United States District Court, S.D. New York
UZZOL SIDDIKY and KAWSAR A. MARUF, on behalf of themselves and on behalf of other similarly- ituatec individuals, Plaintiffs,
UNION SQUARE HOSPITALITY GROUP, LLC, GRAMERCY TAVERN CORP., and GT OPERATING COMPANY, LLC, Defendants.
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.
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
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
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.”),
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.,
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).
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, §
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).
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).
forth in Rule 23(a), the prerequisites for any class action
(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.
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).
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.
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.
Adequacy of Representation
“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.
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
(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 ...