Motion for Wage and Hour Class Certification in New York

What Is a Motion for Wage and Hour Class Certification?

Background

A class action allows the courts to manage multiple claims that are typical of a class in a way that conserves judicial resources, reduces litigation expenses, and avoids inconsistent outcomes. (Roberts v. Ocean Prime LLC, 148 A.D.3d 525 [1st Dept. 2017].) This is achieved by allowing one or more members of a class to sue (or be sued) as representative parties on behalf of all. (Civ. Prac. Law & Rules, § 901.)

Class certification is routinely granted in wage and hour actions in the State of New York. (Dabrowski v. Abax, Inc., 84 A.D.3d 633 [1st Dept. 2011].) “Numerous courts have found that wage claims are especially suited to class litigation—perhaps the most perfect questions for class treatment—despite differences in hours worked, wages paid, and wages due.” (Ramos v. O’Connell, 28 F.Supp.2d 796 [W.D.N.Y. 1998].) “New York state courts have repeatedly approved class certification of prevailing wage claims against an employer.” (Id. at 359.) Class certification is appropriate “in the majority of wage cases” where “plaintiffs establish that [the] defendant had a practice or policy of failing to pay prevailing wages.” (Id.)

How to Structure the Motion

Section 901 of Civil Practice Law and Rules sets forth five prerequisites to class certification:

the class is so numerous that joinder of all members whether otherwise required or permitted is impracticable;
there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
the claims or defenses of the representative parties are typical of the claims or defenses of the class;
the representative parties will fairly and adequately protect the interests of the class; and
a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

(Civ. Prac. Law & Rules, § 901; Weinberg v. Hertz Corp., 116 A.D.2d 1, 4 [1st Dept. 1986].)

Among the matters which the court shall consider in determining whether the action may proceed as a class action also include:

the interest of members of the class in individually controlling the prosecution or defense of separate actions;
the impracticability or inefficiency of prosecuting or defending separate actions;
the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
the desirability or undesirability of concentrating the litigation of the claim in the particular forum; and
the difficulties likely to be encountered in the management of a class action.

(Civ. Prac. Law & Rules, § 902; Chimenti v. American Express Co., 97 A.D.2d 351 [N.Y. App. Div. 1983].).

The plaintiff has the burden of showing that the criteria of CPLR 901 and 902 have been satisfied. (Cooper v. Sleepy’s LLC (2014) 120 A.D.3d 742.) This burden “must be met by providing an evidentiary basis for class certification.” (Kudinov v. Kel-Tech Constr., Inc. (2009) 65 A.D.3d 481, 418.) General or conclusory allegations in the affirmation of plaintiff’s counsel and exhibits are insufficient to sustain a plaintiff’s burden of establishing compliance with statutory requirements for a class action. (Rallis v. City of New York, 3 A.D.3d 525 [2d Dept. 2004].)

The Court’s Decision

The merits inquiry on a motion for class action certification is limited to whether on the surface there appears to be a cause of action. (Brandon v. Chefez, 106 A.D.2d 162, 168 [1st Dept 1985].) “Class action certification is thus appropriate if on the surface there appears to be a cause of action which is not a sham.” (Pludeman v. Northern Leasing Sys., Inc. (2010) 74 A.D.3d. 420, 422.)

It is widely held that the criteria for class certification should be liberally construed and that the determination of whether a lawsuit qualifies as a class action rests within the sound discretion of the trial court. (City of New York v. Maul (2010) 14 N.Y.3d 499.) This liberal construction has been repeatedly implemented by New York courts in deciding whether to certify a class. (Friar v. Vanguard Holding Corp. (1980) 78 A.D.2d 83, 90-92.) “[A]ny error, if there is to be one" should be committed in favor of allowing the class action.” (Id. at 90-92.)

A class may be certified provided the plaintiffs establish compliance with the five prerequisites to class certification enumerated in Section 901 of Civil Practice Law and Rules. (Bartis v. Harbor Tech, LLC, 147 A.D.3d 51, 63 [2d Dept 2016].)

The first prerequisite of numerosity requires that a plaintiff must demonstrate that joinder of all members would be impracticable. (Borden v. 400 E. 55th Assoc. (2014) 24 N.Y.3d 382, 399.) In evaluating whether or not the numerosity requirement has been met, courts have held that “[t]here is no mechanical or precise test… [and] courts are to consider the unique circumstances of each case, and the inferences to be drawn there from.” (Nawrocki v. Proto Const. & Dev. Corp., 27 Misc.3d 1211[A] [Sup. Ct. N.Y. Cty., 2010].) “[T]here is no set rule for the number of prospective class members… Each case depends upon the particular circumstances surrounding the proposed class and the court should consider the reasonable inferences and common sense assumptions from the facts before it.” (Friar v. Vanguard Holding Corp. (1980) 78 A.D.2d 82.)

In regards to common questions of fact and law, a party seeking class certification must establish more than that issues exist which are common to the entire class; the party must show that these common issues predominate over unique circumstances that may pertain to each individual’s situation. (Alix v. Wal-Mart Stores, Inc. (2008) 57 A.D.3d 1044.) Class action certification is not warranted where the “proceeding would inevitably splinter into individual trials, and would not achieve economics of time, effort, and expense, and promote uniformity of division [sic: decision] as to persons similarly situated.” (Kleinberg v. Frankel (1982) 89 A.D.2d 556, 557-558.)

However, “the rule requires predominance, not identity or unanimity, among class members” and “the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action.” (Friar v. Vanguard Holding Corp. (1980) 78 A.D.2d 82, 98-99.) “To the extent that there may be differences among the class members as to the degree in which they were damaged, the court may try the class aspects first and have the individual damage claims heard by a special master or create subclasses.” (Godwin Realty Assoc. v. CATV Enters. (2000) 275 A.D.2d 269, 270.)

The prerequisite of typicality requires that “the claims asserted by the plaintiff(s) seeking to represent the class, as well as any defenses to those claims, be typical of the claims made by and the defenses asserted against the class members.” (Pludeman v. Northern Leasing Sys., Inc. (2010) 74 A.D.3d 420, 423.) “If it is shown that a plaintiff’s claims 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... [the typicality requirement] is satisfied’.” (Id.) “Typicality does not require identity of issues and the typicality requirement is met even if the claims asserted by class members differ from those asserted by other class members.” (Id.)

State courts in New York evaluate the adequacy of representation by examining potential conflicts of interest, personal characteristics of the proposed class representatives, and the quality of class counsel. (Pruitt v. Rockefeller Ctr. Props. (1991) 167 A.D.2d 14, 24.) This requirement is intended to ensure that the class representatives and their counsel will fairly and adequately represent the interests of the class. (Borden v. 400 E. 55th Assoc. (2014) 24 N.Y.3d 382, 400.)

In regards to the final prerequisite, the courts recognize that a class action “also yields a public benefit which makes it superior to an administrative complaint,” by providing “a means of inducing socially and ethically responsible behavior on the part of large and wealthy institutions which will be deterred from carrying out policies... harmful to large numbers of individuals.” (Weinstein v. Jenny Craig Operations, Inc. (2013) 41 Misc.3d 1220.)

Timeline

“Within sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine whether it is to be so maintained.” (Civ. Prac. Law & Rules, § 902.)

Documents for Motion for Wage and Hour Class Certification in New York

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Linda Johnson-Brett, Bradford Brett v. A.O. Smith Corporation.,, Avon Products, Inc.,, Bird Incorporated,, Brenntag North America, Inc., Individually And As Successor In Interest To Mineral Pigment Solutions, Inc., As Successor In Interest To Whittaker, Clark & Daniels, Inc.,, Burnham, Llc, Individually And As Successor To Burnham Corporation,, Carrier Corporation,, Chanel, Inc.,, Clinique Laboratories, Llc,, Colgate Palmolive Company (For Mennen),, Compudyne Corporation, Individually And As Successor To York-Shipley, Conopco, Inc., Individually And As Successor In Interest To Cheseborough-Ponds, Inc.,, Coty, Inc.,, Crane Co.,, Crown Boiler Co.,, Dap, Inc.,, Ecr International, Inc., Individually And As Successor In Interest To Dunkirk, Dunkirk Boilers And Utica Boilers,, Elizabeth Arden, Inc., Individually And As Successor In Interest To Evyan Perfumes, Inc.,, Estee Lauder, Inc.,, Estee Lauder International, Inc.,, Fort Kent Holdings, Inc., F/K/A Dunham-Bush, Inc.,, Friend Lumber Company Of Lowell,, General Electric Company,, Goulds Pumps, Inc.,, Grinnell Llc,, Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,, Honeywell International, Inc., F/K/A Allied Signal, Inc. / Bendix,, Kaiser Gypsum Company, Inc.,, Keeler-Dorr-Oliver Boiler Company,, Macys, Inc.,, Mineral And Pigment Solutions, Inc., F/K/A Whittaker, Clark & Daniels, Inc.,, Minnesota Mining & Manufacturing Company, A/K/A 3m Company,, New Yorker Boiler Co., Inc.,, Paramount Global F/K/A/ Viacomcbs, Inc. F/K/A Cbs Corporation, A Delaware Corporation, F/K/A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F/K/A Westinghouse Electric Corporation,, Pecora Corp.,, Pfizer, Inc., Individually And As Successor To Coty Inc.,, R.W. Beckett Corp.,, Revlon, Inc., Individually And As Successor In Interest To Jean Nate, Evyan Perfumes, Inc. And Enjoli, Inc.,, Rheem Manufacturing Co., Rudd Water Heater Division,, Schneider Electric Usa, Inc., Formerly Known As Square D Company, Slant/Fin Corporation,, Sos Products Co. Inc.,, Spirax Sarco, Inc., Individually And As Successor To Sarco Company,, Union Carbide Corporation,, Weil Mclain, A Division Of The Marley Wylain Company,, Whittaker, Clark & Daniels, Inc.,, Parfums De Couer Ltd, Bristol-Myers Squibb Company document preview - page 1 of 8

EXHIBIT(S) - 36 (Motion #18) Donald Ferry Transcript Excerpts 2010 Possibl…

FILED: MONROE COUNTY CLERK 09/22/2023 01:29 PM INDEX NO. E2022002698 NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 09/22/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3577456 …

Case Name Linda Johnson-Brett, Bradford Brett v. A.O. Smith Corporation.,, Avon Prod…