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FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LESLIE CORTES, individually and on behalf of others
similarly situated,
Index No.: 154853/2018
Plaintiffs,
- against -
PACIFIC LANGHAM NEW YORK CORPORATION
d/b/a LANGHAM PLACE FIFTH AVENUE; and any
other related entities,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION
FOR APPROVAL OF THE PROPOSED SETTLEMENT,
CERTIFICATION OF THE SETTLEMENT CLASS,
APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL, AND
APPROVAL OF THE PARTIES’ PROPOSED NOTICE AND CLAIM FORM & RELEASE
Brett R. Cohen, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, New York 11514
T: (516) 873-9550
bcohen@leedsbrownlaw.com
Attorneys for Plaintiff & the Settlement Class
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PRELIMINARY STATEMENT
Subject to this Court’s approval, Proposed Class Representative Cigdem Metin, on behalf
of Plaintiff Leslie Cortes (“Named Plaintiff”) and a putative class of individuals she seeks to
represent (collectively “Plaintiffs”), and Defendants Pacific Langham New York Corporation and
any other related entities (collectively “Defendants” or “Pacific Langham”) (Plaintiffs and
Defendants are collectively the “Parties” and each individually a “Party”) have settled this wage
and hour class action. The proposed settlement satisfies all of the criteria for approval. Plaintiffs
respectfully request that the Court: (1) grant approval of the Settlement Agreement (as defined
below), (2) certify for settlement purposes only the settlement class pursuant to N.Y. C.P.L.R. §§
901 and 902; (3) appoint Plaintiffs’ Counsel as Class Counsel; (4) approve the Notice of Settlement
of Class Action Lawsuit and Claim Form and Release; (5) direct counsel for the respective Parties
to effectuate the terms of the Settlement Agreement; and (6) any other further relief the Court
deems just and proper. Although Defendants vigorously deny any and all wrongdoing, Defendants
do not oppose this motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is an action pursuant to New York Labor Law Article 6 § 196-d and 12 New York
Codes, Rules and Regulations (“NYCRR”) Part 146 during the period beginning July 2013 through
the May 23, 2018 (the “Settlement Period”). Specifically, Plaintiffs allege that Defendants assessed
a mandatory “service charge” or “administrative fee” on forms and promotional materials given to
customers, and did not properly disclaim to customers that this mandatory charge was not a gratuity
and, as such, would not be distributed to the service staff. Defendants deny Plaintiffs’ claims in
their entirety and do not admit to any wrongdoing whatsoever.
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II. SUMMARY OF THE SETTLEMENT TERMS
A. “Class,” “Settlement Class,” or “Settlement Class Member”
“Class”, “Settlement Class”, or “Settlement Class Member” (individually, “Class
Member”) means all individuals who, according to Defendants’ reasonably accessible records and
those of its third-party service provider, performed service work at catered events held at Langham
Place Fifth Avenue from July 2013 through May 23, 2018, in such trades, classifications, and
professions that customarily receive gratuities, including but not limited to servers, waiters,
banquet servers, bussers, bartenders, captains, and runners, and whose names appear on the Class
List. Affirmation of Attorney Brett R. Cohen (“Cohen Aff.”), at Ex. A § 1.32.
B. Settlement Agreement or Agreement
“Settlement Agreement” or “Agreement” means the Parties’ Settlement Agreement and
Release and the exhibits thereto (Cohen Aff. Ex. A), which the Parties understand and agree sets
forth all material terms and conditions of the Settlement between them, and which is subject to
Court approval. “Settlement” means the settlement between the Parties embodied and contained
in the Agreement. Cohen Aff. Ex. A.
C. Authorized Claimant(s)
“Authorized Claimant(s)” means each Class Member, or the authorized legal representative
of such Class Member, who timely files a Claim Form in accordance with the terms of this
Agreement, and who is therefore entitled to receive a Settlement Check. Named Plaintiff is deemed
an Authorized Claimant upon execution of the Agreement and need not return a Claim Form.
Cohen Aff. Ex. A § 1.3.
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D. Released Class Claims
“Released Class Claims” means any and all New York state and local claims, including
any wage and hour claims, obligations, demands, actions, rights, causes of action, and liabilities
against Defendant, of whatever kind and nature, character and description, whether known or
unknown, and whether anticipated or unanticipated, including unknown claims that accrued or
accrue on any date up through the Effective Date, for any type of relief under New York state or
local law that arose from or are in any way related to any Defendant, including, without limitation,
claims under any legal theory for failure to pay minimum wage, failure to pay overtime, failure to
pay for all hours worked, failure to provide meal and rest periods, failure to timely pay final wages,
failure to reimburse for business expenses, and/or failure to furnish accurate wage statements,
wage notices or other notices, and any and claims for recovery of compensation, overtime pay,
minimum wage, premium pay, interest, and/or penalties, and any related or derivative claims, other
penalties, related tort and punitive damages, including, but not limited to, all claims alleged in the
Complaint, claims based on, or under, New York State law, the Hospitality Wage Order, and/or
common law, and statutory, constitutional, contractual, or common law claims for unpaid
gratuities, service charges, administrative charges, tips, interest on such claims, penalties,
damages, liquidated damages, attorney’s fees, expenses, disbursements, litigation costs and fees,
restitution, or equitable relief Cohen Aff. Ex. A § 1.28.
E. Notice Response Deadline & Acceptance Period Date
The “Notice Response Deadline” or “Bar Date” means the last day of the Acceptance
Period (defined below) in which Class Members can timely complete and submit their Claim Form
and Release or opt out of the Settlement. The “Acceptance Period” means the sixty (60) day period
beginning from the date of the first mailing of the Notice and the Claim Form and Release, during
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which a Class Member can submit a Claim Form and Release to receive a Settlement Check. Cohen
Aff. Ex. A §§ 1.1, 1.21.
F. Gross Potential Settlement Amount
“Gross Potential Settlement Fund” means Six Hundred Seventy-Five Thousand Dollars
($675,000.00), which is a maximum, capped amount that Defendants will be responsible for
paying to settle the Action if each and every Authorized Claimant submits a timely Claim Form
resulting in the payment of claims equaling one hundred percent (100%) of the Net Settlement
Fund and the Settlement is not terminated, canceled or fails to become effective for any reason,
and which includes all Costs and Fees and all other payments referenced in this Agreement. Cohen
Aff. Ex. A § 1.16.
G. Qualified Settlement Account
“Qualified Settlement Account” or “QSF” means the account to be established and
controlled by the Claims Administrator for the purpose of retaining and distributing the Gross
Individual Settlement Amount payments to Class Members who opt-in, in accordance with this
Agreement. Cohen Aff. Ex. A § 1.26.
H. Individual Gross Settlement Amount
“Individual Gross Settlement Amount” means the pre-tax amount allocated to each
Authorized Claimant who submits a timely Claim Form. Cohen Aff. Ex. A § 1.17.
I. Net Settlement Amount
“Net Settlement Amount” means the aggregate of all Individual Gross Settlement Amounts
to be distributed to all Authorized Claimants, after the deduction of Court-approved Costs and
Fees and Employment Taxes and Court-approved Service Awards. Cohen Aff. Ex. A § 1.19.
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J. Order Granting Approval
“Order Granting Approval” or “Approval Order” means the Order to be entered by the
Court, which, inter alia, approves the terms and conditions of this Agreement, authorizes
distribution of the Settlement Checks and the Service Payment, approves distribution of Costs and
Fees, and dismisses the Action with prejudice. Cohen Aff. Ex. A § 1.24.
K. Attorneys’ Fees, Litigation Costs, and Service Award
Plaintiffs’ Counsel seeks an award from the Gross Potential Settlement Amount of no more
than Two Hundred Twenty-Five Thousand Dollars and Zero Cents ($225,000.00), which
represents one-third (⅓) of the Gross Potential Settlement Fund, as an amount that will cover an
award of attorneys’ fees to Class Counsel,1 plus up to $7,5000 for actual expenses incurred.2
Additionally, in return for services rendered to the Settlement Class, Class Counsel seeks, and
Defendants do not oppose, payment of a Service Award to the Named Plaintiff and Class
Representative Cigdem Metin of up to Seven Thousand Five Hundred Dollars and Zero Cents
($7,500.00) in total.3 Cohen Aff. Ex. A §§ 3.3, 3.4.
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A request for fees of one-third of the Gross Settlement Fund is “well within the range of reasonableness and within
the percentage regularly approved in class action and wage and hour suits.” Lopez v. Dinex Grp., 2015 NY Slip Op
31866(U) (Sup. Ct. N.Y. Cty., Oct. 6, 2015) at ¶ 22 (listing cases where one-third or more of fund was approved for
attorneys’ fees); see also Villasin v. American Yacht Club, Index No. 608975/2017 (Sup. Ct. Nassau Cty., Jan. 10,
2019) (J. Mahon) (approving one-third of the fund as fees); Salzmann v. Metropolis Country Club, Inc., Index No.
608527/2017 (Sup. Ct. Nassau Cty., Dec. 18, 2018) (J. Brown) (same).
2
“Courts typically allow counsel to recover their reasonable out-of-pocket expenses.” In re Energy Holdingss PLC
Sec. Litig., 302 F. Supp. 2d 180, 183 n. 3 (S.D.N.Y. 2003)
3
A service award of $7,500 in total to these two individuals as requested here, is well within the range of those
typically approved by Courts. See e.g., Villasin v. American Yacht Club, Index No. 608975/2017 (Sup. Ct. Nassau
Cty., Jan. 10, 2019) (J. Mahon) (approving service award of $7,500 to one individual class representative); Membrives
v. Platinum Affairs, Ltd., Index No. 603295/2016 (Sup. Ct. Nassau Cty., Oct. 16, 2018) (J. Galasso) (same).
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L. Final Effective Date
“Final Effective Date” means, the later of: (i) 45 days following the expiration of the Notice
Response Deadline; or (ii) if an appeal of the Approval Order is timely filed, 30 days after the date
of any of the following occurrences: (1) any appeal from the Approval Order has been finally
dismissed; (2) the Approval Order has been affirmed on appeal in a form substantially identical to
the form of the Approval Order entered by the Court; (3) the time to petition for review with respect
to any appellate decision affirming the Approval Order has expired; and (4) if a petition for review
of an appellate decision is filed, the petition has been denied or dismissed, or, if granted, has
resulted in affirmance of the Approval Order in a form substantially identical to the form of the
Approval Order entered by the Court. Cohen Aff. Ex. A § 1.14.
III. THE SETTLEMENT AGREEMENT REFLECTS A FAIR,
REASONABLE COMPROMISE
The Settlement Agreement, Cohen Aff. Ex. A, represents a substantial recovery and
reflects a compromise of the risks, claims, and defenses, in this matter. Each aspect of the
Settlement Agreement reflects a series of reasonable compromises to ensure that the Settlement
Class would collect portions of gratuities that they were allegedly owed without the risk, time, and
expense of litigating a class action, subject to numerous claims and defenses. The Settlement
Agreement itself was negotiated and agreed upon by experienced attorneys, working at arm’s-
length, to protect their respective clients and reach a resolution that is legally and factually
supported. Moreover, experienced and reputable mediator Martin F. Scheinman, Esq. mediated
this matter, ultimately culminating in its resolution. Cohen Aff. Ex. F.
Significantly, and unlike many other NYLL § 196-d cases that have been approved by
Courts in New York State Supreme Court, Defendants had several unique defenses in this case,
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including that Defendants represented a significant portion of the mandatory charges were in fact
adequately disclaimed in accordance with applicable law, and that a substantial number of putative
class members were not, in fact, “employees” of Defendants for purposes of the NYLL and
therefore they were not liable for any such alleged damages on the part of such individuals. In
addition, Defendants represented that Plaintiff Cortes did not maintain standing to prosecute his
claims and/or would not be an “adequate” class representative as she was not employed as an
employee of Defendant; but rather, was an employee of The Supporting Cast or an independent
contractor.
Despite these unique risks associated with this action, and despite the traditional risks of
litigating any class action under NYLL, Plaintiffs secured a Settlement Agreement that established
a claims-made Gross Potential Settlement Fund of Six Hundred Seventy-Five Thousand Dollars
and Zero Cents ($675,000.00), inclusive of attorneys’ fees, costs and expenses.
This represents a significant potential recovery to all members of the Settlement Class
pursuant to the terms of the Settlement Agreement, subject only to them returning a signed Claim
Form and Release by the Bar Date – and requiring no further time commitment on their part. See
Cohen Aff. Ex. A § 2.4.
Gross Potential Settlement Fund Affords Class Members Significant Relief
The Gross Potential Settlement Fund as set forth in the Settlement Agreement affords the
Settlement Class a significant recovery compared to the recovery the Settlement Class could have
hoped to receive had this case proceeded to trial, and had Plaintiffs prevailed on all of their legal
and factual arguments.
The settlement figure is substantial when considering the Defendants’ assessment and
retention of mandatory charges (i.e. service or administrative charges) during the relevant period
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for which they did not include an adequate disclaimer. To wit, Defendants represent that should
the matter proceed in a contested litigation, their representatives would have testified to customers
being made verbally aware that the charges in question were not gratuities.
Plaintiffs’ potential recovery could be further limited if this action were to proceed to trial
as Defendants’ event files, including customer contracts and banquet event orders, specifically
stated that the administrative charges were not gratuities. The presence of such disclaimer
language on such documents could present a significant defense as it pertains to what the
reasonable patron may have believed regarding the purpose of a mandatory charge.
Based upon Defendants’ representations to Class Counsel, we estimate that a significant
percentage of mandatory fees collected in connection with events held at Pacific Langham are
subject to Defendants’ claimed defenses. Therefore, the Gross Potential Settlement Fund
represents a substantial and significant recovery, but especially so given the obstacles Plaintiffs
would have faced in the event this settlement was not reached.
IV. CLASS CERTIFICATION SHOULD BE GRANTED
FOR SETTLEMENT PURPOSES
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 questions 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; 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”].
It is well established that courts routinely grant class certification in wage and hour cases
in the State of New York in the context of 196-d claims based on service charges since Samiento
v. World Yacht, Inc., 9 N.Y.3d 998 (1st Dep’t 2007). See, e.g., Velasquez v. Sunstone Red Oak,
LLC, 2018 N.Y. Misc. LEXIS 4476 (Sup. Ct. Westchester Cty., Aug. 21, 2018) (certifying a class
of banquet workers in an action to recover charges purported to be gratuities under § 196-d);
Medina v. Fairway Golf Mgmt., LLC, Index No. 607829/2015 (Sup. Ct. Nassau Cty., Aug. 4,
2017) (same); Cornejo v. Rose Castle Corp., Index No. 500178/2016 (Sup. Ct. Kings Cty., June
30, 2017) (same); Membrives v. HHC TRS FP Portfolio LLC, 2017 N.Y. Misc. LEXIS 5754 (Sup.
Ct. Nassau Cty., Mar. 10, 2017) (same); Maor v. Hornblower New York, LLC, 2016 N.Y. Misc.
LEXIS 2111 (Sup. Ct. N.Y. Cty., June 13, 2016) (same); see also Griffin v. Aldi, Inc., 16-cv-
00354-LEK-ATB (N.D.N.Y. May 11, 2017); Cataldo v. Morrell Caterers, 12-cv-1690 (JFB)(ARL)
(E.D.N.Y. June 25, 2013) (granting a Rule 23 class of service employees at three permanent
catering locations).
In this case, Plaintiffs seek a class for settlement purposes of all individuals who allegedly
did not receive gratuities owed to them from Defendants during Settlement Period. As set forth
below, Plaintiffs satisfy the requirements of CPLR §§ 901 and 902. For settlement purposes, a
class action is the most efficient, most effective and least costly method of resolving this dispute.
A. Numerosity
Based upon representations from Defendants, the class is believed to contain no fewer than
195 putative Class Members. It is clear that the class is so numerous that joinder of all members
is impracticable. See, e.g., Pesantez v. Boyle Environmental Services, Inc., 251 A.D.2d 11 (1st
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Dept. 1998) (holding that 40 class members was “many more” than required to satisfy numerosity).
For example, Metin testified that Defendants utilized numerous other service workers to perform
the identical jobs and responsibilities as he did. Cohen Aff. Ex. E at ¶ 8 (“For each event, there
were numerous other service workers who performed the same types of jobs as I did, with the same
or similar responsibilities. For example, at a typical large event there could be as many as 10 other
service workers who would work alongside me.”) Extrapolating this number across the entirety
of the relevant period for all catered events leads to the logical conclusion that the class size easily
satisfies the numerosity requirement.
B. Commonality and Predominance
There are common questions of law and/or fact that predominate over questions affecting
only individual members. These common questions include:
Common Factual and Legal Questions:
a) Whether Defendants assessed charges to its customers in the nature of gratuities, as
those terms are defined under the Labor Law and the cases and regulations
interpreting same;
b) Whether Defendants’ patrons made payments to Defendants, or which were received
or retained by Defendants, which reasonable patrons would assume to have been in
the nature of gratuities;
c) Whether Defendants improperly retained gratuities in violation of Labor Law §
196-d and cases interpreting same.
Each of these core issues involves the existence of a common nucleus of operative facts
based on Defendants’ alleged common policies and procedures. Moreover, as all putative class
members were allegedly not paid all gratuities that they were entitled to, the harm that the Named
Plaintiffs allegedly suffered in this case is similar to the harm allegedly suffered by each and every
Class Member. Moreover, each participating Class Member’s settlement damages will be
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calculated in the same manner as all other participating Class Members’ alleged damages.
Commonality and predominance are thus satisfied. See, e.g., Friar v. Vanguard Holding Corp., 78
A.D.2d 83, 90-92, 434 N.Y.S.2d 698, 709 (2d Dept. 1980).
For example, the Named Plaintiff testified that “As compensation for working these events,
I was paid at an hourly rate but did not receive any portion of the mandatory charge … that was
collected by the Pacific Langham.” Cohen Aff. Ex. E ¶ 9. “From my understanding and
interactions, I understood that the other service workers were similarly paid, and they too did not
receive the full portion of the mandatory charge.” Cohen Aff. Ex. E ¶ 10.
C. Typicality
The Named Plaintiff’s claims are typical of the claims of the members of the putative class.
The Named Plaintiff alleges that, like every other member of the class, he was entitled to the
mandatory charge that appeared on Defendants’ forms, contracts, invoices, and promotional
materials. See, e.g., Friar, 78 A.D.2d at 98; Pajaczek v. Cema Constr. Corp., 859 N.Y.S.2d 897
(Sup. Ct. N.Y. Cty., 2008); Galdamez v. Biordi Constr. Corp., 831 N.Y.S.2d 347 (Sup. Ct. N.Y.
Cty., 2006).
D. Fair and Adequate Representation
The Named Plaintiff is represented by Leeds Brown Law, P.C. (“Leeds Brown”) whose
attorneys are experienced in labor and employment law. To wit, in a settlement decision granting
preliminary approval of a class and collective action settlement, the Honorable Alison J. Nathan
noted:
… Leeds Brown Law, P.C. [and co-counsel] are experienced and well-qualified
employment and class action lawyers with expertise in prosecuting and settling
labor law cases. The substantial work that Plaintiffs’ counsel has performed in
investigating, litigating and reaching a settlement in this case demonstrates their
commitment to the class and representing the class’ interests, as well as their
general ability to conduct this litigation…As noted above, [co-counsel and] Leeds
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Brown Law, P.C. have extensive experience in labor law class actions and have
devoted considerable time and effort to litigating and settling this action on behalf
of the class.
Tart v. Lions Gate Entm’t Corp., 2015 U.S. Dist. LEXIS 139266, *7 (S.D.N.Y. October 13, 2015);
Varela v. Building Services Industries, LLC, Index No. 600037/2016 (Sup. Ct. Nassau Cty., June
21, 2018) (“the court finds that class counsel have established their significant experience
prosecuting employment class actions and their work performed in representing the interests of the
class members in this action.”).
Leeds Brown has represented numerous clients in wage and hour litigations under state and
federal law, many of which have settled. See, e.g., Cortes v. Dania Marina, Inc., Index No.
5436/2018 (Sup. Ct. Westchester Cty. Oct. 3, 2019) (J. Walsh); Ascensio v. Dinosaur Restaurant,
LLC, Index No. 154847/2017 (Sup. Ct. N.Y. Cty. Nov. 12, 2019); Robinson v. Access Food &
Beverage, Inc., Index No. 152746/2018 (Sup. Ct. N.Y. Cty. Nov 8, 2019); Posner v. NYS Pool
Management Company, Inc., Index No. 609371/2017 (Sup. Ct. Nassau Cty. Sept. 26, 2019);
Padder v. Logans Sanctuary LLC, Index No. 602455/2018 (Sup. Ct. Nassau Cty. Sept. 16, 2019);
Maria v. Sankara NY, LLC, Index No. 51469/2018 (Sup. Ct. Westchester Cty. Aug. 20, 2019) (J.
Smith); Settecasi v. Michael Scott Catering LLC, Index No. 601994/2018 (Sup. Ct. Nassau Cty.
Aug. 19, 2019); Torres v. Old Oaks Country Club, Inc., Index No. 63047/2017 (Sup. Ct.
Westchester Cty. Aug. 16, 2019) (J. Loehr); Ayasi v. Sirena Restaurant, Inc., Index No.
504596/2019 (Sup. Ct. Kings. Cty. Aug. 7, 2019); Locandro v. Willow Ridge Country Club, Inc.,
Index No. 63740/2017 (Sup. Ct. Westchester Cty. July 16, 2019) (J. Giacomo); McShane v. Foxsco
Inc., Index No. 607129/2017 (Sup. Ct. Nassau Cty. July 8, 2019); Maor v. Volume Service
America, Inc., Index No. 158298/2014 (Sup. Ct. N.Y. Cty. June 6, 2019); Blue v. MDC Tavern
Corp., Index No. 600162/2017 (Sup. Ct. Nassau Cty. May 22, 2019); Fernandez v. Masterpiece
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Caterers, Corp., Index No. 51469/2018 (Sup. Ct. N.Y. Cty. May 7, 2019); Montero v. 333 Bayville
Avenue Restaurant Corp., Index No. 603760/2017 (Sup. Ct. Nassau Cty. May 6, 2019); Maor v.
GAC Caterers, Inc., Index No. 25669/2017 (Sup. Ct. Bronx Cty, May 6, 2019); Villasin v.
Glenarbor Golf Club, LLC, Index No. 608512/2017 (Sup. Ct. Nassau Cty. Apr. 25, 2019); Heale
v. Hickory Ridge Golf & Country Club Inc., Index No. E2017000673 (Sup. Ct. Monroe Cty. Apr.
5, 2019); Salzman v. Coveleigh Club, Inc., Index No. 608525/2017 (Sup. Ct. Nassau Cty. Apr. 2,
2019); Villasin v. American Yacht Club, Index No. 608975/2017 (Sup. Ct. Nassau Cty. Jan. 10,
2019); Salzmann v. Metropolis Country Club, Inc., Index No. 608527/2017 (Sup. Ct. Nassau Cty.
Jan. 7, 2019) (J. Brown); Membrives v. Platinum Affairs, Ltd., Index No. 603295/2016 (Sup. Ct.
Nassau Cty. Oct. 16, 2018); Baez v. Westchester Manor Corp., Index No. 55431/2016 (Sup. Ct.
Westchester Cty. Apr. 17, 2019) (J. Lefkowitz); Bello v. Spring Soho Inc., Index No. 162683/2015
(Sup. Ct. N.Y. Cty. Mar. 6, 2018); Maor v. Paramount Country Club, LLC, Index No. 032284/2016
(Sup. Ct. Rockland Cty. Dec. 18, 2017); Pino v. DHG Management Company, LLC, Index No.
155969/2015 (Sup. Ct. N.Y. Cty. May 31, 2017); Garcia v. Culinart, Inc., Index No, 601978/2015
(Sup. Ct. Nassau Cty. May 24, 2017); Pino v. DHG Management Company, LLC, Index No.
155969/2015 (Sup. Ct. N.Y. Cty. May 3, 2017); Greenfield v. Puig North America Inc., Index No.
157654/2015 (Sup. Ct. N.Y. Cty. Apr. 7, 2017); In re Gentleman’s Quarters Litig., Index No.
603315/2015 (Sup. Ct. Nassau Cty. Mar. 15, 2017); Maor v. IHG Management Maryland LLC,
Index No. 050823/2014 (Sup. Ct. Westchester Cty. Feb. 8, 2016) (J. Lefkowitz); among others.
Further, Named Plaintiff testified that he chose their counsel “because of the success that they have
had in protecting catering, restaurant, and hotel workers…” Cohen Aff. Ex. E ¶ 16.
The interests of the class will also be fairly and adequately protected by Metin, who has a
real and direct pecuniary interest in pursuing this action having worked as a service worker at
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catered events for Defendants and having not received monies she alleges to have been gratuities.
Additionally, to the best of Class Counsel’s knowledge, there is no competing litigation already
commenced by any member of the class. See Cohen Aff. ¶ 10. In any event, class members here
have the right to opt out of the class settlement if they so choose, and allowing class members “to
opt out of the class avoids any question of the adequacy of the class representation pursuant to
CPLR 901 (a).” Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 400 (2014).
E. Superiority
Section 196-d claims are particularly well-suited to class treatment. In Spicer v. Pier Sixty,
LLC, 269 F.R.D. 321 (S.D.N.Y. 2010), U.S. District Judge Leonard B. Sand, in certifying a class
of workers asserting claims essentially identical to those here, found that this type of case presents
the quintessential example of a common claim suited to class adjudication: “Commonality is
clearly satisfied in this instance; class members assert the same legal claim based on World Yacht
against a service charge policy that was in all material respects nearly identical for each Plaintiff
and for each event.” Id. at 337. There, as here, “a trial on liability for any given event would look
essentially identical whether it was prosecuted individually or on a class basis.” Id. at 338. In all
of these cases, courts have found that all requisites of CPLR §§ 901 and 902 have been met by
workers seeking payment of gratuities that were improperly withheld by their employers.
The alternative would be to require over approximately 195 individual actions, which is
neither an effective means by which to accomplish justice, nor an economical use of the Court’s
time and resources. Certification of the class would also avoid the possibility of conflicting
determinations and the imposition of different and perhaps incompatible standards upon
Defendants. There are no difficulties likely to be encountered in the management of this matter as
a class action for settlement purposes. Further, given the expense of litigation and the relatively
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small size of numerous individual claims, many members of the class simply could not afford to
pursue redress absent class treatment. Given these facts, a class action for settlement purposes
only is superior to other available methods of adjudicating this controversy.
F. Consideration of § 902 Factors
Pursuant to CPLR § 902, the Court should consider the following factors in exercising its
discretion in favor of class certification:
1. The interest of members of the class in individually controlling the
prosecution or defense of separate actions;
2. The impracticability or inefficiency of prosecuting or defending separate
actions;
3. The extent and nature of any litigation concerning the controversy already
commenced by or against members of the class;
4. The desirability or undesirability of concentrating the litigation of the claim
in the particular forum;
5. The difficulties likely to be encountered in the management of a class action.
A number of these factors mimic the requirements of § 901. See Gilman v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 404 N.Y.S.2d 258, 264 (Sup. Ct. N.Y. Cty., 1978). As to “the interest
of members of the class in individually controlling the prosecution . .. of separate actions,” §
902(1), to Plaintiffs’ counsel’s knowledge, no other employee has instituted an action against the
Defendant for unpaid wages or gratuities. Thus, there is no pending litigation concerning the
instant controversy. See CPLR § 902(3).
As stated above, the existence of at least 195, in and of itself, is testament to both “the
impracticability and inefficiency of prosecuting or defending separate actions.” See CPLR §
902(2). Moreover, this forum is appropriate insofar as, to Class Counsel’s knowledge, many of
the class members live in the locale and the events giving rise to this Action occurred in the
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geographical area. See CPLR § 902(4). Finally, there are few difficulties in managing a class action
based upon the claims herein, particularly when compared to complications of managing multiple
actions. See CPLR § 902(5).
V. CLASS ACTION SETTLEMENT PROCEDURE
The settlement procedure requested by the Parties includes multiple distinct steps:
1. Approval of the proposed settlement after submission to the Court of a written
motion for approval.
2. Dissemination of mailed and/or emailed notice of settlement
Preview
FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LESLIE CORTES, individually and on behalf of others similarly situated, Index No.: 154853/2018 Plaintiffs, - against - PACIFIC LANGHAM NEW YORK CORPORATION d/b/a LANGHAM PLACE FIFTH AVENUE; and any other related entities, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR APPROVAL OF THE PROPOSED SETTLEMENT, CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL, AND APPROVAL OF THE PARTIES’ PROPOSED NOTICE AND CLAIM FORM & RELEASE Brett R. Cohen, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 T: (516) 873-9550 bcohen@leedsbrownlaw.com Attorneys for Plaintiff & the Settlement Class 1 1 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 PRELIMINARY STATEMENT Subject to this Court’s approval, Proposed Class Representative Cigdem Metin, on behalf of Plaintiff Leslie Cortes (“Named Plaintiff”) and a putative class of individuals she seeks to represent (collectively “Plaintiffs”), and Defendants Pacific Langham New York Corporation and any other related entities (collectively “Defendants” or “Pacific Langham”) (Plaintiffs and Defendants are collectively the “Parties” and each individually a “Party”) have settled this wage and hour class action. The proposed settlement satisfies all of the criteria for approval. Plaintiffs respectfully request that the Court: (1) grant approval of the Settlement Agreement (as defined below), (2) certify for settlement purposes only the settlement class pursuant to N.Y. C.P.L.R. §§ 901 and 902; (3) appoint Plaintiffs’ Counsel as Class Counsel; (4) approve the Notice of Settlement of Class Action Lawsuit and Claim Form and Release; (5) direct counsel for the respective Parties to effectuate the terms of the Settlement Agreement; and (6) any other further relief the Court deems just and proper. Although Defendants vigorously deny any and all wrongdoing, Defendants do not oppose this motion. I. FACTUAL AND PROCEDURAL BACKGROUND This is an action pursuant to New York Labor Law Article 6 § 196-d and 12 New York Codes, Rules and Regulations (“NYCRR”) Part 146 during the period beginning July 2013 through the May 23, 2018 (the “Settlement Period”). Specifically, Plaintiffs allege that Defendants assessed a mandatory “service charge” or “administrative fee” on forms and promotional materials given to customers, and did not properly disclaim to customers that this mandatory charge was not a gratuity and, as such, would not be distributed to the service staff. Defendants deny Plaintiffs’ claims in their entirety and do not admit to any wrongdoing whatsoever. 1 4821-8655-2499.1 2 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 II. SUMMARY OF THE SETTLEMENT TERMS A. “Class,” “Settlement Class,” or “Settlement Class Member” “Class”, “Settlement Class”, or “Settlement Class Member” (individually, “Class Member”) means all individuals who, according to Defendants’ reasonably accessible records and those of its third-party service provider, performed service work at catered events held at Langham Place Fifth Avenue from July 2013 through May 23, 2018, in such trades, classifications, and professions that customarily receive gratuities, including but not limited to servers, waiters, banquet servers, bussers, bartenders, captains, and runners, and whose names appear on the Class List. Affirmation of Attorney Brett R. Cohen (“Cohen Aff.”), at Ex. A § 1.32. B. Settlement Agreement or Agreement “Settlement Agreement” or “Agreement” means the Parties’ Settlement Agreement and Release and the exhibits thereto (Cohen Aff. Ex. A), which the Parties understand and agree sets forth all material terms and conditions of the Settlement between them, and which is subject to Court approval. “Settlement” means the settlement between the Parties embodied and contained in the Agreement. Cohen Aff. Ex. A. C. Authorized Claimant(s) “Authorized Claimant(s)” means each Class Member, or the authorized legal representative of such Class Member, who timely files a Claim Form in accordance with the terms of this Agreement, and who is therefore entitled to receive a Settlement Check. Named Plaintiff is deemed an Authorized Claimant upon execution of the Agreement and need not return a Claim Form. Cohen Aff. Ex. A § 1.3. 2 4821-8655-2499.1 3 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 D. Released Class Claims “Released Class Claims” means any and all New York state and local claims, including any wage and hour claims, obligations, demands, actions, rights, causes of action, and liabilities against Defendant, of whatever kind and nature, character and description, whether known or unknown, and whether anticipated or unanticipated, including unknown claims that accrued or accrue on any date up through the Effective Date, for any type of relief under New York state or local law that arose from or are in any way related to any Defendant, including, without limitation, claims under any legal theory for failure to pay minimum wage, failure to pay overtime, failure to pay for all hours worked, failure to provide meal and rest periods, failure to timely pay final wages, failure to reimburse for business expenses, and/or failure to furnish accurate wage statements, wage notices or other notices, and any and claims for recovery of compensation, overtime pay, minimum wage, premium pay, interest, and/or penalties, and any related or derivative claims, other penalties, related tort and punitive damages, including, but not limited to, all claims alleged in the Complaint, claims based on, or under, New York State law, the Hospitality Wage Order, and/or common law, and statutory, constitutional, contractual, or common law claims for unpaid gratuities, service charges, administrative charges, tips, interest on such claims, penalties, damages, liquidated damages, attorney’s fees, expenses, disbursements, litigation costs and fees, restitution, or equitable relief Cohen Aff. Ex. A § 1.28. E. Notice Response Deadline & Acceptance Period Date The “Notice Response Deadline” or “Bar Date” means the last day of the Acceptance Period (defined below) in which Class Members can timely complete and submit their Claim Form and Release or opt out of the Settlement. The “Acceptance Period” means the sixty (60) day period beginning from the date of the first mailing of the Notice and the Claim Form and Release, during 3 4821-8655-2499.1 4 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 which a Class Member can submit a Claim Form and Release to receive a Settlement Check. Cohen Aff. Ex. A §§ 1.1, 1.21. F. Gross Potential Settlement Amount “Gross Potential Settlement Fund” means Six Hundred Seventy-Five Thousand Dollars ($675,000.00), which is a maximum, capped amount that Defendants will be responsible for paying to settle the Action if each and every Authorized Claimant submits a timely Claim Form resulting in the payment of claims equaling one hundred percent (100%) of the Net Settlement Fund and the Settlement is not terminated, canceled or fails to become effective for any reason, and which includes all Costs and Fees and all other payments referenced in this Agreement. Cohen Aff. Ex. A § 1.16. G. Qualified Settlement Account “Qualified Settlement Account” or “QSF” means the account to be established and controlled by the Claims Administrator for the purpose of retaining and distributing the Gross Individual Settlement Amount payments to Class Members who opt-in, in accordance with this Agreement. Cohen Aff. Ex. A § 1.26. H. Individual Gross Settlement Amount “Individual Gross Settlement Amount” means the pre-tax amount allocated to each Authorized Claimant who submits a timely Claim Form. Cohen Aff. Ex. A § 1.17. I. Net Settlement Amount “Net Settlement Amount” means the aggregate of all Individual Gross Settlement Amounts to be distributed to all Authorized Claimants, after the deduction of Court-approved Costs and Fees and Employment Taxes and Court-approved Service Awards. Cohen Aff. Ex. A § 1.19. 4 4821-8655-2499.1 5 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 J. Order Granting Approval “Order Granting Approval” or “Approval Order” means the Order to be entered by the Court, which, inter alia, approves the terms and conditions of this Agreement, authorizes distribution of the Settlement Checks and the Service Payment, approves distribution of Costs and Fees, and dismisses the Action with prejudice. Cohen Aff. Ex. A § 1.24. K. Attorneys’ Fees, Litigation Costs, and Service Award Plaintiffs’ Counsel seeks an award from the Gross Potential Settlement Amount of no more than Two Hundred Twenty-Five Thousand Dollars and Zero Cents ($225,000.00), which represents one-third (⅓) of the Gross Potential Settlement Fund, as an amount that will cover an award of attorneys’ fees to Class Counsel,1 plus up to $7,5000 for actual expenses incurred.2 Additionally, in return for services rendered to the Settlement Class, Class Counsel seeks, and Defendants do not oppose, payment of a Service Award to the Named Plaintiff and Class Representative Cigdem Metin of up to Seven Thousand Five Hundred Dollars and Zero Cents ($7,500.00) in total.3 Cohen Aff. Ex. A §§ 3.3, 3.4. 1 A request for fees of one-third of the Gross Settlement Fund is “well within the range of reasonableness and within the percentage regularly approved in class action and wage and hour suits.” Lopez v. Dinex Grp., 2015 NY Slip Op 31866(U) (Sup. Ct. N.Y. Cty., Oct. 6, 2015) at ¶ 22 (listing cases where one-third or more of fund was approved for attorneys’ fees); see also Villasin v. American Yacht Club, Index No. 608975/2017 (Sup. Ct. Nassau Cty., Jan. 10, 2019) (J. Mahon) (approving one-third of the fund as fees); Salzmann v. Metropolis Country Club, Inc., Index No. 608527/2017 (Sup. Ct. Nassau Cty., Dec. 18, 2018) (J. Brown) (same). 2 “Courts typically allow counsel to recover their reasonable out-of-pocket expenses.” In re Energy Holdingss PLC Sec. Litig., 302 F. Supp. 2d 180, 183 n. 3 (S.D.N.Y. 2003) 3 A service award of $7,500 in total to these two individuals as requested here, is well within the range of those typically approved by Courts. See e.g., Villasin v. American Yacht Club, Index No. 608975/2017 (Sup. Ct. Nassau Cty., Jan. 10, 2019) (J. Mahon) (approving service award of $7,500 to one individual class representative); Membrives v. Platinum Affairs, Ltd., Index No. 603295/2016 (Sup. Ct. Nassau Cty., Oct. 16, 2018) (J. Galasso) (same). 5 4821-8655-2499.1 6 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 L. Final Effective Date “Final Effective Date” means, the later of: (i) 45 days following the expiration of the Notice Response Deadline; or (ii) if an appeal of the Approval Order is timely filed, 30 days after the date of any of the following occurrences: (1) any appeal from the Approval Order has been finally dismissed; (2) the Approval Order has been affirmed on appeal in a form substantially identical to the form of the Approval Order entered by the Court; (3) the time to petition for review with respect to any appellate decision affirming the Approval Order has expired; and (4) if a petition for review of an appellate decision is filed, the petition has been denied or dismissed, or, if granted, has resulted in affirmance of the Approval Order in a form substantially identical to the form of the Approval Order entered by the Court. Cohen Aff. Ex. A § 1.14. III. THE SETTLEMENT AGREEMENT REFLECTS A FAIR, REASONABLE COMPROMISE The Settlement Agreement, Cohen Aff. Ex. A, represents a substantial recovery and reflects a compromise of the risks, claims, and defenses, in this matter. Each aspect of the Settlement Agreement reflects a series of reasonable compromises to ensure that the Settlement Class would collect portions of gratuities that they were allegedly owed without the risk, time, and expense of litigating a class action, subject to numerous claims and defenses. The Settlement Agreement itself was negotiated and agreed upon by experienced attorneys, working at arm’s- length, to protect their respective clients and reach a resolution that is legally and factually supported. Moreover, experienced and reputable mediator Martin F. Scheinman, Esq. mediated this matter, ultimately culminating in its resolution. Cohen Aff. Ex. F. Significantly, and unlike many other NYLL § 196-d cases that have been approved by Courts in New York State Supreme Court, Defendants had several unique defenses in this case, 6 4821-8655-2499.1 7 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 including that Defendants represented a significant portion of the mandatory charges were in fact adequately disclaimed in accordance with applicable law, and that a substantial number of putative class members were not, in fact, “employees” of Defendants for purposes of the NYLL and therefore they were not liable for any such alleged damages on the part of such individuals. In addition, Defendants represented that Plaintiff Cortes did not maintain standing to prosecute his claims and/or would not be an “adequate” class representative as she was not employed as an employee of Defendant; but rather, was an employee of The Supporting Cast or an independent contractor. Despite these unique risks associated with this action, and despite the traditional risks of litigating any class action under NYLL, Plaintiffs secured a Settlement Agreement that established a claims-made Gross Potential Settlement Fund of Six Hundred Seventy-Five Thousand Dollars and Zero Cents ($675,000.00), inclusive of attorneys’ fees, costs and expenses. This represents a significant potential recovery to all members of the Settlement Class pursuant to the terms of the Settlement Agreement, subject only to them returning a signed Claim Form and Release by the Bar Date – and requiring no further time commitment on their part. See Cohen Aff. Ex. A § 2.4. Gross Potential Settlement Fund Affords Class Members Significant Relief The Gross Potential Settlement Fund as set forth in the Settlement Agreement affords the Settlement Class a significant recovery compared to the recovery the Settlement Class could have hoped to receive had this case proceeded to trial, and had Plaintiffs prevailed on all of their legal and factual arguments. The settlement figure is substantial when considering the Defendants’ assessment and retention of mandatory charges (i.e. service or administrative charges) during the relevant period 7 4821-8655-2499.1 8 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 for which they did not include an adequate disclaimer. To wit, Defendants represent that should the matter proceed in a contested litigation, their representatives would have testified to customers being made verbally aware that the charges in question were not gratuities. Plaintiffs’ potential recovery could be further limited if this action were to proceed to trial as Defendants’ event files, including customer contracts and banquet event orders, specifically stated that the administrative charges were not gratuities. The presence of such disclaimer language on such documents could present a significant defense as it pertains to what the reasonable patron may have believed regarding the purpose of a mandatory charge. Based upon Defendants’ representations to Class Counsel, we estimate that a significant percentage of mandatory fees collected in connection with events held at Pacific Langham are subject to Defendants’ claimed defenses. Therefore, the Gross Potential Settlement Fund represents a substantial and significant recovery, but especially so given the obstacles Plaintiffs would have faced in the event this settlement was not reached. IV. CLASS CERTIFICATION SHOULD BE GRANTED FOR SETTLEMENT PURPOSES 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 questions 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; and 8 4821-8655-2499.1 9 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 5. A class action is superior to other available methods for the fair and efficient adjudication of the controversy [“superiority”]. It is well established that courts routinely grant class certification in wage and hour cases in the State of New York in the context of 196-d claims based on service charges since Samiento v. World Yacht, Inc., 9 N.Y.3d 998 (1st Dep’t 2007). See, e.g., Velasquez v. Sunstone Red Oak, LLC, 2018 N.Y. Misc. LEXIS 4476 (Sup. Ct. Westchester Cty., Aug. 21, 2018) (certifying a class of banquet workers in an action to recover charges purported to be gratuities under § 196-d); Medina v. Fairway Golf Mgmt., LLC, Index No. 607829/2015 (Sup. Ct. Nassau Cty., Aug. 4, 2017) (same); Cornejo v. Rose Castle Corp., Index No. 500178/2016 (Sup. Ct. Kings Cty., June 30, 2017) (same); Membrives v. HHC TRS FP Portfolio LLC, 2017 N.Y. Misc. LEXIS 5754 (Sup. Ct. Nassau Cty., Mar. 10, 2017) (same); Maor v. Hornblower New York, LLC, 2016 N.Y. Misc. LEXIS 2111 (Sup. Ct. N.Y. Cty., June 13, 2016) (same); see also Griffin v. Aldi, Inc., 16-cv- 00354-LEK-ATB (N.D.N.Y. May 11, 2017); Cataldo v. Morrell Caterers, 12-cv-1690 (JFB)(ARL) (E.D.N.Y. June 25, 2013) (granting a Rule 23 class of service employees at three permanent catering locations). In this case, Plaintiffs seek a class for settlement purposes of all individuals who allegedly did not receive gratuities owed to them from Defendants during Settlement Period. As set forth below, Plaintiffs satisfy the requirements of CPLR §§ 901 and 902. For settlement purposes, a class action is the most efficient, most effective and least costly method of resolving this dispute. A. Numerosity Based upon representations from Defendants, the class is believed to contain no fewer than 195 putative Class Members. It is clear that the class is so numerous that joinder of all members is impracticable. See, e.g., Pesantez v. Boyle Environmental Services, Inc., 251 A.D.2d 11 (1st 9 4821-8655-2499.1 10 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 Dept. 1998) (holding that 40 class members was “many more” than required to satisfy numerosity). For example, Metin testified that Defendants utilized numerous other service workers to perform the identical jobs and responsibilities as he did. Cohen Aff. Ex. E at ¶ 8 (“For each event, there were numerous other service workers who performed the same types of jobs as I did, with the same or similar responsibilities. For example, at a typical large event there could be as many as 10 other service workers who would work alongside me.”) Extrapolating this number across the entirety of the relevant period for all catered events leads to the logical conclusion that the class size easily satisfies the numerosity requirement. B. Commonality and Predominance There are common questions of law and/or fact that predominate over questions affecting only individual members. These common questions include: Common Factual and Legal Questions: a) Whether Defendants assessed charges to its customers in the nature of gratuities, as those terms are defined under the Labor Law and the cases and regulations interpreting same; b) Whether Defendants’ patrons made payments to Defendants, or which were received or retained by Defendants, which reasonable patrons would assume to have been in the nature of gratuities; c) Whether Defendants improperly retained gratuities in violation of Labor Law § 196-d and cases interpreting same. Each of these core issues involves the existence of a common nucleus of operative facts based on Defendants’ alleged common policies and procedures. Moreover, as all putative class members were allegedly not paid all gratuities that they were entitled to, the harm that the Named Plaintiffs allegedly suffered in this case is similar to the harm allegedly suffered by each and every Class Member. Moreover, each participating Class Member’s settlement damages will be 10 4821-8655-2499.1 11 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 calculated in the same manner as all other participating Class Members’ alleged damages. Commonality and predominance are thus satisfied. See, e.g., Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 90-92, 434 N.Y.S.2d 698, 709 (2d Dept. 1980). For example, the Named Plaintiff testified that “As compensation for working these events, I was paid at an hourly rate but did not receive any portion of the mandatory charge … that was collected by the Pacific Langham.” Cohen Aff. Ex. E ¶ 9. “From my understanding and interactions, I understood that the other service workers were similarly paid, and they too did not receive the full portion of the mandatory charge.” Cohen Aff. Ex. E ¶ 10. C. Typicality The Named Plaintiff’s claims are typical of the claims of the members of the putative class. The Named Plaintiff alleges that, like every other member of the class, he was entitled to the mandatory charge that appeared on Defendants’ forms, contracts, invoices, and promotional materials. See, e.g., Friar, 78 A.D.2d at 98; Pajaczek v. Cema Constr. Corp., 859 N.Y.S.2d 897 (Sup. Ct. N.Y. Cty., 2008); Galdamez v. Biordi Constr. Corp., 831 N.Y.S.2d 347 (Sup. Ct. N.Y. Cty., 2006). D. Fair and Adequate Representation The Named Plaintiff is represented by Leeds Brown Law, P.C. (“Leeds Brown”) whose attorneys are experienced in labor and employment law. To wit, in a settlement decision granting preliminary approval of a class and collective action settlement, the Honorable Alison J. Nathan noted: … Leeds Brown Law, P.C. [and co-counsel] are experienced and well-qualified employment and class action lawyers with expertise in prosecuting and settling labor law cases. The substantial work that Plaintiffs’ counsel has performed in investigating, litigating and reaching a settlement in this case demonstrates their commitment to the class and representing the class’ interests, as well as their general ability to conduct this litigation…As noted above, [co-counsel and] Leeds 11 4821-8655-2499.1 12 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 Brown Law, P.C. have extensive experience in labor law class actions and have devoted considerable time and effort to litigating and settling this action on behalf of the class. Tart v. Lions Gate Entm’t Corp., 2015 U.S. Dist. LEXIS 139266, *7 (S.D.N.Y. October 13, 2015); Varela v. Building Services Industries, LLC, Index No. 600037/2016 (Sup. Ct. Nassau Cty., June 21, 2018) (“the court finds that class counsel have established their significant experience prosecuting employment class actions and their work performed in representing the interests of the class members in this action.”). Leeds Brown has represented numerous clients in wage and hour litigations under state and federal law, many of which have settled. See, e.g., Cortes v. Dania Marina, Inc., Index No. 5436/2018 (Sup. Ct. Westchester Cty. Oct. 3, 2019) (J. Walsh); Ascensio v. Dinosaur Restaurant, LLC, Index No. 154847/2017 (Sup. Ct. N.Y. Cty. Nov. 12, 2019); Robinson v. Access Food & Beverage, Inc., Index No. 152746/2018 (Sup. Ct. N.Y. Cty. Nov 8, 2019); Posner v. NYS Pool Management Company, Inc., Index No. 609371/2017 (Sup. Ct. Nassau Cty. Sept. 26, 2019); Padder v. Logans Sanctuary LLC, Index No. 602455/2018 (Sup. Ct. Nassau Cty. Sept. 16, 2019); Maria v. Sankara NY, LLC, Index No. 51469/2018 (Sup. Ct. Westchester Cty. Aug. 20, 2019) (J. Smith); Settecasi v. Michael Scott Catering LLC, Index No. 601994/2018 (Sup. Ct. Nassau Cty. Aug. 19, 2019); Torres v. Old Oaks Country Club, Inc., Index No. 63047/2017 (Sup. Ct. Westchester Cty. Aug. 16, 2019) (J. Loehr); Ayasi v. Sirena Restaurant, Inc., Index No. 504596/2019 (Sup. Ct. Kings. Cty. Aug. 7, 2019); Locandro v. Willow Ridge Country Club, Inc., Index No. 63740/2017 (Sup. Ct. Westchester Cty. July 16, 2019) (J. Giacomo); McShane v. Foxsco Inc., Index No. 607129/2017 (Sup. Ct. Nassau Cty. July 8, 2019); Maor v. Volume Service America, Inc., Index No. 158298/2014 (Sup. Ct. N.Y. Cty. June 6, 2019); Blue v. MDC Tavern Corp., Index No. 600162/2017 (Sup. Ct. Nassau Cty. May 22, 2019); Fernandez v. Masterpiece 12 4821-8655-2499.1 13 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 Caterers, Corp., Index No. 51469/2018 (Sup. Ct. N.Y. Cty. May 7, 2019); Montero v. 333 Bayville Avenue Restaurant Corp., Index No. 603760/2017 (Sup. Ct. Nassau Cty. May 6, 2019); Maor v. GAC Caterers, Inc., Index No. 25669/2017 (Sup. Ct. Bronx Cty, May 6, 2019); Villasin v. Glenarbor Golf Club, LLC, Index No. 608512/2017 (Sup. Ct. Nassau Cty. Apr. 25, 2019); Heale v. Hickory Ridge Golf & Country Club Inc., Index No. E2017000673 (Sup. Ct. Monroe Cty. Apr. 5, 2019); Salzman v. Coveleigh Club, Inc., Index No. 608525/2017 (Sup. Ct. Nassau Cty. Apr. 2, 2019); Villasin v. American Yacht Club, Index No. 608975/2017 (Sup. Ct. Nassau Cty. Jan. 10, 2019); Salzmann v. Metropolis Country Club, Inc., Index No. 608527/2017 (Sup. Ct. Nassau Cty. Jan. 7, 2019) (J. Brown); Membrives v. Platinum Affairs, Ltd., Index No. 603295/2016 (Sup. Ct. Nassau Cty. Oct. 16, 2018); Baez v. Westchester Manor Corp., Index No. 55431/2016 (Sup. Ct. Westchester Cty. Apr. 17, 2019) (J. Lefkowitz); Bello v. Spring Soho Inc., Index No. 162683/2015 (Sup. Ct. N.Y. Cty. Mar. 6, 2018); Maor v. Paramount Country Club, LLC, Index No. 032284/2016 (Sup. Ct. Rockland Cty. Dec. 18, 2017); Pino v. DHG Management Company, LLC, Index No. 155969/2015 (Sup. Ct. N.Y. Cty. May 31, 2017); Garcia v. Culinart, Inc., Index No, 601978/2015 (Sup. Ct. Nassau Cty. May 24, 2017); Pino v. DHG Management Company, LLC, Index No. 155969/2015 (Sup. Ct. N.Y. Cty. May 3, 2017); Greenfield v. Puig North America Inc., Index No. 157654/2015 (Sup. Ct. N.Y. Cty. Apr. 7, 2017); In re Gentleman’s Quarters Litig., Index No. 603315/2015 (Sup. Ct. Nassau Cty. Mar. 15, 2017); Maor v. IHG Management Maryland LLC, Index No. 050823/2014 (Sup. Ct. Westchester Cty. Feb. 8, 2016) (J. Lefkowitz); among others. Further, Named Plaintiff testified that he chose their counsel “because of the success that they have had in protecting catering, restaurant, and hotel workers…” Cohen Aff. Ex. E ¶ 16. The interests of the class will also be fairly and adequately protected by Metin, who has a real and direct pecuniary interest in pursuing this action having worked as a service worker at 13 4821-8655-2499.1 14 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 catered events for Defendants and having not received monies she alleges to have been gratuities. Additionally, to the best of Class Counsel’s knowledge, there is no competing litigation already commenced by any member of the class. See Cohen Aff. ¶ 10. In any event, class members here have the right to opt out of the class settlement if they so choose, and allowing class members “to opt out of the class avoids any question of the adequacy of the class representation pursuant to CPLR 901 (a).” Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 400 (2014). E. Superiority Section 196-d claims are particularly well-suited to class treatment. In Spicer v. Pier Sixty, LLC, 269 F.R.D. 321 (S.D.N.Y. 2010), U.S. District Judge Leonard B. Sand, in certifying a class of workers asserting claims essentially identical to those here, found that this type of case presents the quintessential example of a common claim suited to class adjudication: “Commonality is clearly satisfied in this instance; class members assert the same legal claim based on World Yacht against a service charge policy that was in all material respects nearly identical for each Plaintiff and for each event.” Id. at 337. There, as here, “a trial on liability for any given event would look essentially identical whether it was prosecuted individually or on a class basis.” Id. at 338. In all of these cases, courts have found that all requisites of CPLR §§ 901 and 902 have been met by workers seeking payment of gratuities that were improperly withheld by their employers. The alternative would be to require over approximately 195 individual actions, which is neither an effective means by which to accomplish justice, nor an economical use of the Court’s time and resources. Certification of the class would also avoid the possibility of conflicting determinations and the imposition of different and perhaps incompatible standards upon Defendants. There are no difficulties likely to be encountered in the management of this matter as a class action for settlement purposes. Further, given the expense of litigation and the relatively 14 4821-8655-2499.1 15 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 small size of numerous individual claims, many members of the class simply could not afford to pursue redress absent class treatment. Given these facts, a class action for settlement purposes only is superior to other available methods of adjudicating this controversy. F. Consideration of § 902 Factors Pursuant to CPLR § 902, the Court should consider the following factors in exercising its discretion in favor of class certification: 1. The interest of members of the class in individually controlling the prosecution or defense of separate actions; 2. The impracticability or inefficiency of prosecuting or defending separate actions; 3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class; 4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum; 5. The difficulties likely to be encountered in the management of a class action. A number of these factors mimic the requirements of § 901. See Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 404 N.Y.S.2d 258, 264 (Sup. Ct. N.Y. Cty., 1978). As to “the interest of members of the class in individually controlling the prosecution . .. of separate actions,” § 902(1), to Plaintiffs’ counsel’s knowledge, no other employee has instituted an action against the Defendant for unpaid wages or gratuities. Thus, there is no pending litigation concerning the instant controversy. See CPLR § 902(3). As stated above, the existence of at least 195, in and of itself, is testament to both “the impracticability and inefficiency of prosecuting or defending separate actions.” See CPLR § 902(2). Moreover, this forum is appropriate insofar as, to Class Counsel’s knowledge, many of the class members live in the locale and the events giving rise to this Action occurred in the 15 4821-8655-2499.1 16 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2020 06:28 PM INDEX NO. 154853/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/21/2020 geographical area. See CPLR § 902(4). Finally, there are few difficulties in managing a class action based upon the claims herein, particularly when compared to complications of managing multiple actions. See CPLR § 902(5). V. CLASS ACTION SETTLEMENT PROCEDURE The settlement procedure requested by the Parties includes multiple distinct steps: 1. Approval of the proposed settlement after submission to the Court of a written motion for approval. 2. Dissemination of mailed and/or emailed notice of settlement