Preview
FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
----------------------------------------------------------x
EVELYN O’BRIEN, JAMIE LYNN
PATCHETT, CHRIS FORTNER, MICHAEL
PETTA, JESSICA TAYLOR-MACKRODT, and Index No. 65232/2018
HEATHER MARTIN on behalf of themselves
and others similarly situated, PLAINTIFFS’ MEMORANDUM IN
SUPPORT OF THEIR UNOBJECTED-
Plaintiffs, TO MOTION TO APPROVE
PROPOSED NOTICE TO CLASS
v. MEMBERS
SAGBOLT, LLC, OCEAN PROPERTIES, LTD.,
PORTSMOUTH CORPORATE FINANCIAL
SERVICES, INC., PATRICK WALSH, and
THOMAS GUAY
Defendants.
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On August 19, 2021, this Court issued an Order (the “Class Cert. Order”) certifying the
Class under CPLR Article 9, appointment of each of the named plaintiffs as a Class Representative,
and appointing of class counsel. Plaintiffs and the Class (“Plaintiffs”) respectfully incorporate
herein by reference the Class Cert. Order and their prior briefing requesting certification. Plaintiffs
now request that, pursuant to CPLR 904, the Court approve their proposed form of class notice
(the “Notice” a copy of which is attached hereto as Exhibit A). The parties’ counsel have
conferred, and Defendants’ counsel, though reserving all of their rights and remedies, have
authorized Plaintiffs to advise the Court that they have reviewed the Class Notice and the within
memorandum, and have no objection to the Court approving the Class Notice for the reasons stated
herein.
The Class Notice follows the form of exemplars issued by the Federal Judicial Center
(“FJC”) (www.fjc.gov). Congress established the FJC in 1967 at the recommendation of the
United States Judicial Conference to serve as an education and research agency. The U.S. Judicial
Branch's Advisory Committee on the Federal Rules Subcommittee on Class Actions tasked the
FJC with developing illustrative notices of proposed class action certifications and settlements.
To fulfill that task, the FJC engaged in a careful study of the use of plain language in legal
documents. After obtaining recommendations from an attorney holding a doctorate in linguistics,
and after conducting multiple rounds of focus groups, testing, and re-drafting to refine the notices
so that they were as accessible and comprehensible as possible to those reading them to provide
maximum comprehension for individuals reading the notice, the FJC finally posted and re-posted
its illustrative notices for use by courts and attorneys. See Exhibit B (FJC Employment
Discrimination Class Action-Full Notice).
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NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021
Thanks to this comprehensive research and analysis, the FJC's illustrative notices are the
recognized leading models for notice in class actions. See Spicer v. Pier Sixty, LLC, No. 08 Civ.
10240 (S.D.N.Y. 2010), ECF No. 58 (court approved notice similarly modeled after FJC in a class
and collective action where plaintiffs’ allegations included that their employer failed to distribute
the entire service charge to employees). See also Camesi v. Univ. of Pittsburgh Med. Ctr., 2009
U.S. Dist. LEXIS 56827, at *4-5 (W.D. Pa. July 1, 2009) (“The FJC’s model forms were developed
through extensive research, commentary, and non-lawyer testing to promote “the plain language
drafting” of class notice forms. The FJC's forms have been publicized “to demonstrate ways that
drafters can use clear, simple, ‘plain language’ and design in class action notices,” and, in actual
cases, attorneys and judges are encouraged to “adapt the illustrative notice[s] to the unique factual,
legal, and procedural circumstances of ] their case.”… The format and content of the FJC's model
notices facilitate the communication of complex legal issues in an easily readable and
understandable fashion.”)
Though developed in the federal court system, the same benefits apply to notice sent in
state court cases. Plaintiffs’ proposed notice is easy to read and written in plain English. It informs
Class members of their rights, including how, if they so elect, to opt out of the lawsuit so as to
avoid waiving their liquidated damages. Id. See Downing v. First Lenox Terrace Assoc., 107 A.D.
3d 86, 89 (1st Dept 2013) (plaintiffs may waive liquidated damages on behalf of class in order to
maintain a class action, provided “class members are allowed to opt out and pursue individual
actions.”).
The Notice also describes the legal effect of joining and not joining the suit and expressly
observes that this Court has not expressed any opinion regarding the merits of Plaintiffs’ claims or
Defendants’ liability. Furthermore, the Notice explains the procedure to opt-out in careful detail,
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NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021
using plain, easily understandable language. See “How do I ask to be excluded from this class
action lawsuit?” under the heading “WHO IS IN THE CLASS” (Exhibit A, at 4).
Plaintiffs propose that the notice be mailed first-class and/or emailed to all Class members.
To facilitate this notice, Defendants have agreed to disclose the names, last known addresses, and
last known email addresses of all potential Plaintiffs. Plaintiffs, in turn, have retained the services
of a highly experienced and competent claims administration firm, Arden Claims Services
(“ACS”). Additional information about ACS can be found at www.ardenclaims.com. ACS will
disseminate the class notice by email and regular mail, publish summary notice, conduct advance
address searching, issue requisite notices under the Class Action Fairness Act (CAFA, 28 U.S.C.
§1711), issue remails as necessary, send reminder postcards, and provide live operator support for
Class members who have questions. Defendants have agreed to produce a list of names and last
known addresses and other contact information for Class members during the Class Period.
The parties also have agreed that Defendants shall internally post the notice at some
prominent location at the Sagamore inside the kitchen, break room, or other non-public area. See
Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445, 449 (S.D.N.Y. 2011) (collecting
cases for proposition that “[c]ourts routinely approve requests to post notice on employee bulletin
boards and in other common areas, even where potential members will also be notified by mail.”);
Malloy v. Richard Fleischman & Assocs., 2009 U.S. Dist. LEXIS 51790, at *11 (S.D.N.Y. June 3,
2009) (requiring notice to be posted at each location collective action members were employed);
Hamelin v. Faxton-St. Luke's Healthcare, 2009 U.S. Dist. LEXIS 9793, at *32 (N.D.N.Y. Jan. 26,
2009) (ordering notice to “be posted by the defendants conspicuously in approved areas where
other labor and related notices are typically posted.”).
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CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully request that the Court enter an Order
pursuant to CPLR §904 approving Notice of this Class Action to be sent to all Class members.
Dated: November 29, 2021 Respectfully submitted,
White Plains, New York
______________________________
Ananda N. Chaudhuri
Law Office of Ananda Chaudhuri
57 West 57th St. 4th Fl.
New York, NY 10019
Tel: 212.457.1288
Email: ananda@ac-pllc.com
____________________________________
Joseph T. Moen
Law Office of Joseph T. Moen
63 Putnam Street, Suite 202
Saratoga Springs, NY 12866
Tel: 518.588.0316
Email: joe@jtmoenlaw.com
____________________________________
Keith M. Fleischman
Tyler E. Van Put
Fleischman Bonner & Rocco LLP
81 Main Street, Suite 515
White Plains, NY 10601
Tel: 914.278.5100
Fax: 917.591.5245
Email: kfleischman@fbrllp.com
tvanput@fbrllp.com
Counsel for Plaintiffs
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WORD COUNT CERTIFICATION
Pursuant to Rule 17, as amended by adding new section 202.8-b, I, Keith M. Fleischman,
certify that the foregoing Memorandum of Law complies with the word count limits as it contains
964 words.
______________________________
Keith M. Fleischman
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Preview
FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WARREN ----------------------------------------------------------x EVELYN O’BRIEN, JAMIE LYNN PATCHETT, CHRIS FORTNER, MICHAEL PETTA, JESSICA TAYLOR-MACKRODT, and Index No. 65232/2018 HEATHER MARTIN on behalf of themselves and others similarly situated, PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR UNOBJECTED- Plaintiffs, TO MOTION TO APPROVE PROPOSED NOTICE TO CLASS v. MEMBERS SAGBOLT, LLC, OCEAN PROPERTIES, LTD., PORTSMOUTH CORPORATE FINANCIAL SERVICES, INC., PATRICK WALSH, and THOMAS GUAY Defendants. ----------------------------------------------------------x 1 of 6 FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021 On August 19, 2021, this Court issued an Order (the “Class Cert. Order”) certifying the Class under CPLR Article 9, appointment of each of the named plaintiffs as a Class Representative, and appointing of class counsel. Plaintiffs and the Class (“Plaintiffs”) respectfully incorporate herein by reference the Class Cert. Order and their prior briefing requesting certification. Plaintiffs now request that, pursuant to CPLR 904, the Court approve their proposed form of class notice (the “Notice” a copy of which is attached hereto as Exhibit A). The parties’ counsel have conferred, and Defendants’ counsel, though reserving all of their rights and remedies, have authorized Plaintiffs to advise the Court that they have reviewed the Class Notice and the within memorandum, and have no objection to the Court approving the Class Notice for the reasons stated herein. The Class Notice follows the form of exemplars issued by the Federal Judicial Center (“FJC”) (www.fjc.gov). Congress established the FJC in 1967 at the recommendation of the United States Judicial Conference to serve as an education and research agency. The U.S. Judicial Branch's Advisory Committee on the Federal Rules Subcommittee on Class Actions tasked the FJC with developing illustrative notices of proposed class action certifications and settlements. To fulfill that task, the FJC engaged in a careful study of the use of plain language in legal documents. After obtaining recommendations from an attorney holding a doctorate in linguistics, and after conducting multiple rounds of focus groups, testing, and re-drafting to refine the notices so that they were as accessible and comprehensible as possible to those reading them to provide maximum comprehension for individuals reading the notice, the FJC finally posted and re-posted its illustrative notices for use by courts and attorneys. See Exhibit B (FJC Employment Discrimination Class Action-Full Notice). 1 2 of 6 FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021 Thanks to this comprehensive research and analysis, the FJC's illustrative notices are the recognized leading models for notice in class actions. See Spicer v. Pier Sixty, LLC, No. 08 Civ. 10240 (S.D.N.Y. 2010), ECF No. 58 (court approved notice similarly modeled after FJC in a class and collective action where plaintiffs’ allegations included that their employer failed to distribute the entire service charge to employees). See also Camesi v. Univ. of Pittsburgh Med. Ctr., 2009 U.S. Dist. LEXIS 56827, at *4-5 (W.D. Pa. July 1, 2009) (“The FJC’s model forms were developed through extensive research, commentary, and non-lawyer testing to promote “the plain language drafting” of class notice forms. The FJC's forms have been publicized “to demonstrate ways that drafters can use clear, simple, ‘plain language’ and design in class action notices,” and, in actual cases, attorneys and judges are encouraged to “adapt the illustrative notice[s] to the unique factual, legal, and procedural circumstances of ] their case.”… The format and content of the FJC's model notices facilitate the communication of complex legal issues in an easily readable and understandable fashion.”) Though developed in the federal court system, the same benefits apply to notice sent in state court cases. Plaintiffs’ proposed notice is easy to read and written in plain English. It informs Class members of their rights, including how, if they so elect, to opt out of the lawsuit so as to avoid waiving their liquidated damages. Id. See Downing v. First Lenox Terrace Assoc., 107 A.D. 3d 86, 89 (1st Dept 2013) (plaintiffs may waive liquidated damages on behalf of class in order to maintain a class action, provided “class members are allowed to opt out and pursue individual actions.”). The Notice also describes the legal effect of joining and not joining the suit and expressly observes that this Court has not expressed any opinion regarding the merits of Plaintiffs’ claims or Defendants’ liability. Furthermore, the Notice explains the procedure to opt-out in careful detail, 2 3 of 6 FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021 using plain, easily understandable language. See “How do I ask to be excluded from this class action lawsuit?” under the heading “WHO IS IN THE CLASS” (Exhibit A, at 4). Plaintiffs propose that the notice be mailed first-class and/or emailed to all Class members. To facilitate this notice, Defendants have agreed to disclose the names, last known addresses, and last known email addresses of all potential Plaintiffs. Plaintiffs, in turn, have retained the services of a highly experienced and competent claims administration firm, Arden Claims Services (“ACS”). Additional information about ACS can be found at www.ardenclaims.com. ACS will disseminate the class notice by email and regular mail, publish summary notice, conduct advance address searching, issue requisite notices under the Class Action Fairness Act (CAFA, 28 U.S.C. §1711), issue remails as necessary, send reminder postcards, and provide live operator support for Class members who have questions. Defendants have agreed to produce a list of names and last known addresses and other contact information for Class members during the Class Period. The parties also have agreed that Defendants shall internally post the notice at some prominent location at the Sagamore inside the kitchen, break room, or other non-public area. See Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445, 449 (S.D.N.Y. 2011) (collecting cases for proposition that “[c]ourts routinely approve requests to post notice on employee bulletin boards and in other common areas, even where potential members will also be notified by mail.”); Malloy v. Richard Fleischman & Assocs., 2009 U.S. Dist. LEXIS 51790, at *11 (S.D.N.Y. June 3, 2009) (requiring notice to be posted at each location collective action members were employed); Hamelin v. Faxton-St. Luke's Healthcare, 2009 U.S. Dist. LEXIS 9793, at *32 (N.D.N.Y. Jan. 26, 2009) (ordering notice to “be posted by the defendants conspicuously in approved areas where other labor and related notices are typically posted.”). 3 4 of 6 FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021 CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that the Court enter an Order pursuant to CPLR §904 approving Notice of this Class Action to be sent to all Class members. Dated: November 29, 2021 Respectfully submitted, White Plains, New York ______________________________ Ananda N. Chaudhuri Law Office of Ananda Chaudhuri 57 West 57th St. 4th Fl. New York, NY 10019 Tel: 212.457.1288 Email: ananda@ac-pllc.com ____________________________________ Joseph T. Moen Law Office of Joseph T. Moen 63 Putnam Street, Suite 202 Saratoga Springs, NY 12866 Tel: 518.588.0316 Email: joe@jtmoenlaw.com ____________________________________ Keith M. Fleischman Tyler E. Van Put Fleischman Bonner & Rocco LLP 81 Main Street, Suite 515 White Plains, NY 10601 Tel: 914.278.5100 Fax: 917.591.5245 Email: kfleischman@fbrllp.com tvanput@fbrllp.com Counsel for Plaintiffs 4 5 of 6 FILED: WARREN COUNTY CLERK 11/29/2021 04:03 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/29/2021 WORD COUNT CERTIFICATION Pursuant to Rule 17, as amended by adding new section 202.8-b, I, Keith M. Fleischman, certify that the foregoing Memorandum of Law complies with the word count limits as it contains 964 words. ______________________________ Keith M. Fleischman 5 6 of 6