complaint seeks damages for violations of the FLSA and New York Labor Law, liquidated damages, plus attorneys' fees and costs. (See Am. Compl. ¶¶ 47, 55, 60.) On September 10, 2013, United States District Judge Jesse Furman granted Plaintiffs' unopposed motion to conditionally certify the case as a collective action under the FLSA, stating:

The potential plaintiffs in this collective action shall consist of all individuals who worked for Vic & Anthony's, including but not limited to waiters, runners, busboys, bartenders, and captains, at any time from February 1, 2012 to the present, who received at least one hour's pay at a wage rate less than the minimum wage rate for non-tipped employees.

(Doc. No. 19.) On September 17, 2013, the Parties jointly submitted a proposed Notice of Lawsuit Form and Consent to Join Form. (Doc. No. 20.) Shortly thereafter, the Parties requested a settlement conference before a Magistrate Judge, and on October 3, 2013, the action was referred to the undersigned for settlement. (Doc. No. 25). On October 16, 2013, the Court held a settlement conference at which the Parties reached a resolution of the case. On November 5, 2013, the Parties consented to conduct all further proceedings before the undersigned. (Doc. No. 30.) On April 30, 2013, the Court held a Faimess Hearing. No written objections were filed and no one objected to the settlement at the Faimess Hearing.

Before the Court are motions for: (1) final approval of the settlement; and (2) approval of professional and administrative fees, reimbursement of expenses, and service awards.

Having considered the April 25, 2014 joint letter of the Parties requesting approval of the settlement, the supporting declaration of Plaintiffs' counsel Suzanne B. Leeds, the oral argument presented at the April 30, 2014 Faimess Hearing, and the complete record in this matter, for good cause shown,


The Court certifies the following class under Federal Rule of Civil Procedure 23(a) and (b)(3), for settlement purposes: all present and former persons employed as servers, runners, buspersons, bartenders, and/or any other customarily tipped employees employed at Vic & Anthony's restaurant, memorialized in the Settlement and Release Agreement ("Settlement Agreement") from February 1, 2012, to October 16, 2013.


Prior to the settlement conference, the Parties exchanged document discovery and independently performed audits of Defendants' records to determine if Defendants owed Plaintiffs any wages. (Joint Fairness Letter, April 25, 2014, Doc. No. 35 ("Joint Letter") at 2). At the October 16, 2013 settlement conference, the Parties reached a settlement totaling $62, 000.

On February 7, 2014, this Court entered an Order preliminarily approving the proposed settlement on behalf of the class (the "Class" or the "Class Members"), preliminarily certifying the settlement class under Federal Rule of Civil Procedure 23(e), preliminarily approving of Virginia & Anlbinder, LLP ("V&A"), as class counsel, and authorizing the Notice of Proposed Class Action Settlement ("Notice") and Claim Form and Release ("Claim Form") to the Class and FLSA claimants. (Doc. No. 32.) The Notice and Claim Form were mailed to all potential claimants at their last known addresses. (Decl. of Suzanne B. Leeds in Supp. of Final Approval of Settlement ("Leeds Decl.") ¶ 3.) Of the forty-four Notices sent, twenty-four individuals filed Claim Forms. (Leeds Decl. ¶ 4.) Pursuant to Federal Rule of Civil Procedure 23(e), the Court held a Fairness Hearing on April 30, 2014, at 10:00 a.m. to further discuss the terms of the settlement and to provide an opportunity for objections to be heard. No class members appeared, and no one objected to the settlement. (Id. at ¶ 5.)


A. Plaintiffs Satisfy the Requirements of Rule 23

1. Numerosity

Plaintiffs meet all of the requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b)(3). First, Plaintiffs satisfy Rule 23(a)(l)'s numerosity requirement. There are twenty-four Rule 23 Class Members, making joinder impracticable. There is "no 'magic number' for determining numerosity in class actions." Bruce v. Christian, 113 F.R.D. 554, 556 (S.D.N.Y.1986) (citing Ewh v. Monarch Wine Co., Inc., 73 F.R.D. 131, 132 (E.D.N.Y. 1977); Stoner v. Miller, 377 F.Supp. 177, 179 (E.D.N.Y. 1974)). "Generally speaking, courts will find that the numerosity' requirement has been satisfied when the class comprises 40 or more members and will find that it has not been satisfied when the class comprises 21 or fewer." Ansari v. N.Y. Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998)(citing Town of New Castle v. Yonkers Contracting Co., 131 F.R.D. 38, 40 (S.D.N.Y. 1990); 5 James Wm. Moore et al., Moore's Federal Practice, § 23.22[3][a] (3d ed. 1997)).

2. Commonality

Second, the class satisfies Rule 23(a)(2), the commonality requirement. The Class Members' grievances share common issues of fact and law, including whether Defendants failed to pay them minimum wages, tips, and gratuities for work performed at banquet events. See McMahon v. Olivier Cheng Catering Co., No. 08 Civ. 8713 (PGG), 2009 WL 653141, at *1 (S.D.N.Y. Dec. 29, 2009) (commonality satisfied where plaintiffs claimed that "Defendants misappropriated service charges' that customers believed were meant for Plaintiffs and failed to pay Plaintiffs an overtime premium").

3. Typicality and Adequacy of the Named Plaintiffs

Plaintiffs satisfy Rule 23(a)(3), typicality, because Siler and Lee's claims arose from the same factual and legal circumstances that form the bases of the Class Members' claims. See Morris v. Affinity Health Plan, Inc., 859 F.Supp.2d 611, 616 (S.D.N.Y. 2012). Plaintiffs satisfy the adequacy requirement of Rule 23(a)(4) because there is no evidence that Plaintiffs' interests are "antagonistic" to those of the other Class Members. Johnson v. Brennan, No. 10 Civ. 4712 (CM), 2011 WL 4357376, at *5 (S.D.N.Y. Sept. 16, 2011) (citing Toure v. Cent. Parking Sys. of N.Y, No. 05 Civ. 5237 (WHP), 2007 WL 2872455, at *7 (S.D.N.Y. Sept. 28, 2007)).

In addition, Plaintiffs' counsel, V&A, will adequately represent the interests of the Class Members, and Defendants do not challenge the abilities of Plaintiffs' counsel. Fed.R.Civ.P. 23(a)(4). Plaintiffs' counsel asserts that V&A "has significant experience prosecuting largescale wage and hour class and collective actions such as this one." (Leeds Decl. ¶ 11.) Courts have found the firm to be adequate class counsel in these types of cases. See Guzman v. VLM, No. 07 Civ. 1126 (JG) (RER) 2008 WL 597186, at *7 (E.D.N.Y. March 2, 2008) (finding V&A's "qualifications and expertise" "fully satisfactory"); Velez v. Alajik Cleaning Svc., Inc., No. 03 Civ. 8698 (SAS), 2005 WL 106895, at *5 (S.D.N.Y. Jan. 19, 2005) (finding that "class counsel are experienced commercial litigators who have successfully represented classes in numerous class actions and have considerable experience in labor law cases similar to the case at bar").

4. Requirements of Rule 23(b)(3)

Plaintiffs also satisfy Rule 23(b)(3). Plaintiffs' common factual allegations and a common legal theory that Defendants violated federal and state wage and hour laws by improperly taking a tip credit, improperly retaining gratuities, and failing to properly issue pay stubs - predominate over any factual or legal variations among class members. See Johnson, 2011 WL 4357376, at *6 (class members were "unified by common factual allegations - that all class members were subjected to the same allegedly unlawful tip appropriation ...

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