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Siddiky v. Union Square Hospitality Group, LLC

United States District Court, S.D. New York

May 17, 2017

UZZOL SIDDIKY and KAWSAR A. MARUF, on behalf of themselves and on behalf of other similarly- ituatec individuals, Plaintiffs,

          Jeanne-Marie B. Christensen, Esq. Elizabeth J. Chen, Esq. Tanvir H. Rahman, Esq. Wigdor LLP.

          Carolyn D. Richmond, Esq. Glenn S. Grindlinger, Esq. Gregg M. Kligman, Esq. Jason B. Jendrewski, Esq. Fox Rothschild, LLP.



         This is a wage-and-hour case brought pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq. and New York Labor Law ("NYLL"). The plaintiffs have filed two unopposed motions. The first seeks class certification, approval of a class settlement, and approval of enhancement awards for specific plaintiffs. The second requests approval of attorneys' fees and expenses.[1]


         Uzzol Siddiky and Kawsar A. Maruf filed this action on December 11, 2015 against Gramercy Tavern, a New York City restaurant, alleging claims of minimum wage violations under the FLSA and unlawful retention of employee gratuities in violation of NYLL § 196-d. (Complaint (“Compl.”), ¶¶ 2-3, 17-31). The plaintiffs brought the case as a putative class and collective action on behalf of all service employees who worked at Gramercy Tavern between June 23, 2011, and September 15, 2016. (Compl., ¶¶ 4-5, 32-57). After the defendants consented to conditional certification of an FLSA collective action, notice was sent to putative members of the collective, and Syed A. Tahir, Andy Gomez, Luis Rosario, Hanuman Welch, and Diana Arnold opted in. (Declaration of Jeanne M. Christensen dated March 23, 2017, Docket no. 54 (“Christensen Decl.”), ¶¶ 20-24).

         The parties then engaged in targeted discovery that involved the production of more than 12, 000 pages of documents. (Christensen Decl., ¶ 30). These included complete payroll and time records for the named plaintiffs and the opt-in plaintiffs; a sampling of payroll and time records and tip sheets for the class members; contracts, invoices, and receipts for private events over a four-year period; and lists of class members indicating their job titles, dates of employment, and hours worked per year. (Christensen Decl., ¶ 32).

         On September 15, 2016, the parties attended a day-long mediation session with Carol A. Wittenberg, an experienced labor and employment mediator at JAMS Inc. (Christensen Decl., ¶ 25). At the conclusion of that process, they agreed to the framework for a resolution of the action and executed a Memorandum of Understanding. (Christensen Decl., ¶¶ 25-26). Subsequently, the details of the agreement were memorialized in a Settlement Agreement and Release. (Christensen Decl., ¶ 26).

         Settlement Terms

         Pursuant to the terms of the settlement, the defendants agreed to create a Settlement Fund of $695, 000.00. (Settlement Agreement and Release (“Settlement Agreement”), attached as Exh. 1 to Christensen Decl., §§ 2.26, 4.1(H)-(I)). The net amount of that fund after deducting attorneys' fees, costs, administrative fees, and enhancement awards, would then be allocated among class members based on a point system derived from the number of hours that they worked during the class period. (Settlement Agreement § 4.1(A)-(D)). Under the Settlement Agreement, plaintiffs' counsel could apply to the court for an award of attorneys' fees of up to $231, 666.67, or one-third of the Settlement Fund, together with costs of up to $5, 000.00. (Settlement Agreement, § 4.2). Similarly, the plaintiffs could seek enhancement awards of $7, 000.00 for Mr. Siddiky; $6, 000.00 each for Mr. Maruf and Mr. Tahir; and $1, 000.00 each for Mr. Gomez, Mr. Rosario, Mr. Welch, and Ms. Arnold. (Settlement Agreement, § 4.1(G)). After payment of expenses and distribution of the net Settlement Fund to class members, any funds remaining as a result, for example, of unclaimed settlement checks, would be paid to City Harvest, a charitable organization. (Settlement Agreement, § 4.1(E)).


         A. Class Certification

         The parties seek certification of a settlement class of all persons who worked as a tipped “captains, ” “servers, ” “bartenders, ” “bussers/backwaiters, ” “food runners, ” or “coffee runners” at Gramercy Tavern during the period from June 23, 2011, through September 15, 2016. (Settlement Agreement, §§ 2.4, 2.23).

         In order to be certified, a proposed class must generally meet all of the standards of Rule 23(a) and then satisfy the requirements of one of the three categories in Rule 23(b).

         1. Rule 23(a)

         As set forth in Rule 23(a), the prerequisites for any class action are that:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

         a. Numerosity

         Numerosity is presumed where the proposed class includes more than 40 members. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Shepard v. Rhea, No. 12 Civ. 7220, 2014 WL 5801415, at *4 (S.D.N.Y. Nov. 7, 2014). Here, the numerosity requirement is satisfied because there are approximately 220 class members. (Declaration of Abigail Schwartz dated March 22, 2017, attached as Exh. 6 to Christensen Decl., ¶ 7).

         b. Commonality

         “[A]n issue is common to the class when it is susceptible to generalized, class-wide proof.” In re Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). Accordingly, a court must determine whether the class members' claims “will in fact depend on the answers to common questions, ” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 356 (2011), and whether a class action is likely to “generate common answers apt to drive the resolution of the litigation, ” id. at 350 (emphasis omitted) (quoting Richard A. Nagarato, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). In this case, there are plainly common issues concerning whether the defendants unlawfully applied a minimum wage tip credit by including ineligible employees in the tip pool and distributing gratuities to them.

         c. Typicality

         “Typicality requires that the claims or defenses of the class representatives be typical of the claims and defenses of the class members. This requirement ‘is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.'” Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) (internal citation omitted) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)). “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993). The claims of the named plaintiffs are typical of those of the class members in this action because the defendants applied the same wage and tip policies to all tipped employees.

         d. Adequacy of Representation

         Finally, “adequacy of representation entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52, 60 (2d Cir. 2000). Here, the interests of the named plaintiffs and opt-in plaintiffs align with those of all class members. Furthermore, plaintiffs' counsel, Wigdor LLP (“Wigdor” or “Class Counsel”), have vast experience in litigating employment cases, including wage and hour claims.

         2. Rule 23(b)

         The plaintiffs here propose certification of a damages class under Rule 23(b)(3). Certification under Rule 23(b)(3) requires that common questions “predominate over any questions affecting only individual members, ” and class resolution must be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). In assessing the predominance and superiority of class treatment, courts must consider:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a ...

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