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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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BRIAN JACKSON, on behalf of himself, individually,
and all other persons similarly situated,
Index No.: 607329/2023
Plaintiff,
-against- Return Date:
May 11, 2023 at 9:30 a.m.
FERGUSON ENTERPRISES, LLC,
Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
DAVID D. BARNHORN, ESQ.
PETER A. ROMERO, ESQ.
LAW OFFICE OF PETER A. ROMERO PLLC
Attorneys for Plaintiff
490 Wheeler Road, Suite 250
Hauppauge, New York 11788
Tel.: (631) 257-5588
Email: dbarnhorn@romerolawny.com
Email: promero@romerolawny.com
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I. PRELIMINARY STATEMENT
Subject to this Court’s approval, Plaintiff Brian Jackson and Defendant Ferguson
Enterprises, LLC have settled this putative class action for $3.3 million. The proposed settlement
resolves Plaintiff’s claims for failure to issue timely payment of wages earned under NYLL § 191
on a class-wide basis, and associated attorneys’ fees and litigation expenses and costs, and satisfies
all criteria for preliminary settlement approval under New York State law. With this unopposed
motion, Plaintiff respectfully requests that the Court enter an Order: (1) granting preliminary
approval of the Class Settlement Agreement and Release (“Settlement Agreement”), attached as
Exhibit A to the Affirmation of David D. Barnhorn, Esq. in Support of Plaintiff’s Unopposed
Motion for Preliminary Approval of Class Action Settlement (“Barnhorn Aff.”); (2) conditionally
certifying, for settlement purposes, the settlement class under Article 9 of the New York Civil
Practice Law and Rules; (3) appointing the Law Office of Peter A. Romero PLLC as Class
Counsel; (4) approving the proposed Notice of Class Action Lawsuit and Fairness Hearing and
Claim Form and Release, attached as Exhibits B-C to Barnhorn Aff., and directing their
distribution in English and Spanish; and (5) granting such other and further relief as the Court
deems just and proper.
Plaintiff is an individual who was employed as a non-managerial, hourly-paid delivery
driver, in the State of New York, during a portion of the class period covering June 6, 2016 through
March 15, 2022. Exhibit D to Barnhorn Aff. As relevant herein, Plaintiff asserts that Defendant
violated the NYLL by allegedly failing to pay him and the Class Members their wages with the
frequency required by NYLL § 191. Id. Defendant denies the allegations.
II. PROCEDURAL BACKGROUND AND TERMS OF SETTLEMENT
Plaintiff refers the Court to the Affirmation of David D. Barnhorn, Esq. in Support of
Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement for a
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discussion of the procedural history of this litigation and the terms of the parties’ settlement
agreement.
III. PROPOSED SETTLEMENT CLASS
The Class, as defined by the Settlement Agreement, is comprised of the named Plaintiff
and any hourly employee of Defendant in New York State who was employed at any time during
the six years prior to filing the initial complaint in the Federal Action through the end of the
Settlement Period (which covers from June 6, 2016 through March 15, 2022), and who were
manual workers under NYLL §191, except for any employee who agreed to arbitrate any
employment-related disputes with the Defendant, as determined by Defendant in good faith based
upon business records, or any employee who has otherwise signed a release of claims against the
Defendant (collectively, the “Class”). Exhibit A, at ¶¶ 1.8, 1.35, 1.37. The class includes
approximately 456 Class Members.
IV. ARGUMENT
A. The Proposed Settlement Should be Preliminarily Approved
CPLR § 908 specifies that the Court must approve any proposed compromise of a class
action and provide notice to the class members before the settlement takes effect. New York courts
regularly refer to federal standards in making this determination, in recognition that the two
statutory schemes are similar. Fiala v. Metro Life Ins. Co., 899 N.Y.S.2d 531, 537-538 (Sup. Ct.
N.Y. Cnty. 2010) (collecting cases). Courts examine “the fairness of the settlement, its adequacy,
its reasonableness and the best interests of the class members.” Id. at 537 (citing Klein v. Robert’s
Am. Gourmet Food, Inc., 28 A.D.3d 63, 73 (2d Dep’t 2006)); see also Rosenfeld v. Bear Stearns
& Co., 237 A.D.2d 199 (1st Dep’t 1997); Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000).
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Preliminary approval is subject to a less rigorous standard than final approval. In the final
approval determination, the Court’s consideration of whether the proposed settlement is fair and
adequate “balance[es] the value of the settlement against the present value of the anticipated
recovery following a trial on the merits, discounted for the inherent risks of litigation.” Klein, 28
A.D.3d at 73; see also Matter of Colt Indus. Shareholder Litig., 155 A.D.2d 154, 160 (1st Dep’t
1990). Courts may also consider “support of the class members, the opinion of counsel, lack of
collusion and counsels’ and class representatives’ adherence to fiduciary standards.” Fiala, 899
N.Y.S.2d at 538. On the other hand, preliminary approval is granted “[w]here the proposed
settlement appears to be the product of serious, informed, non-collusive negotiations, has no
obvious deficiencies, does not improperly grant preferential treatment to class representatives or
segments of the class and falls within the range of possible approval[.]” In re Initial Pub. Offerings
Sec. Litig., 226 F.R.D. 186, 191 (S.D.N.Y. 2005) (quoting Manual for Complex Litig., Third §
30.41 (1995)); In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y 1997)
(same); see also Ryan v. Volume Servs. Am., Inc., Docket No. 652970/2012, 2012 N.Y. Misc.
LEXIS 5513, at *1-2 (Sup. Ct. N.Y. Cnty. Dec. 6, 2012) (granting preliminary approval where
settlement was “the result of extensive, arm’s length negotiations by counsel well-versed in the
prosecution of wage and hour class and collective actions, and [] the proposed settlement has no
obvious deficiencies.”).
1. The Proposed Settlement is Fair, Adequate and Reasonable
a. The Proposed Settlement is the Product of Extensive, Arm’s-length
Negotiation
This settlement is the result of extensive arm’s-length negotiations. As discussed in the
procedural history, the parties engaged in relevant class discovery relating to liability and class-
wide damages in connection with the instant action. Such discovery allowed Plaintiff’s counsel to
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perform a detailed damages analysis based on the data that Plaintiff and Defendant provided. In
addition, the parties engaged in protracted, contentious settlement negotiations, including
mediation with an experienced mediator.1 These negotiations were hard fought and arm’s-length,
and they have produced a result that Plaintiff’s counsel believes to be in the best interest of the
Class considering the cost and risks of continued litigation.
b. The Settlement Contains No Obvious Deficiencies
The proposed settlement contains no obvious deficiencies. As explained above, the
proposed settlement was reached only after a mediation and after contentious, arm’s-length
negotiations between the parties and their experienced counsel, who considered the advantages
and disadvantages of continued litigation. Plaintiff’s counsel believes that this settlement achieves
all of the objectives of litigation, namely a substantial monetary settlement to Class Members who
were subject to the Defendant’s allegedly unlawful frequency of compensation practice. Plaintiff’s
counsel, who has substantial experience in the prosecution and resolution of wage and hour
actions, including class actions, has carefully evaluated the merits of the case and the proposed
settlement. Even if this case were to proceed to trial, Plaintiff’s counsel recognizes that the
apparent strength of Plaintiff’s cause of action is no guarantee against a complete or partial defense
verdict. Furthermore, even if a judgment were obtained against Defendant at trial, the relief might
be no greater, and indeed might be less, than that provided by the proposed settlement. Indeed,
Plaintiff and the putative Class Members would be forced to overcome Defendant’s factual and
legal contentions that Defendant is not liable to Plaintiff and the putative Class Members for
1
Notably, the presence of a mediator during the settlement process “provides assurance that the settlement was not
the product of collusion.” Bilbao v. LCS Enters. Inc., 2018 WL 1399199, at *2 (S.D.N.Y. Mar. 19, 2018); see also
Hernandez v. Anjost Corp., 2013 WL 4145952, at *2 (S.D.N.Y. Aug. 14, 2013) (“The assistance of an experienced
mediator . . . reinforces that the Settlement Agreement is non-collusive."); Morris v. Affinity Health Plan, Inc., 859 F.
Supp. 2d 611, 618-619 (S.D.N.Y. 2012) (citing In re Giant Interactive Grp., Inc. Sec. Litig., 279 F.R.D. 151, 159-160
(S.D.N.Y. 2011)) (explaining parties entitled to a presumption of fairness where mediator facilitated arms’-length
settlement).
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alleged violations of NYLL § 191, and that, even if Plaintiff and the putative Class Members were
successful, they would be entitled to lesser damages than alleged. Specifically, Plaintiff’s
frequency of payment claim under NYLL § 191 requires that individuals classified as a manual
worker be paid their wages not later than seven days of when their wages were earned. Although
there is no dispute that the Class Members were paid every two weeks, Defendant would have
challenged, among other things, whether the Class Members, or possibly particular categories of
Class Members, qualify as manual workers under the NYLL. Defendant would also likely
challenge, among other things, whether certain categories of employees covered by the Class are
sufficiently similarly-situated to constitute Class Members. If successful, Defendant’s various
arguments (which Plaintiff disputes) could possibly limit the number of Class Members covered
by the lawsuit or defeat the NYLL § 191 class claim in its entirety. Additionally, Defendant is
likely to assert certain legal defenses, including a claim that there is no private right of action for
violations of NYLL § 191. Plaintiff and Defendant staunchly disagree over whether a private right
of action exists for claims under NYLL § 191, which Plaintiff contends exists pursuant to Appellate
Division case law and subsequent decisions by other courts. The parties also dispute the proper
remedy for violation of NYLL § 191, if Plaintiff were to be successful at trial. If successful,
Defendant’s legal arguments could defeat the NYLL § 191 class claim in its entirety or
dramatically reduce the amount of damages awarded to Plaintiff and the Class Members at trial.
As such, the parties’ settlement appropriately reflects both the strengths and substantial risks that
Plaintiff and the Class Members face with respect to establishing both liability and the amount of
damages owed to them and Defendant’s strengths and risks regarding establishing their defenses.
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2. Certification of the Settlement Class is Appropriate
Plaintiff alleges that Defendant uniformly violated the NYLL with respect to all Class
Members by failing to pay Plaintiff and the Class Members their wages earned weekly, or not later
than seven days of when the wages were earned, as required by NYLL § 191. Exhibit D to
Barnhorn Aff. These violations arise from Plaintiff’s contentions that, inter alia, Defendant failed
to classify the Plaintiff and putative Class Members as manual workers and paid the Plaintiff and
putative Class Members every two weeks, rather than weekly, in violation of the NYLL. As such,
the instant motion seeks an Order pursuant to Article 9 of the CPLR certifying a Class comprised
of the Plaintiff and those non-managerial, individuals who worked for Defendant as an hourly-
paid employees in New York State at any time during June 6, 2016 through March 15, 2022, and
who were manual workers under NYLL §191, except for any employee who agreed to arbitrate
any employment-related disputes with the Defendant, as determined by Defendant in good faith
based upon business records, or any employee who has otherwise signed a release of claims against
the Defendant. Exhibit A, at ¶¶ 1.8, 1.35, 1.37 to Barnhorn Aff.
The proposed settlement Class satisfies each of the five statutory requirements of CPLR §
901 and the factors in CPLR § 902. See, e.g., Pludeeman v. Northern Leasing Systems, Inc., 74
A.D.3d 420, 421-422 (1st Dep’t 2010) (citing Weinberg v. Hertz Corp., 116 A.D.2d 1, 4 (1st Dep’t
1986), aff’d, 69 N.Y.2d 979 (1987)); Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191 (1st
Dep’t 1998)); see also Ryan, 2012 Misc. LEXIS 5513, at *1-2 (provisionally certifying class for
settlement purposes). Thus, for the reasons set forth below, the proposed settlement class should
be certified.
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a. The Class Certification Statute Should be Liberally Construed
It is well established that in deciding whether to certify a class, “a court must be mindful
of [the Appellate Division’s] holding that the class certification statute should be liberally
construed.” Kudinov v. Kel-Tech Construction Inc. 65 A.D.3d 481, 481 (1st Dep’t 2009) (citing
Englade v. Harper Collins Publs., Inc., 289 A.D.2d 159, 159 (1st Dep’t 2001)); see also Pruitt v.
Rockefeller Center Props., Inc., 167 A.D.2d 14, 21 (1st Dep’t 1991) (“[a]ppellate courts in this
state have repeatedly held that the class action statute should be liberally construed…any error, if
there is to be one, should be…in favor of allowing the class action”); Friar v. Vanguard Holding
Corp., 78 A.D.2d 83, 90-92 (2nd Dep’t 1980); Galdamez v. Biordi Construction Corp., 2006 WL
2969651 (Sup. Ct. N.Y. Cnty. Oct. 17, 2006), aff’d, 855 N.Y.S.2d 104 (1st Dep’t 2008); Pajaczek
v. Cema Const. Corp., 18 Misc.3d 1140(A), at *2 (Sup. Ct. N.Y. Cnty. Feb. 21, 2008) (citing
Brandon v. Chefetz, 106 A.D.2d 162, 168 (1st Dep’t 1985)).
The flexible scheme of Article 9 was enacted to replace the previously rigid and undesirable
restrictions that existed under former law. This legislative intent was acknowledged in Brandon
v. Chefetz:
In his scholarly and persuasive opinion in Friar v. Vanguard Holding [cited
above as 78 A.D.2d 83 (2d Dep’t 1980)], Justice Lazer stated that the
criteria for class certification “should be broadly construed not only because
of the general command for liberal construction of all CPLR sections (see
CPLR 104), but also because it is apparent that the Legislature intended
article 9 to be a liberal substitute for the narrow class action legislation
which preceded it.”
106 A.D.2d at 168.
Class certification is routinely granted in wage and hour actions in the State of New York.
See, e.g., Steko v. RLI Ins. Co., 121 A.D.3d 542 (1st Dep’t 2014) (quoting Nawrocki v. Proto
Construction and Development Corp., 82 A.D.3d 534, 536 (1st Dep’t 2011)) (“We note that, as
we have previously held, a class action is the ‘superior vehicle’ for resolving wage disputes ‘since
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the damages allegedly suffered by an individual class member are likely to be insignificant, and
the costs of prosecuting individual actions would result in the class members having no realistic
day in court’”); Dabrowski v. Abax Inc., 84 A.d.3d 633, 635 (1st Dep’t 2011) (citations omitted)
(class action “is superior to the prosecution of individualized claims” in action to recover unpaid
wages); Pesantez v. Boyle Env. Servs., Inc., 251 A.D.2d 11, 12 (1st Dep’t 1998) (citation omitted)
(class action is the “best method of adjudicating” wage and hour disputes); see also, e.g., Williams
v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Oct.
19, 2022) (See Dkt. No. 23) (conditionally certifying class of non-managerial employees
performing patient care, housekeeping, maintenance, dishwashing, and food service/preparation
in rehabilitation facilities with respect to claims under NYLL § 191); Galeas v. Amneal
Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Sept. 27,
2022) (See Dkt. No. 9) (conditionally certifying class of warehouse workers with respect to claims
under NYLL § 191); Sorin v. Peloton Interactive, Inc., Docket No. 611560/2021 (Sup. Ct. Nassau
Cnty. Dec. 2, 2021) (See Dkt. No. 16) (conditionally certifying class of non-managerial field and
warehouse workers with respect to claims under NYLL § 191); Diaz v. Paramount Beauty
Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Jan. 13, 2021) (See
Dkt. No. 13) (conditionally certifying class of non-managerial warehouse workers with respect to
claims under NYLL § 191); Velasquez v. 2158 Restaurant Corp., Index No. 613562/2020 (Sup.
Ct. Nassau Cnty. Feb. 1, 2021) (See Dkt. No. 12) (conditionally certifying class of non-managerial
restaurant workers for settlement purposes in case alleging multiple wage violations under the
NYLL); Medina v. Neri’s Bakery Products, Inc., Index. No. 22916/2019 (Sup. Ct. Bronx Cnty.
Oct. 1, 2019) (See Dkt. No. 14) (conditionally certifying class of non-managerial factory workers
in commercial bakery for settlement purposes in case alleging failure to pay spread of hours
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compensation under the NYLL); Ryan 2012 N.Y. Misc. LEXIS 513, at *1-2 (conditionally
certifying class of servers and runners for settlement purposes in case alleging violations of the
NYLL); Krebs v . The Canyon Club, 880 N.Y.S.2d 873 (Sup. Ct. Westchester Cnty. Jan. 2, 2009)
(certifying class of service employees at defendants’ catering facilities where plaintiffs alleged
violation of the NYLL); Ramirez v. Mansions Catering, Inc., 2008 WL 6135949 (Sup. Ct. N.Y.
Cnty. Apr. 27, 2008), aff’d, 74 A.D.3d 490 (1st Dep’t 2010) (certifying class of employees who
work at defendants’ restaurant and catering facilities who alleged defendants violated the NYLL).
In these cases, courts have found that all requirements of CPLR §§ 901 and 902 have been met by
workers suffering wage and hour violations based on allegedly improper wage-and-hour practices
used by their employers. Accordingly, certification of the instant settlement class is proper.
Moreover, though the instant action clearly meets the requirements for class certification,
as demonstrated below, any doubts must be resolved in favor of class certification. Pruitt, 167
A.D.2d at 21 (“any error, if there is to be one, should be…in favor of allowing the class action”);
Friar, 78 A.D.2d at 90-92; Brandon,106 A.D.2d at 168.
b. This Action Satisfies All of the Prerequisites of CPLR § 901
CPLR § 901(a) provides that one or more members of a class may sue as representative
parties on behalf of a class if:
1. The class is so numerous that joinder of all members whether otherwise required or
permitted is impracticable [“numerosity”];
2. There are questions of law or fact common to the class which predominate over any
question affecting only individual members [“predominance”];
3. The claims or defenses of the representative parties are typical of the claims or
defenses of the class [“typicality”];
4. The representative parties will fairly and adequately protect the interests of the class
[“adequacy”]; and
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5. A class action is superior to other available methods for the fair and efficient
adjudication of the controversy [“superiority”].
i. The Class is so Numerous that Joinder of All Members is
Impracticable
CPLR § 901(a)(1) requires the class to be so numerous that joinder of all class members is
impracticable. Courts have held the general threshold for impracticability of joinder to be around
40, although numerosity has been satisfied with less than 40 class members. See e.g., Pesantez,
251 A.D.2d 11. Here, based on the prior discovery, there are approximately 456 Class Members,
well in excess of the forty-person threshold. Under these circumstances, joinder is both
impracticable and undesirable, and the “numerosity” requirement has clearly been satisfied.
ii. Questions of Law and Fact Common to the Class
Predominate Over any Possible Question Affecting Only
Individual Class Members
“To satisfy this requirement, plaintiffs must show that ‘the nature of the claims is such as
to indicate a predominance of common issues of law and fact over individual questions of
damages.’” Weinstein v. Jenny Craig Operations, Inc., 41 Misc. 3d 1220(A), at *3 (Sup. Ct. N.Y.
Cnty. 2013) (quoting Pesantez v Boyle Environmental Servs., Inc., 251 A.D.2d 11, 12 (1st Dep’t
1998)); Borden v. 400 East 55th Street Assocs., LP., 24 N.Y.3d 382, 399 (2014) (“[T]he
predominant legal question involves one that applies to the entire class.”). This standard requires
“predominance, not identity or unanimity, among class members” and has been satisfied in other
NYLL cases where defendants use a common scheme to affect the wages of its employees and the
legality of that scheme is called into question. Krebs, 880 N.Y.S.2d 873 at *6 (citing Friar, 78
A.D.2d at 98) (holding that the difference in the manner in which the defendants obtained money
from potential class members does not mean that the individual questions predominate over
common questions); see, e.g., Williams v. Sunrise Senior Living Management, Inc., Index No.
603289/2022 (Sup. Ct. Nassau Cnty. Oct. 19, 2022) (See Dkt. No. 23) (conditionally certifying
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class of non-managerial employees with respect to claims under NYLL § 191 where common pay
scheme applied to all class members); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index
No. 607658/2022 (Sup. Ct. Nassau Cnty. Sept. 27, 2022) (See Dkt. No. 9) (conditionally certifying
class of warehouse workers with respect to claims under NYLL § 191 where common pay scheme
applied to all class members); Sorin v. Peloton Interactive, Inc., Docket No. 611560/2021 (Sup.
Ct. Nassau Cnty. Dec. 2, 2021) (See Dkt. No. 16) (conditionally certifying class of non-managerial
field and warehouse workers with respect to claims under NYLL § 191 where common pay scheme
applied to all class members); Diaz v. Paramount Beauty Distributing Associates, Inc., Index No.
606165/2020 (Sup. Ct. Suffolk Cnty. Jan. 13, 2021) (See Dkt. No. 13) (conditionally certifying
class of non-managerial warehouse workers with respect to claims under NYLL § 191 where
common pay scheme applied to all class members); Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543
(1st Dep’t 2014) (citing Orgill v. Ingersoll-Rand Co., 110 A.D.3d 573, 574 (1st Dep’t 2013))
(finding commonality where all class members shared causes of action that defendant failed to pay
the appropriate wages and benefits); Weinstein, 41 Misc. 3d 1220(A), at *3 (finding commonality
where plaintiffs alleged that they were subjected to uniform time keeping practices); Ryan, 2012
N.Y. Misc. LEXIS 5513, at *2 (finding that the action seeking unpaid gratuities satisfied all
prerequisites of CPLR § 901); Cherry v. Resource Am., Inc., 15 A.D.3d 1013 (4th Dep’t 2005)
(certifying a class and finding that common questions of law and fact predominated because
defendants used a common method to manipulate the calculation of royalties).
“The fundamental issue…is whether the proposed class action asserts a common legal
grievance, i.e., whether the common issues predominate over or outweigh the subordinate issues
that pertain to individual members of the class.” Geiger v. American Tobacco Co., 181 Misc. 2d
875, 883 (Sup. Ct. Queens Cnty. 1999) (quoting 3 Weinstein- Korn- Miller, N.Y. Civil Practice §
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901.11); see also Pesantez, 251 A.D.2d at 12 (citing Pruitt, 167 A.D.2d at 22)). Whether common
questions of law or fact predominate “should not be determined by any mechanical test, but rather,
whether the use of a class action would achieve economies of time, effort, and expense, and
promote uniformity of decision as to persons similarly situated.” Friar, 78 A.D.2d at 97 (internal
punctuation omitted). In determining whether the claims of the Plaintiff and putative Class
Members share common questions of law or fact, “factual identity between the Plaintiff[s’] claim
and those of the class [they] seek[] to represent is not necessary if these claims arise, at least in
part, from a common wrong or set of wrongs regardless of individual factors.” Pajaczek, 18
Misc.3d 1140(A), at *4 (citing Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir. 1975)).
“The statute clearly envisions authorization of class actions even when there are subsidiary
questions of law or fact not common to the class.” Krebs, 880 N.Y.S.2d at *6 (citing Weinberg,
116 A.D.2d at 6); Borden, 24 N.Y.3d at 399 (“It should be noted that the legislature enacted CPLR
901(a) with a specific allowance for class actions in cases where damages differed among the
plaintiffs, stating the amount of damages suffered by each class member typically varies from
individual to individual, but that fact will not prevent the suit from going forward as a class if the
important legal or factual issues involving liability are common to the class.”) (internal quotation
marks and citation omitted).
Here, Plaintiff and Class Members are unified by common legal and factual allegations,
namely that the Defendant allegedly violated the NYLL with respect to all Class Members by
failing to pay Class Members their wages earned weekly, or not later than seven days of when the
wages were earned, as required by NYLL § 191. Thus, Plaintiff possesses a viable class cause of
action under the NYLL that is common to all Class Members.
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Indeed, the questions of law and fact concerning Defendant’s alleged practice of failing to
timely pay wages earned on a weekly basis, which Plaintiff alleges subjects Defendant to liability
and damages for violations under the NYLL, involve not merely common questions but involve
identical questions. Plaintiff contends that the harm which Plaintiff allegedly suffered is identical
to the harm allegedly suffered by every putative Class Member pursuant to Defendant’s
compensation practice, namely, that Defendant failed to timely pay all putative Class Members
their wages earned on a weekly basis as required by NYLL § 191. As such, the issues presented
here can only be effectively decided on a class-wide basis since the central issue is whether the
Defendant’s practice with regard to its decision not to classify Plaintiff and the putative Class
Members as manual workers, and its practice of paying Plaintiff and the putative Class Members
their wages earned bi-weekly, is lawful. Plaintiff takes the position that if Defendant were
determined to be liable to one Class Member, Defendant would be liable to all Class Members.
iii. Plaintiff’s Claims are Typical of the Claims of the Class
CPLR § 901(a)(3) requires that the Plaintiff’s causes of action be typical of the proposed
class. The typicality requirement is satisfied when the Plaintiff’s causes of action “derive[] from
the same practice or course of conduct that gave rise to the remaining claims of other class
members and is based upon the same legal theory…” Friar, 78 A.D.2d at 99 (citing CPLR §
901(a)(3)); Pajaczek, 18 Misc.3d 1140(A), at *4; Galdamez, 2006 WL 2969651, at *3 (quoting
Pruitt, 167 A.D.2d at 22). The essence of typicality is that the representative party must have an
individual cause of action and that the representative’s interest must be closely identified with that
of the class members. See 2 Weinstein, Korn & Miller, N.Y Civ Practice, § 901.09; Fed. R. Civ.
P. 23(a)(3).
To determine typicality, “it is not necessary that the claims of the named plaintiffs be
identical to those of the class.” Super Glue v. Avis Rent-A-Car System, Inc., 132 A.D.2d 604, 607
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(2d Dep’t 1990); Morrissey v. Nextel Partners, Inc., 22 Misc. 3d 1124(A), at *10 (Sup. Ct. Albany
Cnty. 2009) (quoting Pruitt,167 A.D.2d at 22) (“Typicality is satisfied so long as the named
plaintiffs’ claims ‘arise[] out of the same course of conduct as the class members’ claims and [are]
based on the same cause[s] of action’”). Nevertheless, the “plaintiffs’ claims must not be
antagonistic to or in conflict with the interest of other class members.” Gilman v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 93 Misc.2d 941, 945 (Sup. Ct. N.Y. Cnty. 1978). Where an alleged
defense may affect an individual’s right to recover but does not affect the liability issues for the
class, this defense does not make the Plaintiff’s cause of action atypical. See Lessard v.
Metropolitan Life Ins. Co., 103 F.R.D. 608, 613 (D. Me. 1984).
In this case, Plaintiff’s claims are typical of the claims of the Class Members that he seeks
to represent. Plaintiff and Class Members all worked as non-managerial hourly-paid employees –
working as warehouse associates and yard workers, shop pipe welders, delivery drivers, counter
sales representatives, and in other similarly situated positions – in New York, and all were
allegedly manual workers that were paid every two weeks, rather than being paid weekly. Thus,
it is clear that typicality is present because the (i) causes of action of Plaintiff and all other members
of the putative Class arise from the same alleged conduct; (ii) Plaintiff and the putative Class
Members suffered from the same wrong allegedly committed by Defendant for which Defendant
is allegedly liable; and (iii) Plaintiff’s and Class Members’ claims are based on the same legal
theory. See, e.g., Weinstein, 41 Misc. 3d 1220(A), at *4 (finding typicality where the plaintiffs’
and class members’ wage and hour cause of action arose out of the same course of conduct); Ryan,
2012 N.Y. Misc. LEXIS 5513, at *2 (finding that plaintiffs’ cause of action for unpaid service
charges satisfied the typicality requirement for settlement purposes); Galdamez, 2006 WL
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2969651, at *3 (plaintiffs’ claims typical where they arise out of the same course of conduct as
class members’ claims and are based on the same cause of action).
iv. Plaintiff Will Fairly and Adequately Protect the Interests of
the Class
CPLR § 901(a)(4) requires that a class representative is “part of the class and possess[es]
the same interest and suffer[s] the same injury as the class members.” Weinstein, 41 Misc. 3d
1220(A), at *4. Adequacy of representation further requires that “counsel for the named Plaintiffs
be competent and that the interests of the named Plaintiffs and the members of the class not be
adverse.” Pajaczek, 18 Misc.3d 1140(A), at *4 (citing Pruitt, 167 A.D.2d at 24).
Here, Plaintiff stands to gain a pecuniary benefit through the successful prosecution of this
action. Plaintiff seeks the same relief as all other Class Members – to receive damages for alleged
violations of NYLL § 191. As such, Plaintiff stands to maximize his recovery by maximizing the
recovery of the entire Class.2 Under such circumstances, Plaintiff’s interests cannot be adverse to
the Class as his interests are wholly identical to the Class. Furthermore, Plaintiff is familiar with
the lawsuit, has been actively involved in the litigation and settlement, and is fully aware of his
claims, as well as the claims of the Class Members that he seeks to represent.
2
Notably, Plaintiff intends to seek approval of a service award in an amount up to $30,000. See Exhibit A, at ¶¶ 1.31-
1.32, 3.6. However, Plaintiff stands to gain the best recovery by maximizing the settlement sum available to the Class
that he will share in as a fellow Class Member. See Exhibit A, at ¶¶ 1.3, 1.7, 1.19-1.20, 1.35, 3.2, 3.4, to Barnhorn
Aff. Additionally, this service award is well within the range that Courts have approved in other lawsuits. See
Fernandez v. Legends Hospitality, LLC, Index No. 152208/2014, Dkt. No. 41 at Pgs. 4-7 (Sup. Ct. N.Y. Cnty. June
22, 2015) (noting that class representatives undertake risk to future employment by filing employment class actions
and collecting cases approving of service awards of up to $45,000 in wage and hour matters); Sewell v. Bovis Lend
Lease, Inc., 2012 WL 1320124, at *14-15 (S.D.N.Y April. 16, 2012) (noting that class representatives undertake risk
to future employment by filing employment class actions and collecting cases approving of service awards of $10,000
to $85,000, as well as certain even higher awards); Matheson v. T–Bone Rest., LLC, 2011 WL 6268216, at *9
(S.D.N.Y. 2011) (approving a service award of $45,000.00 for a class representative in a wage and hour action); Willix
v. Healthfirst, Inc., 2011 WL 754862, at *7 (E.D.N.Y. Feb. 18, 2011) (finding service award in wage and hour action
of $30,000.00 to be reasonable); Mentor v. Imperial Parking Sys., Inc., 2010 WL 5129068, at *1-2, *5 (S.D.N.Y. Dec.
15, 2010) (granting $40,000 service award in wage and hour action); Frank, 228 F.R.D. at 187-188 (noting that class
representative undertakes risk to future employment by filing employment class actions).
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Additionally, Plaintiff is represented by counsel experienced in class actions and labor and
employment law, and who have been appointed as class counsel in other wage and hour matters,
including class action litigations that asserted the same claim as the Class Members in the current
matter. See Barnhorn Aff. at ¶¶ 24-32. Thus, the adequacy requirement is met. See Borden, 24
N.Y.3d at 399-400 (upholding certification where the court “found no substantiated conflicts
between the [class members] and a representative with adequate understanding of the case, and
competent attorneys.”) (internal question marks and citations omitted).
v. A Class Action is Superior to the Other Available Methods
to Resolve this Dispute
In accordance with CPLR § 901(a)(5), numerous courts have concluded that a class action
is the superior method for resolving a plaintiff’s claim that he and putative class members were
subjected to an improper wage and hour practice. See, e.g., Williams v. Sunrise Senior Living
Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Oct. 19, 2022) (See Dkt. No.
23) (finding all requirements of CPLR § 901 satisfied and conditionally certifying class of non-
managerial employees with respect to claims under NYLL § 191); Galeas v. Amneal
Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Sept. 27,
2022) (See Dkt. No. 9) (finding all requirements of CPLR § 901 satisfied and conditionally
certifying class of warehouse workers with respect to claims under NYLL § 191); Sorin v. Peloton
Interactive, Inc., Docket No. 611560/2021 (Sup. Ct. Nassau Cnty. Dec. 2, 2021) (See Dkt. No. 16)
(finding all requirements of CPLR § 901 satisfied and conditionally certifying class of non-
managerial field and warehouse workers with respect to claims under NYLL § 191); Diaz v.
Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty.
Jan. 13, 2021) (See Dkt. No. 13) (finding all requirements of CPLR § 901 satisfied and
conditionally certifying class of non-managerial warehouse workers with respect to claims under
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NYLL § 191); Stecko, 121 A.D.3d at 543; Krebs, 22 Misc.3d 1125(A), at *12, 14-16; Pesantez,
251 A.D.2d at 11-12; Nawrocki, 82 A.D.3d at 536; Brandy v. Canea Mare Contr., Inc., 34 A.D.3d
512 (2d Dep’t 2006); Galdamez, 2006 WL 2969651, at *4; Pajaczek, 18 Misc.3d 1140(A). The
class action method is particularly effective in wage and hour cases, such as the instant action. See
Krebs, 22 Misc.3d 1125(A), at *16 (“It is obvious that the prosecution of separate actions by each
affected member of the…wait staff would be highly impracticable and very inefficient…It is likely
that the same patrons would be subject to repeat depositions and trials.”). These common issues
can be most efficiently and economically addressed on a class-wide basis. See In re “Agent
Orange” Product Liability Litig., 506 F. Supp. 762, 787-788 (E.D.N.Y. 1980) (when common
issues predominate, courts generally find the class procedure to be the best and only realistic means
of disposing of a large number of claims arising out of the same operative facts). Subjecting the
Court and the litigants to the expense and time of multiple trials would be wasteful and resolving
the common issues on a class-wide basis will create a uniform resolution of the issues, thereby
providing the framework for the adjudication or settlement of whatever individual damage issues
remain. Friar, 78 A.D.2d at 97.
Employing the class device here will achieve economies of scale for the putative Class
Members, conserve judicial resources, and preserve public confidence in the system by avoiding
repetitive proceedings and preventing inconsistent adjudications where the Class Members were
all subject to a common compensation policy. Accordingly, a class action is clearly superior to
any alternative means of obtaining relief for the Class Members. Borden, 24 N.Y.3d at 400 (“[T]o
preserve judicial resources, class certification is superior to having these claims adjudicated
individually.”).
17
Preview
FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------X BRIAN JACKSON, on behalf of himself, individually, and all other persons similarly situated, Index No.: 607329/2023 Plaintiff, -against- Return Date: May 11, 2023 at 9:30 a.m. FERGUSON ENTERPRISES, LLC, Defendant. -----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT DAVID D. BARNHORN, ESQ. PETER A. ROMERO, ESQ. LAW OFFICE OF PETER A. ROMERO PLLC Attorneys for Plaintiff 490 Wheeler Road, Suite 250 Hauppauge, New York 11788 Tel.: (631) 257-5588 Email: dbarnhorn@romerolawny.com Email: promero@romerolawny.com 1 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 I. PRELIMINARY STATEMENT Subject to this Court’s approval, Plaintiff Brian Jackson and Defendant Ferguson Enterprises, LLC have settled this putative class action for $3.3 million. The proposed settlement resolves Plaintiff’s claims for failure to issue timely payment of wages earned under NYLL § 191 on a class-wide basis, and associated attorneys’ fees and litigation expenses and costs, and satisfies all criteria for preliminary settlement approval under New York State law. With this unopposed motion, Plaintiff respectfully requests that the Court enter an Order: (1) granting preliminary approval of the Class Settlement Agreement and Release (“Settlement Agreement”), attached as Exhibit A to the Affirmation of David D. Barnhorn, Esq. in Support of Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement (“Barnhorn Aff.”); (2) conditionally certifying, for settlement purposes, the settlement class under Article 9 of the New York Civil Practice Law and Rules; (3) appointing the Law Office of Peter A. Romero PLLC as Class Counsel; (4) approving the proposed Notice of Class Action Lawsuit and Fairness Hearing and Claim Form and Release, attached as Exhibits B-C to Barnhorn Aff., and directing their distribution in English and Spanish; and (5) granting such other and further relief as the Court deems just and proper. Plaintiff is an individual who was employed as a non-managerial, hourly-paid delivery driver, in the State of New York, during a portion of the class period covering June 6, 2016 through March 15, 2022. Exhibit D to Barnhorn Aff. As relevant herein, Plaintiff asserts that Defendant violated the NYLL by allegedly failing to pay him and the Class Members their wages with the frequency required by NYLL § 191. Id. Defendant denies the allegations. II. PROCEDURAL BACKGROUND AND TERMS OF SETTLEMENT Plaintiff refers the Court to the Affirmation of David D. Barnhorn, Esq. in Support of Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement for a 1 2 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 discussion of the procedural history of this litigation and the terms of the parties’ settlement agreement. III. PROPOSED SETTLEMENT CLASS The Class, as defined by the Settlement Agreement, is comprised of the named Plaintiff and any hourly employee of Defendant in New York State who was employed at any time during the six years prior to filing the initial complaint in the Federal Action through the end of the Settlement Period (which covers from June 6, 2016 through March 15, 2022), and who were manual workers under NYLL §191, except for any employee who agreed to arbitrate any employment-related disputes with the Defendant, as determined by Defendant in good faith based upon business records, or any employee who has otherwise signed a release of claims against the Defendant (collectively, the “Class”). Exhibit A, at ¶¶ 1.8, 1.35, 1.37. The class includes approximately 456 Class Members. IV. ARGUMENT A. The Proposed Settlement Should be Preliminarily Approved CPLR § 908 specifies that the Court must approve any proposed compromise of a class action and provide notice to the class members before the settlement takes effect. New York courts regularly refer to federal standards in making this determination, in recognition that the two statutory schemes are similar. Fiala v. Metro Life Ins. Co., 899 N.Y.S.2d 531, 537-538 (Sup. Ct. N.Y. Cnty. 2010) (collecting cases). Courts examine “the fairness of the settlement, its adequacy, its reasonableness and the best interests of the class members.” Id. at 537 (citing Klein v. Robert’s Am. Gourmet Food, Inc., 28 A.D.3d 63, 73 (2d Dep’t 2006)); see also Rosenfeld v. Bear Stearns & Co., 237 A.D.2d 199 (1st Dep’t 1997); Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). 2 3 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 Preliminary approval is subject to a less rigorous standard than final approval. In the final approval determination, the Court’s consideration of whether the proposed settlement is fair and adequate “balance[es] the value of the settlement against the present value of the anticipated recovery following a trial on the merits, discounted for the inherent risks of litigation.” Klein, 28 A.D.3d at 73; see also Matter of Colt Indus. Shareholder Litig., 155 A.D.2d 154, 160 (1st Dep’t 1990). Courts may also consider “support of the class members, the opinion of counsel, lack of collusion and counsels’ and class representatives’ adherence to fiduciary standards.” Fiala, 899 N.Y.S.2d at 538. On the other hand, preliminary approval is granted “[w]here the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the range of possible approval[.]” In re Initial Pub. Offerings Sec. Litig., 226 F.R.D. 186, 191 (S.D.N.Y. 2005) (quoting Manual for Complex Litig., Third § 30.41 (1995)); In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y 1997) (same); see also Ryan v. Volume Servs. Am., Inc., Docket No. 652970/2012, 2012 N.Y. Misc. LEXIS 5513, at *1-2 (Sup. Ct. N.Y. Cnty. Dec. 6, 2012) (granting preliminary approval where settlement was “the result of extensive, arm’s length negotiations by counsel well-versed in the prosecution of wage and hour class and collective actions, and [] the proposed settlement has no obvious deficiencies.”). 1. The Proposed Settlement is Fair, Adequate and Reasonable a. The Proposed Settlement is the Product of Extensive, Arm’s-length Negotiation This settlement is the result of extensive arm’s-length negotiations. As discussed in the procedural history, the parties engaged in relevant class discovery relating to liability and class- wide damages in connection with the instant action. Such discovery allowed Plaintiff’s counsel to 3 4 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 perform a detailed damages analysis based on the data that Plaintiff and Defendant provided. In addition, the parties engaged in protracted, contentious settlement negotiations, including mediation with an experienced mediator.1 These negotiations were hard fought and arm’s-length, and they have produced a result that Plaintiff’s counsel believes to be in the best interest of the Class considering the cost and risks of continued litigation. b. The Settlement Contains No Obvious Deficiencies The proposed settlement contains no obvious deficiencies. As explained above, the proposed settlement was reached only after a mediation and after contentious, arm’s-length negotiations between the parties and their experienced counsel, who considered the advantages and disadvantages of continued litigation. Plaintiff’s counsel believes that this settlement achieves all of the objectives of litigation, namely a substantial monetary settlement to Class Members who were subject to the Defendant’s allegedly unlawful frequency of compensation practice. Plaintiff’s counsel, who has substantial experience in the prosecution and resolution of wage and hour actions, including class actions, has carefully evaluated the merits of the case and the proposed settlement. Even if this case were to proceed to trial, Plaintiff’s counsel recognizes that the apparent strength of Plaintiff’s cause of action is no guarantee against a complete or partial defense verdict. Furthermore, even if a judgment were obtained against Defendant at trial, the relief might be no greater, and indeed might be less, than that provided by the proposed settlement. Indeed, Plaintiff and the putative Class Members would be forced to overcome Defendant’s factual and legal contentions that Defendant is not liable to Plaintiff and the putative Class Members for 1 Notably, the presence of a mediator during the settlement process “provides assurance that the settlement was not the product of collusion.” Bilbao v. LCS Enters. Inc., 2018 WL 1399199, at *2 (S.D.N.Y. Mar. 19, 2018); see also Hernandez v. Anjost Corp., 2013 WL 4145952, at *2 (S.D.N.Y. Aug. 14, 2013) (“The assistance of an experienced mediator . . . reinforces that the Settlement Agreement is non-collusive."); Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 618-619 (S.D.N.Y. 2012) (citing In re Giant Interactive Grp., Inc. Sec. Litig., 279 F.R.D. 151, 159-160 (S.D.N.Y. 2011)) (explaining parties entitled to a presumption of fairness where mediator facilitated arms’-length settlement). 4 5 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 alleged violations of NYLL § 191, and that, even if Plaintiff and the putative Class Members were successful, they would be entitled to lesser damages than alleged. Specifically, Plaintiff’s frequency of payment claim under NYLL § 191 requires that individuals classified as a manual worker be paid their wages not later than seven days of when their wages were earned. Although there is no dispute that the Class Members were paid every two weeks, Defendant would have challenged, among other things, whether the Class Members, or possibly particular categories of Class Members, qualify as manual workers under the NYLL. Defendant would also likely challenge, among other things, whether certain categories of employees covered by the Class are sufficiently similarly-situated to constitute Class Members. If successful, Defendant’s various arguments (which Plaintiff disputes) could possibly limit the number of Class Members covered by the lawsuit or defeat the NYLL § 191 class claim in its entirety. Additionally, Defendant is likely to assert certain legal defenses, including a claim that there is no private right of action for violations of NYLL § 191. Plaintiff and Defendant staunchly disagree over whether a private right of action exists for claims under NYLL § 191, which Plaintiff contends exists pursuant to Appellate Division case law and subsequent decisions by other courts. The parties also dispute the proper remedy for violation of NYLL § 191, if Plaintiff were to be successful at trial. If successful, Defendant’s legal arguments could defeat the NYLL § 191 class claim in its entirety or dramatically reduce the amount of damages awarded to Plaintiff and the Class Members at trial. As such, the parties’ settlement appropriately reflects both the strengths and substantial risks that Plaintiff and the Class Members face with respect to establishing both liability and the amount of damages owed to them and Defendant’s strengths and risks regarding establishing their defenses. 5 6 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 2. Certification of the Settlement Class is Appropriate Plaintiff alleges that Defendant uniformly violated the NYLL with respect to all Class Members by failing to pay Plaintiff and the Class Members their wages earned weekly, or not later than seven days of when the wages were earned, as required by NYLL § 191. Exhibit D to Barnhorn Aff. These violations arise from Plaintiff’s contentions that, inter alia, Defendant failed to classify the Plaintiff and putative Class Members as manual workers and paid the Plaintiff and putative Class Members every two weeks, rather than weekly, in violation of the NYLL. As such, the instant motion seeks an Order pursuant to Article 9 of the CPLR certifying a Class comprised of the Plaintiff and those non-managerial, individuals who worked for Defendant as an hourly- paid employees in New York State at any time during June 6, 2016 through March 15, 2022, and who were manual workers under NYLL §191, except for any employee who agreed to arbitrate any employment-related disputes with the Defendant, as determined by Defendant in good faith based upon business records, or any employee who has otherwise signed a release of claims against the Defendant. Exhibit A, at ¶¶ 1.8, 1.35, 1.37 to Barnhorn Aff. The proposed settlement Class satisfies each of the five statutory requirements of CPLR § 901 and the factors in CPLR § 902. See, e.g., Pludeeman v. Northern Leasing Systems, Inc., 74 A.D.3d 420, 421-422 (1st Dep’t 2010) (citing Weinberg v. Hertz Corp., 116 A.D.2d 1, 4 (1st Dep’t 1986), aff’d, 69 N.Y.2d 979 (1987)); Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191 (1st Dep’t 1998)); see also Ryan, 2012 Misc. LEXIS 5513, at *1-2 (provisionally certifying class for settlement purposes). Thus, for the reasons set forth below, the proposed settlement class should be certified. 6 7 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 a. The Class Certification Statute Should be Liberally Construed It is well established that in deciding whether to certify a class, “a court must be mindful of [the Appellate Division’s] holding that the class certification statute should be liberally construed.” Kudinov v. Kel-Tech Construction Inc. 65 A.D.3d 481, 481 (1st Dep’t 2009) (citing Englade v. Harper Collins Publs., Inc., 289 A.D.2d 159, 159 (1st Dep’t 2001)); see also Pruitt v. Rockefeller Center Props., Inc., 167 A.D.2d 14, 21 (1st Dep’t 1991) (“[a]ppellate courts in this state have repeatedly held that the class action statute should be liberally construed…any error, if there is to be one, should be…in favor of allowing the class action”); Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 90-92 (2nd Dep’t 1980); Galdamez v. Biordi Construction Corp., 2006 WL 2969651 (Sup. Ct. N.Y. Cnty. Oct. 17, 2006), aff’d, 855 N.Y.S.2d 104 (1st Dep’t 2008); Pajaczek v. Cema Const. Corp., 18 Misc.3d 1140(A), at *2 (Sup. Ct. N.Y. Cnty. Feb. 21, 2008) (citing Brandon v. Chefetz, 106 A.D.2d 162, 168 (1st Dep’t 1985)). The flexible scheme of Article 9 was enacted to replace the previously rigid and undesirable restrictions that existed under former law. This legislative intent was acknowledged in Brandon v. Chefetz: In his scholarly and persuasive opinion in Friar v. Vanguard Holding [cited above as 78 A.D.2d 83 (2d Dep’t 1980)], Justice Lazer stated that the criteria for class certification “should be broadly construed not only because of the general command for liberal construction of all CPLR sections (see CPLR 104), but also because it is apparent that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it.” 106 A.D.2d at 168. Class certification is routinely granted in wage and hour actions in the State of New York. See, e.g., Steko v. RLI Ins. Co., 121 A.D.3d 542 (1st Dep’t 2014) (quoting Nawrocki v. Proto Construction and Development Corp., 82 A.D.3d 534, 536 (1st Dep’t 2011)) (“We note that, as we have previously held, a class action is the ‘superior vehicle’ for resolving wage disputes ‘since 7 8 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 the damages allegedly suffered by an individual class member are likely to be insignificant, and the costs of prosecuting individual actions would result in the class members having no realistic day in court’”); Dabrowski v. Abax Inc., 84 A.d.3d 633, 635 (1st Dep’t 2011) (citations omitted) (class action “is superior to the prosecution of individualized claims” in action to recover unpaid wages); Pesantez v. Boyle Env. Servs., Inc., 251 A.D.2d 11, 12 (1st Dep’t 1998) (citation omitted) (class action is the “best method of adjudicating” wage and hour disputes); see also, e.g., Williams v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Oct. 19, 2022) (See Dkt. No. 23) (conditionally certifying class of non-managerial employees performing patient care, housekeeping, maintenance, dishwashing, and food service/preparation in rehabilitation facilities with respect to claims under NYLL § 191); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Sept. 27, 2022) (See Dkt. No. 9) (conditionally certifying class of warehouse workers with respect to claims under NYLL § 191); Sorin v. Peloton Interactive, Inc., Docket No. 611560/2021 (Sup. Ct. Nassau Cnty. Dec. 2, 2021) (See Dkt. No. 16) (conditionally certifying class of non-managerial field and warehouse workers with respect to claims under NYLL § 191); Diaz v. Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Jan. 13, 2021) (See Dkt. No. 13) (conditionally certifying class of non-managerial warehouse workers with respect to claims under NYLL § 191); Velasquez v. 2158 Restaurant Corp., Index No. 613562/2020 (Sup. Ct. Nassau Cnty. Feb. 1, 2021) (See Dkt. No. 12) (conditionally certifying class of non-managerial restaurant workers for settlement purposes in case alleging multiple wage violations under the NYLL); Medina v. Neri’s Bakery Products, Inc., Index. No. 22916/2019 (Sup. Ct. Bronx Cnty. Oct. 1, 2019) (See Dkt. No. 14) (conditionally certifying class of non-managerial factory workers in commercial bakery for settlement purposes in case alleging failure to pay spread of hours 8 9 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 compensation under the NYLL); Ryan 2012 N.Y. Misc. LEXIS 513, at *1-2 (conditionally certifying class of servers and runners for settlement purposes in case alleging violations of the NYLL); Krebs v . The Canyon Club, 880 N.Y.S.2d 873 (Sup. Ct. Westchester Cnty. Jan. 2, 2009) (certifying class of service employees at defendants’ catering facilities where plaintiffs alleged violation of the NYLL); Ramirez v. Mansions Catering, Inc., 2008 WL 6135949 (Sup. Ct. N.Y. Cnty. Apr. 27, 2008), aff’d, 74 A.D.3d 490 (1st Dep’t 2010) (certifying class of employees who work at defendants’ restaurant and catering facilities who alleged defendants violated the NYLL). In these cases, courts have found that all requirements of CPLR §§ 901 and 902 have been met by workers suffering wage and hour violations based on allegedly improper wage-and-hour practices used by their employers. Accordingly, certification of the instant settlement class is proper. Moreover, though the instant action clearly meets the requirements for class certification, as demonstrated below, any doubts must be resolved in favor of class certification. Pruitt, 167 A.D.2d at 21 (“any error, if there is to be one, should be…in favor of allowing the class action”); Friar, 78 A.D.2d at 90-92; Brandon,106 A.D.2d at 168. b. This Action Satisfies All of the Prerequisites of CPLR § 901 CPLR § 901(a) provides that one or more members of a class may sue as representative parties on behalf of a class if: 1. The class is so numerous that joinder of all members whether otherwise required or permitted is impracticable [“numerosity”]; 2. There are questions of law or fact common to the class which predominate over any question affecting only individual members [“predominance”]; 3. The claims or defenses of the representative parties are typical of the claims or defenses of the class [“typicality”]; 4. The representative parties will fairly and adequately protect the interests of the class [“adequacy”]; and 9 10 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 5. A class action is superior to other available methods for the fair and efficient adjudication of the controversy [“superiority”]. i. The Class is so Numerous that Joinder of All Members is Impracticable CPLR § 901(a)(1) requires the class to be so numerous that joinder of all class members is impracticable. Courts have held the general threshold for impracticability of joinder to be around 40, although numerosity has been satisfied with less than 40 class members. See e.g., Pesantez, 251 A.D.2d 11. Here, based on the prior discovery, there are approximately 456 Class Members, well in excess of the forty-person threshold. Under these circumstances, joinder is both impracticable and undesirable, and the “numerosity” requirement has clearly been satisfied. ii. Questions of Law and Fact Common to the Class Predominate Over any Possible Question Affecting Only Individual Class Members “To satisfy this requirement, plaintiffs must show that ‘the nature of the claims is such as to indicate a predominance of common issues of law and fact over individual questions of damages.’” Weinstein v. Jenny Craig Operations, Inc., 41 Misc. 3d 1220(A), at *3 (Sup. Ct. N.Y. Cnty. 2013) (quoting Pesantez v Boyle Environmental Servs., Inc., 251 A.D.2d 11, 12 (1st Dep’t 1998)); Borden v. 400 East 55th Street Assocs., LP., 24 N.Y.3d 382, 399 (2014) (“[T]he predominant legal question involves one that applies to the entire class.”). This standard requires “predominance, not identity or unanimity, among class members” and has been satisfied in other NYLL cases where defendants use a common scheme to affect the wages of its employees and the legality of that scheme is called into question. Krebs, 880 N.Y.S.2d 873 at *6 (citing Friar, 78 A.D.2d at 98) (holding that the difference in the manner in which the defendants obtained money from potential class members does not mean that the individual questions predominate over common questions); see, e.g., Williams v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Oct. 19, 2022) (See Dkt. No. 23) (conditionally certifying 10 11 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 class of non-managerial employees with respect to claims under NYLL § 191 where common pay scheme applied to all class members); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Sept. 27, 2022) (See Dkt. No. 9) (conditionally certifying class of warehouse workers with respect to claims under NYLL § 191 where common pay scheme applied to all class members); Sorin v. Peloton Interactive, Inc., Docket No. 611560/2021 (Sup. Ct. Nassau Cnty. Dec. 2, 2021) (See Dkt. No. 16) (conditionally certifying class of non-managerial field and warehouse workers with respect to claims under NYLL § 191 where common pay scheme applied to all class members); Diaz v. Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Jan. 13, 2021) (See Dkt. No. 13) (conditionally certifying class of non-managerial warehouse workers with respect to claims under NYLL § 191 where common pay scheme applied to all class members); Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543 (1st Dep’t 2014) (citing Orgill v. Ingersoll-Rand Co., 110 A.D.3d 573, 574 (1st Dep’t 2013)) (finding commonality where all class members shared causes of action that defendant failed to pay the appropriate wages and benefits); Weinstein, 41 Misc. 3d 1220(A), at *3 (finding commonality where plaintiffs alleged that they were subjected to uniform time keeping practices); Ryan, 2012 N.Y. Misc. LEXIS 5513, at *2 (finding that the action seeking unpaid gratuities satisfied all prerequisites of CPLR § 901); Cherry v. Resource Am., Inc., 15 A.D.3d 1013 (4th Dep’t 2005) (certifying a class and finding that common questions of law and fact predominated because defendants used a common method to manipulate the calculation of royalties). “The fundamental issue…is whether the proposed class action asserts a common legal grievance, i.e., whether the common issues predominate over or outweigh the subordinate issues that pertain to individual members of the class.” Geiger v. American Tobacco Co., 181 Misc. 2d 875, 883 (Sup. Ct. Queens Cnty. 1999) (quoting 3 Weinstein- Korn- Miller, N.Y. Civil Practice § 11 12 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 901.11); see also Pesantez, 251 A.D.2d at 12 (citing Pruitt, 167 A.D.2d at 22)). Whether common questions of law or fact predominate “should not be determined by any mechanical test, but rather, whether the use of a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated.” Friar, 78 A.D.2d at 97 (internal punctuation omitted). In determining whether the claims of the Plaintiff and putative Class Members share common questions of law or fact, “factual identity between the Plaintiff[s’] claim and those of the class [they] seek[] to represent is not necessary if these claims arise, at least in part, from a common wrong or set of wrongs regardless of individual factors.” Pajaczek, 18 Misc.3d 1140(A), at *4 (citing Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir. 1975)). “The statute clearly envisions authorization of class actions even when there are subsidiary questions of law or fact not common to the class.” Krebs, 880 N.Y.S.2d at *6 (citing Weinberg, 116 A.D.2d at 6); Borden, 24 N.Y.3d at 399 (“It should be noted that the legislature enacted CPLR 901(a) with a specific allowance for class actions in cases where damages differed among the plaintiffs, stating the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class if the important legal or factual issues involving liability are common to the class.”) (internal quotation marks and citation omitted). Here, Plaintiff and Class Members are unified by common legal and factual allegations, namely that the Defendant allegedly violated the NYLL with respect to all Class Members by failing to pay Class Members their wages earned weekly, or not later than seven days of when the wages were earned, as required by NYLL § 191. Thus, Plaintiff possesses a viable class cause of action under the NYLL that is common to all Class Members. 12 13 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 Indeed, the questions of law and fact concerning Defendant’s alleged practice of failing to timely pay wages earned on a weekly basis, which Plaintiff alleges subjects Defendant to liability and damages for violations under the NYLL, involve not merely common questions but involve identical questions. Plaintiff contends that the harm which Plaintiff allegedly suffered is identical to the harm allegedly suffered by every putative Class Member pursuant to Defendant’s compensation practice, namely, that Defendant failed to timely pay all putative Class Members their wages earned on a weekly basis as required by NYLL § 191. As such, the issues presented here can only be effectively decided on a class-wide basis since the central issue is whether the Defendant’s practice with regard to its decision not to classify Plaintiff and the putative Class Members as manual workers, and its practice of paying Plaintiff and the putative Class Members their wages earned bi-weekly, is lawful. Plaintiff takes the position that if Defendant were determined to be liable to one Class Member, Defendant would be liable to all Class Members. iii. Plaintiff’s Claims are Typical of the Claims of the Class CPLR § 901(a)(3) requires that the Plaintiff’s causes of action be typical of the proposed class. The typicality requirement is satisfied when the Plaintiff’s causes of action “derive[] from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory…” Friar, 78 A.D.2d at 99 (citing CPLR § 901(a)(3)); Pajaczek, 18 Misc.3d 1140(A), at *4; Galdamez, 2006 WL 2969651, at *3 (quoting Pruitt, 167 A.D.2d at 22). The essence of typicality is that the representative party must have an individual cause of action and that the representative’s interest must be closely identified with that of the class members. See 2 Weinstein, Korn & Miller, N.Y Civ Practice, § 901.09; Fed. R. Civ. P. 23(a)(3). To determine typicality, “it is not necessary that the claims of the named plaintiffs be identical to those of the class.” Super Glue v. Avis Rent-A-Car System, Inc., 132 A.D.2d 604, 607 13 14 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 (2d Dep’t 1990); Morrissey v. Nextel Partners, Inc., 22 Misc. 3d 1124(A), at *10 (Sup. Ct. Albany Cnty. 2009) (quoting Pruitt,167 A.D.2d at 22) (“Typicality is satisfied so long as the named plaintiffs’ claims ‘arise[] out of the same course of conduct as the class members’ claims and [are] based on the same cause[s] of action’”). Nevertheless, the “plaintiffs’ claims must not be antagonistic to or in conflict with the interest of other class members.” Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 93 Misc.2d 941, 945 (Sup. Ct. N.Y. Cnty. 1978). Where an alleged defense may affect an individual’s right to recover but does not affect the liability issues for the class, this defense does not make the Plaintiff’s cause of action atypical. See Lessard v. Metropolitan Life Ins. Co., 103 F.R.D. 608, 613 (D. Me. 1984). In this case, Plaintiff’s claims are typical of the claims of the Class Members that he seeks to represent. Plaintiff and Class Members all worked as non-managerial hourly-paid employees – working as warehouse associates and yard workers, shop pipe welders, delivery drivers, counter sales representatives, and in other similarly situated positions – in New York, and all were allegedly manual workers that were paid every two weeks, rather than being paid weekly. Thus, it is clear that typicality is present because the (i) causes of action of Plaintiff and all other members of the putative Class arise from the same alleged conduct; (ii) Plaintiff and the putative Class Members suffered from the same wrong allegedly committed by Defendant for which Defendant is allegedly liable; and (iii) Plaintiff’s and Class Members’ claims are based on the same legal theory. See, e.g., Weinstein, 41 Misc. 3d 1220(A), at *4 (finding typicality where the plaintiffs’ and class members’ wage and hour cause of action arose out of the same course of conduct); Ryan, 2012 N.Y. Misc. LEXIS 5513, at *2 (finding that plaintiffs’ cause of action for unpaid service charges satisfied the typicality requirement for settlement purposes); Galdamez, 2006 WL 14 15 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 2969651, at *3 (plaintiffs’ claims typical where they arise out of the same course of conduct as class members’ claims and are based on the same cause of action). iv. Plaintiff Will Fairly and Adequately Protect the Interests of the Class CPLR § 901(a)(4) requires that a class representative is “part of the class and possess[es] the same interest and suffer[s] the same injury as the class members.” Weinstein, 41 Misc. 3d 1220(A), at *4. Adequacy of representation further requires that “counsel for the named Plaintiffs be competent and that the interests of the named Plaintiffs and the members of the class not be adverse.” Pajaczek, 18 Misc.3d 1140(A), at *4 (citing Pruitt, 167 A.D.2d at 24). Here, Plaintiff stands to gain a pecuniary benefit through the successful prosecution of this action. Plaintiff seeks the same relief as all other Class Members – to receive damages for alleged violations of NYLL § 191. As such, Plaintiff stands to maximize his recovery by maximizing the recovery of the entire Class.2 Under such circumstances, Plaintiff’s interests cannot be adverse to the Class as his interests are wholly identical to the Class. Furthermore, Plaintiff is familiar with the lawsuit, has been actively involved in the litigation and settlement, and is fully aware of his claims, as well as the claims of the Class Members that he seeks to represent. 2 Notably, Plaintiff intends to seek approval of a service award in an amount up to $30,000. See Exhibit A, at ¶¶ 1.31- 1.32, 3.6. However, Plaintiff stands to gain the best recovery by maximizing the settlement sum available to the Class that he will share in as a fellow Class Member. See Exhibit A, at ¶¶ 1.3, 1.7, 1.19-1.20, 1.35, 3.2, 3.4, to Barnhorn Aff. Additionally, this service award is well within the range that Courts have approved in other lawsuits. See Fernandez v. Legends Hospitality, LLC, Index No. 152208/2014, Dkt. No. 41 at Pgs. 4-7 (Sup. Ct. N.Y. Cnty. June 22, 2015) (noting that class representatives undertake risk to future employment by filing employment class actions and collecting cases approving of service awards of up to $45,000 in wage and hour matters); Sewell v. Bovis Lend Lease, Inc., 2012 WL 1320124, at *14-15 (S.D.N.Y April. 16, 2012) (noting that class representatives undertake risk to future employment by filing employment class actions and collecting cases approving of service awards of $10,000 to $85,000, as well as certain even higher awards); Matheson v. T–Bone Rest., LLC, 2011 WL 6268216, at *9 (S.D.N.Y. 2011) (approving a service award of $45,000.00 for a class representative in a wage and hour action); Willix v. Healthfirst, Inc., 2011 WL 754862, at *7 (E.D.N.Y. Feb. 18, 2011) (finding service award in wage and hour action of $30,000.00 to be reasonable); Mentor v. Imperial Parking Sys., Inc., 2010 WL 5129068, at *1-2, *5 (S.D.N.Y. Dec. 15, 2010) (granting $40,000 service award in wage and hour action); Frank, 228 F.R.D. at 187-188 (noting that class representative undertakes risk to future employment by filing employment class actions). 15 16 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 Additionally, Plaintiff is represented by counsel experienced in class actions and labor and employment law, and who have been appointed as class counsel in other wage and hour matters, including class action litigations that asserted the same claim as the Class Members in the current matter. See Barnhorn Aff. at ¶¶ 24-32. Thus, the adequacy requirement is met. See Borden, 24 N.Y.3d at 399-400 (upholding certification where the court “found no substantiated conflicts between the [class members] and a representative with adequate understanding of the case, and competent attorneys.”) (internal question marks and citations omitted). v. A Class Action is Superior to the Other Available Methods to Resolve this Dispute In accordance with CPLR § 901(a)(5), numerous courts have concluded that a class action is the superior method for resolving a plaintiff’s claim that he and putative class members were subjected to an improper wage and hour practice. See, e.g., Williams v. Sunrise Senior Living Management, Inc., Index No. 603289/2022 (Sup. Ct. Nassau Cnty. Oct. 19, 2022) (See Dkt. No. 23) (finding all requirements of CPLR § 901 satisfied and conditionally certifying class of non- managerial employees with respect to claims under NYLL § 191); Galeas v. Amneal Pharmaceuticals of New York, LLC, Index No. 607658/2022 (Sup. Ct. Nassau Cnty. Sept. 27, 2022) (See Dkt. No. 9) (finding all requirements of CPLR § 901 satisfied and conditionally certifying class of warehouse workers with respect to claims under NYLL § 191); Sorin v. Peloton Interactive, Inc., Docket No. 611560/2021 (Sup. Ct. Nassau Cnty. Dec. 2, 2021) (See Dkt. No. 16) (finding all requirements of CPLR § 901 satisfied and conditionally certifying class of non- managerial field and warehouse workers with respect to claims under NYLL § 191); Diaz v. Paramount Beauty Distributing Associates, Inc., Index No. 606165/2020 (Sup. Ct. Suffolk Cnty. Jan. 13, 2021) (See Dkt. No. 13) (finding all requirements of CPLR § 901 satisfied and conditionally certifying class of non-managerial warehouse workers with respect to claims under 16 17 of 23 FILED: NASSAU COUNTY CLERK 05/11/2023 09:44 PM INDEX NO. 607329/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/11/2023 NYLL § 191); Stecko, 121 A.D.3d at 543; Krebs, 22 Misc.3d 1125(A), at *12, 14-16; Pesantez, 251 A.D.2d at 11-12; Nawrocki, 82 A.D.3d at 536; Brandy v. Canea Mare Contr., Inc., 34 A.D.3d 512 (2d Dep’t 2006); Galdamez, 2006 WL 2969651, at *4; Pajaczek, 18 Misc.3d 1140(A). The class action method is particularly effective in wage and hour cases, such as the instant action. See Krebs, 22 Misc.3d 1125(A), at *16 (“It is obvious that the prosecution of separate actions by each affected member of the…wait staff would be highly impracticable and very inefficient…It is likely that the same patrons would be subject to repeat depositions and trials.”). These common issues can be most efficiently and economically addressed on a class-wide basis. See In re “Agent Orange” Product Liability Litig., 506 F. Supp. 762, 787-788 (E.D.N.Y. 1980) (when common issues predominate, courts generally find the class procedure to be the best and only realistic means of disposing of a large number of claims arising out of the same operative facts). Subjecting the Court and the litigants to the expense and time of multiple trials would be wasteful and resolving the common issues on a class-wide basis will create a uniform resolution of the issues, thereby providing the framework for the adjudication or settlement of whatever individual damage issues remain. Friar, 78 A.D.2d at 97. Employing the class device here will achieve economies of scale for the putative Class Members, conserve judicial resources, and preserve public confidence in the system by avoiding repetitive proceedings and preventing inconsistent adjudications where the Class Members were all subject to a common compensation policy. Accordingly, a class action is clearly superior to any alternative means of obtaining relief for the Class Members. Borden, 24 N.Y.3d at 400 (“[T]o preserve judicial resources, class certification is superior to having these claims adjudicated individually.”). 17