Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 1 of 19 PageID #: 1813 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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1 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 1 of 19 PageID #: 1813 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK DANIEL SHORT, on behalf of himself and all others similarly situated, vs. Plaintiff, CHURCHILL BENEFIT CORPORATION DBA YURCOR; FRAMESTORE, INC.; RICHARD McCANN; AND MARK TICAR, Defendants. CASE NO. 1:14-cv-4561-MKB-JO SECOND AMENDED CLASS ACTION COMPLAINT JURY TRIAL DEMANDED STATEMENT OF THE CASE Plaintiff, by his counsel, brings this class action against Defendants, on his own behalf and on behalf of all others similarly situated, for wage theft. Plaintiff seeks (1 against Defendant Framestore, Inc. ( Framestore or the Defendant Employer recovery of wages illegally deducted from his paychecks without written authorization and otherwise in violation of law, penalties and liquidated damages under the New York Labor Laws; (2 against Defendant Framestore injunctive and other equitable relief to remedy unfair and unlawful business practices under the New York Labor Laws; and (3 against all Defendants recovery of general and punitive damages for conversion. Plaintiff s allegations are based upon personal knowledge as to his own factual circumstances, and information and belief based as to all other matters. 1. This action seeks relief for the person specifically named as Plaintiff, and on behalf of all similarly situated persons (collectively, Class Members, who have performed artist services in the state of New York for Defendant Framestore, as well as all other employers of artists in New York State (unnamed as Defendants as to whom Defendant Churchill Benefit 1

2 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 2 of 19 PageID #: 1814 Corporation dba Yurcor ( Yurcor, as well as Yurcor s co-owner and Chief Executive Officer ( CEO Richard McCann ( McCann and co-owner and Chief Financial Officer ( CFO Mark Ticar ( Ticar, who performed payroll services (also known as Employer of Record services in connection with those artist services at any time since the date six (6 years prior to the commencement of this action and continuing into the future. 2. Defendants willfully misclassified and treated Class Members as independent contractors, rather than as employees, of Defendant Framestore and other New York State employers ( Non-Defendant Employers who employed them. Defendant Framestore and Non- Defendant Employers and Defendant Yurcor, acting through its executives Defendants McCann and Ticar, schemed and conspired to commit wage theft from the Class Members. Defendants sought to treat Class Members, who were in fact and law employees of Defendant Framestore and Non-Defendant Employers, as independent contractors by making Class Members employees of Defendant Yurcor in name only but paying Class Members as independent contractors. 3. Defendant Framestore and Non-Defendant Employers would recruit the services of individual artists and negotiate daily wage rates with them for temporary and often recurring employment as artists. Defendant Framestore and Non-Defendant Employers would then refer the artists to Defendant Yurcor who ostensibly made the artists its employees. However, Defendant Yurcor was never the employer in fact or law of the Class Members, but merely the agent of the Defendant Framestore and Non-Defendant Employers for purposes of processing payroll for the artists. Defendant Framestore and Non-Defendant Employers each recruited and interviewed Class Members, then negotiated with them over daily pay rates and contracted for their services as artists. Defendant Framestore and Non-Defendant Employers also each 2

3 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 3 of 19 PageID #: 1815 contracted with Defendant Yurcor to put Class Members on Yurcor s payroll ostensibly as employees. After Defendant Framestore and Non-Defendant Employers had already contracted with Class Members, Yurcor ostensibly provided Defendant Framestore and Non-Defendant Employers with the services of those very same Class Members. Defendant Yurcor billed Defendant Framestore and Non-Defendant Employers for the work performed by the respective Class Members at the rates negotiated between the Class Members and Defendant Framestore and Non-Defendant Employers. However, before paying Class Members their wages, Defendant Yurcor, without written authorization from the Class Members, deducted employer payroll taxes (Yurcor s so-called Yurcor Administrative Overhead from the amounts paid to Class Members. 4. Yurcor, a payroll company, did not become an employer by virtue of contracting to perform the recordkeeping responsibilities for an actual employer, including listing itself as an employer on reports to government entities, purchasing mandated workers compensation insurance for the job, and identifying itself as the payor on pay stubs received by a worker. 5. Plaintiff is informed and believes and upon such information and belief alleges that for valuable consideration Defendant Yurcor, acting through McCann and Ticar, advised and conspired with each of the Defendant and Non-Defendant Employers to treat the Class Members as independent contractors despite Defendant Yurcor denominating the Class Members as its employees. Defendants schemed and conspired in order to enrich themselves and committed wage theft by (1 using Class Members wages to pay Defendant Framestore and Non-Defendant Employers share of payroll taxes; (2 charging many Class Members additional service fees (based on a percentage of earnings of Class Members paid to Defendant payroll company; and (3 not providing Class Members with the fringe benefits to which they would have been entitled 3

4 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 4 of 19 PageID #: 1816 had they been classified properly as employees of Defendant Framestore and Non-Defendant Employers. JURISDICTION AND VENUE 6. This Court has jurisdiction over the subject matter presented by this Complaint because it is a class action arising under the Class Action Fairness Act of 2005 ( CAFA, Public Law L. No Stat. 4 (2005, which explicitly provides for the original jurisdiction of the Federal Courts of any class action in which any member of the plaintiff class is a citizen of a state different from any defendant, and in which the matter in controversy exceeds in the aggregate amount of $5,000,000, exclusive of interest and costs. 7. Plaintiff alleges on information and belief that the total claims of the hundreds of Class Members in this action are in excess of $5,000,000 in the aggregate, exclusive of interest and costs, as required by 28 U.S.C. 1332(d(2, (5. 8. As set forth below, at all relevant Plaintiff Short was a citizen of New York and Defendant Yurcor was a citizen of the States of Delaware and Florida. At all relevant times, Defendant Framestore was a citizen of the State of New York. Based on information and belief, Defendants McCann and Ticar are citizens of Connecticut and Florida, respectively. 9. The total number of members of the proposed Plaintiff Class is greater than 100, pursuant to 28 U.S.C. 1332(d(5(B. 10. Venue in this judicial district is proper pursuant to 28 U.S.C. 1391(a because the named Plaintiff was a resident and citizen of this District at the time of the wrongdoing complained of herein and, based on information and belief, each Defendant has done, is doing business in and/or may be found in this District. 4

5 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 5 of 19 PageID #: The conduct of Defendant Framestore violates New York Labor Law 193, 195 and 198 and the conduct of all Defendants constitutes violations of common law (i.e., conversion. 12. Class Members seek lost wages, penalties, liquidated damages, interest, attorney s fees, costs and punitive damages, as well as a permanent injunction enjoining the Defendants unlawful conduct in the future. PARTIES 13. At all relevant times herein mentioned, Plaintiff Daniel Short was a resident of Kings County, New York. Plaintiff Short worked as an employee for Defendant Framestore as a visual effects artist and was payrolled by it through Yurcor at some time after six years before the date on which this action was commenced. 14. Plaintiff is informed and believes, and upon such information and belief, alleges that Defendants, and each of them, have done or are doing business in the State of New York, County of New York, Kings, Queens or Nassau. 15. Plaintiff alleges, based on information and belief, that Yurcor is a dba for Defendant Churchill Benefit Corporation. The Churchill Benefit Corporation is incorporated in the State of Delaware with its main business operations in the State of Florida and, at all times herein mentioned, was and has done or is doing business in the State of New York, County of New York, Kings, Queens, or Nassau. 16. Defendant Framestore operated a production company producing visual effects for commercials, animation and the other visual arts from locations in New York City. 5

6 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 6 of 19 PageID #: 1818 CLASS ACTION ALLEGATIONS 17. Plaintiff brings this action on his own behalf, as well as on behalf of each and all other persons similarly situated, and thus seeks class certification under Rule 23 of the Federal Rules of Civil Procedure ( FRCP. 18. The claims alleged herein for which Plaintiff seeks relief arise under and are authorized by New York law. 19. Plaintiff will seek to certify a class defined as: All individuals who on or after a date six years prior to the commencement of this action worked or performed artist services in New York for one or more of the Defendant and Non-Defendant Employers in the pre-production, production or post-production processes of motion pictures, television programs and commercials, advertising, game art or other visual content, as to whom Churchill Benefit Corporation dba Yurcor ( Yurcor performed services for the respective Defendant and Non-Defendant Employers and respective individual artist (for example, payroll processing services, Employer of Record services, or Yurcor s third party payroll services program. 20. There is a well-defined community of interest in the litigation, and the class members are easily ascertainable. 21. Numerosity: The members of the class are so numerous that joinder of all members would be unfeasible and impractical. The membership of the entire class is unknown to Plaintiff at this time. However, the class is estimated to be greater than 100 individuals, and the identity of such members is readily ascertainable by inspection of Defendants employment records. 22. Typicality: Plaintiff is qualified to, and will, fairly and adequately protect the interests of each Class Member, with whom he have a well-defined community of interest, and Plaintiff s claims are typical of the claims of all Class Members as demonstrated herein because, 6

7 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 7 of 19 PageID #: 1819 inter alia, all Class Members sustained damages arising out of Defendants common course of conduct in violation of New York law. 23. Adequacy: Plaintiff is an adequate representative of all Class Members, will fairly protect the interests of all Class Members, has no interests antagonistic to the other Class Members, and will vigorously pursue this action via attorneys who are competent, skilled and experienced in litigation matters of this type. 24. Superiority: The nature of this action makes the use of class action adjudication superior to other methods. A class action will achieve economies of time, effort and expense as compared with separate lawsuits, and will avoid inconsistent outcomes because the same issues can be adjudicated in the same manner and at the same time for the entire class. 25. Public Policy Considerations: Employers in the State of New York violate employment and labor laws every day. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing actions because they believe their former employers may damage their future endeavors through negative references and/or other means (e.g., blacklisting. Class actions provide the Class Members who are not named in the Complaint with a type of anonymity that allows for the vindication of their rights and at the same time protects their privacy. 26. Existence and Predominance of Common Questions of Fact and Law: There are common questions of fact and law as to Class Members which predominate over questions affecting only individual members, including, but not limited to: 1. Whether Defendants paid Class Members all wages owed; 2. Whether Defendant Framestore s conduct violated New York Labor Law 193; 7

8 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 8 of 19 PageID #: Whether Defendant Framestore s conduct violated New York Labor Law 195; 4. Whether Defendant Framestore s conduct violated New York Labor Law 198; 5. Whether Defendants committed conversion of the wages of Class Members; and 6. Whether each respective Defendant and Non-Defendant Employer and Defendant Yurcor are joint employers. 27. This action is properly maintained as a class action under FRCP Rule 23(b(1 and (2, in that Defendants have acted on grounds generally applicable to the class as alleged herein, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the Class as a whole. 28. Alternatively, this action is maintainable as a class action under FRCP Rule 23(b(3, because common questions of law and fact predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. In particular, Class Members have no interest in individually controlling the prosecution of separate actions given that litigation costs would be prohibitively expensive; for reasons of efficiency, it is desirable to concentrate litigation of class Members claims in a particular forum; and there are unlikely to be any significant difficulties in managing this case as a class action given the size of the Class. 29. Alternatively, this action is maintainable as a class action under FRCP 23(b(1, because of the uniform standards of conduct imposed by law, the prosecution of separate actions by individual members of the Class would create a risk of: (i inconsistent adjudications that 8

9 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 9 of 19 PageID #: 1821 would establish incompatible standards of conduct for Defendants, and/or (ii adjudications that would be dispositive of the interests of non-party class members or substantially impair such non-party class members ability to protect their interests. 30. If the Court were to certify under Rule 23(b(3 rather than under Rule 23(b(2 or (b(1, then the prerequisites of Rule 23(b(3 are met because Defendants maintained a uniform policy as to unauthorized and improper wage deductions and payroll processing, adjudication as to which will efficiently be completed as to all Class Members in a single trial or summary judgment proceeding. COMMON FACTUAL ALLEGATIONS 31. Defendant Framestore and Non-Defendant Employers employed one or more of the Class Members at some time during the period commencing six (6 years before the commencement of this action. 32. The Defendant Framestore and Non-Defendant Employers intention, which was not disclosed to Class Members, was to engage Class Members to perform as visual effects artists but treat them as independent contractors, all the while knowing they were employees. Upon information and belief, Defendant Framestore and Non-Defendant Employers sought to decrease the risk of being held liable for misclassifying Class Members as independent contractors. In order to accomplish their unlawful purpose, Defendant Framestore and Non- Defendant Employers contracted with Yurcor for Yurcor to be the Employer of Record. Yurcor, as an Employer of Record, was never the employer of Class Members except in name only. Yurcor, the agent of Defendant Framestore and Non-Defendant Employers, was merely a payroll company (providing payroll and tax reporting services that operated as part of an unlawful scheme of wage theft devised by all Defendants to take money lawfully belonging to 9

10 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 10 of 19 PageID #: 1822 Class Members. Defendant Framestore and Non-Defendant Employers, acting through their agent, Yurcor, characterized Class Members as the ostensible employees of Yurcor but treated them as independent contractors. For example, Yurcor issued W-2 forms to Class Members and deducted the employee s share of payroll tax deductions while making unauthorized deductions from the Class Members wages (that is, the daily rate for Yurcor s Administrative Overhead (which was identical in amount to the employer s share of payroll taxes, in order to pay for the employer s share of tax deductions and service fees to for Yurcor s payroll services. 33. Defendant Framestore and Non-Defendant Employers, who are production companies engaged in the business of developing and creating visual effects, identified, located, interviewed, negotiated wage rates and ultimately entered into oral or written employment contracts with Class Members, who are visual effects artists. These contracts, whether oral or written, confirmed each respective Class Member s employment with the respective Defendant Framestore and Non-Defendant Employers for particular time periods at a particular daily rate of pay. 34. Defendant Framestore and Non-Defendant Employers then advised Class Members to contact Yurcor and complete the necessary paperwork or that Yurcor would be contacting them. Yurcor then advised Class Members that Defendant Framestore and Non- Defendant Employers utilize Yurcor to engage freelance workers through Yurcor s third party payroll services program - Employer of Record (EOR. Yurcor also advised Class Members that [b]y using Yurcor s services you gain W-2 status and many of the benefits and services of a full time position while keeping all the career freedom and tax savings of a 1099 freelancer. Yurcor then ostensibly put Class Members on its payroll as employees, and pursuant to written agreements with Defendant Framestore and Non-Defendant Employers, provided Class 10

11 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 11 of 19 PageID #: 1823 Members to Defendant Framestore and Non-Defendant Employers who originally hired the Class Members. 35. Under the scheme, Yurcor was unlawfully compensated for its efforts from moneys that should have been paid to Class Members. Yurcor, acting as the agent of its principals, Defendant Framestore and Non-Defendant Employers, accomplished this by unilaterally changing the agreed upon daily wage rate to a Yurcor bill rate without authority from Class Members to do so. The Yurcor bill rate (the daily wage rate negotiated by Class Members with Defendant and Non-Defendant Employers was used by Yurcor to bill Defendant Framestore and Non-Defendant Employers for the work performed by Class Members. While Yurcor advised at least some Class Members as follows, it never obtained their written permission for these unlawful deductions: As an employee of Yurcor, the employer taxes are paid on your behalf through administrative overhead charges, and the employee taxes are withheld and remitted through your payroll. Yurcor administration overhead cost on the first $[ ] in gross payroll is [ ]%. After $[ ] in gross payroll the Yurcor administration overhead cost is [ ]%. 36. Yurcor used the wages earned by Class Members, employees of Defendant Framestore and Non-Defendant Employers but not of Yurcor, to pay Defendant Framestore and Non-Defendant Employers share of employer payroll taxes with the knowledge, consent and participation of Defendant Framestore and Non-Defendant Employers. 37. Defendant Framestore and Non-Defendant Employers, but not Yurcor, exercised total control over the manner in which the work was to be performed by Class Members as well as the result of their work. For example, Defendant Framestore and Non-Defendant Employers had the sole authority to hire, determine the wages, terms and conditions of employment, 11

12 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 12 of 19 PageID #: 1824 transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline Class Members. Defendant Framestore and Non-Defendant Employers required Class Members to work on their premises at set work hours, using its tools, equipment and materials (e.g., computer hardware and software, and under its supervision. Defendant Framestore and Non-Defendant Employers supervisors simultaneously supervised Class Members and individuals who performed the identical work as on-staff employees of the Defendant Framestore and Non-Defendant Employers (that is, not payrolled through Yurcor. 38. Yurcor s primary role was to disguise employees of Defendant Framestore and Non-Defendant Employers as Yurcor s employees. If Defendant Framestore and Non-Defendant Employers had hired Class Members directly as independent contractors, the Class Members would have been obviously misclassified because they are employees in fact and law. Class Members were employees of Yurcor in name only, and Defendant Framestore and Non- Defendant Employers and Yurcor treated Class Members as independent contractors (e.g., by deducting employer payroll taxes (that is, Yurcor s Administrative Overhead and service fees from, and paying for no fringe benefits to, the Class Members. 39. Yurcor only employed individual artists who were pre-approved by Defendant Framestore or Non-Defendant Employers. Among some of the many typical employer functions Yurcor never performed, Yurcor did not recruit Class Members, negotiate daily pay rates or other terms and conditions of employment with Class Members, or supervise, assign work to or discipline Class Members. 40. By way of example, Plaintiff Daniel Short, a resident of Brooklyn, New York at all relevant times, was engaged as a visual effects artist, specifically a compositor, by Defendant 12

13 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 13 of 19 PageID #: 1825 Framestore, a visual effects company in New York, New York, for a total of approximately eight months between June 2012 and June (i (ii (iii (iv (v Several Framestore employees interviewed Short for a visual effects artist position with the company. Framestore s film division rejected Short but its commercial division accepted him for work. Short then agreed with Evan Reinhard, a producer at Framestore, to a daily rate of $600/weekday and $650/weekend day for a 10 hour day and an hourly rate of $75 for each additional hour worked past 10 on any day. Short s agreement for his services with Framestore was oral. Framestore then referred Short to Yurcor to complete the required paperwork for his engagement. Short signed a written agreement on Yurcor letterhead, entitled General Agreement Letter, on June 17, 2011, agreeing to be paid by Yurcor while at Framestore as stated above. Yurcor took Short s daily rate agreed upon by him with Framestore and used it as the Yurcor bill rate -- that is, Yurcor billed Framestore for Short s work at Framestore at that rate. Yurcor then paid Short at a lower rate, which rate was the agreed daily rate between Short and Framestore less the Framestore s employer share of payroll taxes (aka Yurcor s Administrative Overhead. Short performed the same work under the same supervision as a Framestore on-staff employee both Short and on-staff employees were supervised by a producer in the commercial television division. Short worked solely for and at Framestore s studio when working for Framestore. Framestore set work hours as being from 10 am to 7 pm each day for its on-staff employees and those payrolled through Yurcor. Short was required to use Framestore equipment (computers, hardware and software. Framestore had and exercised total control over the work performed and the results achieved by Short. Yurcor had no right to control nor did it exercise any authority over the work performed and results achieved by Short at Framestore. Short s contacts with Yurcor were never in person but primarily through s with Yurcor s Florida office. Short earned approximately $100,000 during the period of his employment with Framestore at his agreed upon daily rate, but approximately $15,000 was deducted without authorization and otherwise illegally for Yurcor s Administrative Overhead (that is, the employer payroll taxes due from Framestore. 13

14 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 14 of 19 PageID #: Class Members were employees of Defendant Framestore and Non-Defendant Employers and should not have been treated as independent contractors. Yurcor was a payroll company and agent of Defendant Framestore and Non-Defendant Employers in that capacity but not an employer of Class Members. Yurcor was not authorized by Defendant Framestore and Non-Defendant Employers to change the negotiated daily rate of Class Members. The Class Members did not authorize payroll deductions for the purpose of paying Defendant Framestore and Non-Defendant Employers, and/or Yurcor s ostensible, employer payroll taxes, which was illegal wage theft even if authorized. 42. In addition, Yurcor charged a service fee for its services in the scheme. The respective Employer and/or Class Members paid the service fee which was approximately 5% of the rate the Class Members had agreed upon with Defendant Framestore and Non-Defendant Employers. Class Members did not authorize payroll deductions for the purpose of payment of Yurcor s service fee, which would have been illegal even if authorized. PENALTIES, LIQUIDATED DAMAGES, ATTORNEY S FEES AND COSTS 43. New York Labor Code 198 provides that any employee who prevails in any action for wages shall be entitled to recover the full amount of any underpayment, reasonable attorney s fees, pre-judgment interest and an additional amount of liquidated damages equal to 100 percent of the total amount of the wages found to be due. FIRST CLAIM (For Violation of Labor Law 193 against Defendant Framestore Only 44. Plaintiff incorporates the allegations contained in the preceding paragraphs as though fully set forth herein. 45. New York Labor Law 193(1 provides: 14

15 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 15 of 19 PageID #: 1827 No employer shall make any deductions from the wages of an employee, except deductions which (a are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency including regulations promulgated under paragraph c and paragraph d of this subdivision; or (b are expressly authorized in writing by the employee and are for the benefit of the employee, provided that such authorization is voluntary and only given following receipt by the employee of written notice of all terms and conditions of the payment and/or its benefit and the details of the manner in which deductions will be made. 46. New York Department of Labor Regulations, 12 NYCRR provides: (a Wage Deductions. No employer shall make any deductions from wages except as that fall within the following four categories: (1 Any deductions made in accordance with any law, rule or regulation issued by any governmental agency; (2 Deductions specified by, or similar to those specified by, section 193 of the Labor Law, authorized by, and for the benefit of, the employee; (3 Deductions for the recovery of overpayments made in accordance with this Part; and (4 Deductions for the repayment of wage advances made in accordance with this Part. 47. While New York Labor Law 193(1(b allows for certain deductions from wages that are authorized by, and for the benefit of, the employee, 12 NYCRR (b provides that convenience is not a recognized benefit for purpose of determining whether any given deduction is for the benefit of the employee NYCCR (g provides that deductions for the employer s administrative costs are prohibited deductions. 49. Defendant Framestore violated New York Labor Law by unlawfully deducting Yurcor s Administrative Overhead (a euphemism for employer payroll taxes and service fees from Class Members wages without written authorization. 15

16 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 16 of 19 PageID #: 1828 SECOND CLAIM (Violation of Labor Law 195 against Defendant Framestore Only 50. Plaintiff incorporates the allegations contained in the preceding paragraphs as though fully set forth herein. 51. New York Labor Law 195(1 requires that employers provide to employees at the time of hire and every subsequent year details concerning whether the employee is paid by the hour, shift, day, week, salary, piece, commission or otherwise. It further provides that the employer must obtain a signed and dated written acknowledgement from each employee confirming that this notice was provided each and every year. 52. Defendant Framestore and Non-Defendant Employers violated this section by failing to provide Class Members with such notice and by willfully misclassifying or mistreating Class Members as independent contractors in order to avoid their employee status as to Defendant Framestore and Non-Defendant Employers. 53. As a result of these violations of the New York Labor Law, Class Members are entitled to the relief set forth herein. THIRD CLAIM (For Conversion against All Defendants 54. Plaintiff incorporates the allegations contained in the preceding paragraphs as though fully set forth herein. 55. At all times herein mentioned, Class Members were, and are, entitled to all wages promised and owed to them by Defendant Framestore and/or Non-Defendant Employers. 56. Defendant Framestore and Non-Defendant Employers paid Defendant Yurcor specific amounts designated for the payment of Class Members wages that Yurcor, acting 16

17 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 17 of 19 PageID #: 1829 through McCann and Ticar, withheld, without written authorization and otherwise unlawfully, from Class Members. Defendants, and Non-Defendant Employers, knew, or should have known, of such improper deductions/withholding and failed to cure same. Defendants took the property described above from Class Members and converted the same to their own use. 57. As a proximate result of Defendants conversion, Plaintiff is entitled to all damages that are the natural, reasonable and proximate result of the conversion in an amount to be determined at the time of trial. 58. At the time Defendants converted the property, Defendants were guilty of malice, oppression, and a willful and conscious disregard of the rights of Plaintiff in that Defendants, with reckless indifference and willful and conscious disregard for the rights of any person who may have an interest in the converted property, and particularly for the rights of Plaintiff, did convert the property. 59. Further, after knowledge and notice of Plaintiff s interest in the converted property was given to Defendants, Defendants failed and refused, and continue to fail and refuse, to return the property. By reason of these acts, Plaintiff has been oppressed and seek punitive and exemplary damages. WHEREFORE, Plaintiff prays for Judgment against Defendants, as follows: ON THE FIRST CLAIM BY PLAINTIFF AGAINST DEFENDANT FRAMESTORE ONLY FOR VIOLATION OF LABOR LAW 193 proof. Members. 1. For all actual, consequential and incidental losses and damages according to 2. For penalties pursuant to Labor Law 198 for Plaintiff and all other Class 3. For pre-judgment interest at the legal rate pursuant to Labor Law

18 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 18 of 19 PageID #: For attorneys fees and costs pursuant to Labor Law 198 or as otherwise permitted by statute. 5. For liquidated damages pursuant to Labor Law 198. ON THE SECOND CLAIM BY PLAINTIFF AGAINST DEFENDANT FRAMESTORE ONLY FOR VIOLATION OF LABOR LAW 195 proof. Members. 6. For all actual, consequential and incidental losses and damages according to 7. For penalties pursuant to Labor Law 198 for Plaintiff and all other Class 8. For pre-judgment interest at the legal rate pursuant to Labor Law For attorneys fees and costs pursuant to Labor Law 198 or as otherwise permitted by statute. 10. For liquidated damages pursuant to Labor Law 198. ON THE THIRD CLAIM BY PLAINTIFF AGAINST DEFENDANTS, AND EACH OF THEM, FOR CONVERSION 11. For damages in an amount to be determined at the time of trial. 12. For punitive and exemplary damages. 13. For costs of suit herein incurred. ON ALL CLAIMS 14. For such other relief as the Court may deem proper. 18

19 Case 1:14-cv MKB-JO Document 114 Filed 05/13/16 Page 19 of 19 PageID #: 1831 DEMAND FOR JURY TRIAL PLAINTIFF AND CLASS MEMBERS HEREBY DEMAND A JURY TRIAL. Dated: May 13, 2016 Respectfully submitted, /s/ Richard B. Brualdi RICHARD B. BRUALDI (RB-1304 GAITRI BOODHOO (GB-1304 LAUREN C. WATSON (LW-1822 THE BRUALDI LAW FIRM, P.C. 29 Broadway, 24 th Floor New York, NY Telephone: ( Facsimile: ( rbrualdi@brualdilawfirm.com ARTHUR GREBOW (admitted pro hac vice GREBOW & RUBIN, LLP Ventura Boulevard, Suite 260 Encino, CA Telephone: ( Facsimile: ( agrebow@grebowrubinlaw.com STUART LIBICKI (admitted pro hac vice SCHWARTZ, STEINSAPIR, DOHRMANN & SOMMERS LLP 6300 Wilshire Boulevard, Suite 2000 Los Angeles, CA Telephone: ( Facsimile: ( sl@ssdslaw.com WILLIAM T. PAYNE (admitted pro hac vice PAMINA EWING (admitted pro hac vice FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 429 Forbes Avenue, 17 th Floor Pittsburgh, PA Telephone: ( Facsimile: ( wpayne@fdpklaw.com pewing@fdpklaw.com Attorneys for Plaintiff 19