IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Transcription

1 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PETER ENEA, VICTOR MCLEAN, CHANTAY DINGLE-EL, KENNY ALTIDOR, individually and on behalf of others similarly situated, Case No. 12 CV 4656 (GBD) v. Plaintiffs, BLOOMBERG L.P., Defendant. BRIEF IN SUPPORT OF MOTION TO CERTIFY A CLASS AND APPROVE CLASS AND COLLECTIVE ACTION NOTICE Respectfully Submitted, /s/ Dan Getman Dan Getman (DG 4613) Artemio Guerra (on the brief)(ag 2005) Getman Sweeney, PLLC 9 Paradies Lane New Paltz, NY (845) Counsel for Plaintiffs

2 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 2 of 33 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii INTRODUCTION... 1 STATEMENT OF FACTS... 2 ARGUMENT... 3 I. A CLASS ACTION IS APPROPRIATE IN THIS CASE... 3 A. The Class is So Numerous that Joinder is Impractical... 6 B. Typicality and Commonality... 7 C. Representativeness Class Counsel is Adequate The Representatives Are Adequate D. Present Counsel Should Be Appointed Class Counsel E. The Requirements of Rule 23(b)(3) Are Met Common Questions of Law and Fact Predominate A Class Action Is a Superior Method of Adjudication II. THE FLSA CLASS IS SIMILARLY SITUATED A. The FLSA Is a Remedial Statute B. The Class is Similarly Situated C. Notice Should Be Sent to Similarly Situated Employees III. DEFENDANT SHOULD BE DIRECTED TO SUPPLY NAMES AND CONTACT INFORMATION TO FACILITATE PROMPT AND EFFECTIVE NOTICE TO PUTATIVE CLASS MEMBERS IV. PLAINTIFF S PROPOSED NOTICE SHOULD BE MAILED AND POSTED i

3 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 3 of 33 CONCLUSION ii

4 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 4 of 33 TABLE OF AUTHORITIES Cases A.H. Phillips v. Walling, 324 U.S. 490 (1945) Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) Amendola v. Bristol-Myers Squibb Co, 558 F.Supp.2d at 459 (S.D.N.Y. 2008) Ansoumana v. Gristede s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001)... 3, 4 Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52 (2 nd Cir. 2000)... 9 Barrentine v. Arkansas Best Freight System, Inc., 450 U.S. 728 (1981) Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir.1948) Beall v. Tyler Technologies, Inc., No. CIVA 208-CV-422 TJW, 2009 WL (E.D. Tex. Sept. 23, 2009) Bond v. Ferguson Enterprises, Inc., No. 1:09 cv 1662 OWW MJS, 2011 WL (E.D.Cal. June 30, 2011) Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (1979) Bredbenner v. Liberty Travel, Inc., No , 2011 U.S. Dist. LEXIS (D.N.J. Apr. 8, 2011) Brzychnalski v. Unesco, Inc., 35 F. Supp. 2d 351 (S.D.N.Y. 1999)... 4 Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. N.Y. 1999)... 9 Castillo v. P & R Enterprises, Inc., 517 F.Supp.2d 440 (D.D.C. 2007) Collins v. Cargill Meat Solutions Corp., No. 1:10 cv 00500, 2011 WL OWW MJS (E.D.Cal. June 28, 2011) Consolidated Rail Corp v. Town of Hyde Park, 47 F.3d 474 (2 nd Cir. 1995)... 6 Crown, Cork & Steel Co., Inc. v. Parker, 462 U.S. 345 (1983) Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008) Davis v. Abercrombie & Fitch Co., No. 08 CIV 1859(PKC), 2008 WL (S.D.N.Y. 2008) iii

5 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 5 of 33 Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968)... 6 Duling v. Gristede's Operating Corp., 267 F.R.D. 86 (S.D.N.Y. 2010)... 7, 8, 9 Espinoza v. 953 Associates LLC, 280 F.R.D. 113 (S.D.N.Y. 2011)... 5, 11 Flores v. Anjost Corp., No. 11 Civ (CM ), 2012 U.S. Dist. LEXIS (S.D.N.Y. June 19, 2012)... 3, 5, 12 Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674 (S.D.N.Y. 1981) Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176 (2 nd Cir. 1990)... 9 Garza v. Chicago Transit Authority, No. 00 C 0438, 2001 WL (N.D. Ill. May 8, 2001) Giles v. City of New York, 41 F.Supp.2d 308 (S.D.N.Y. 1999) Gortat v. Capala Bros., Inc., 257 F.R.D. 353 (E.D.N.Y. 2009)... 5, 20 Gortat v. Capala Broths., Inc., No. 07-CV-3629 (ILG), 2010 WL (E.D.N.Y. Apr. 9, 2010)... 9, 20 Harrington v. Educ. Mgmt. Corp., No. 02 CIV (HB), 2002 WL (S.D.N.Y. June 19, 2002) Hernandez v. Starbucks Coffee Company, No CIV, 2011 WL (S.D. Fla. June 29, 2011) Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000)... 8 Hoffman - LaRoche v. Sperling, 493 U.S. 165 (1989)... 18, 22 Hoffman v. Sbarro, Inc., 982 F. Supp. 249 (S.D.N.Y. 1997) (Sotomayor, J.)... 19, 20 Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007)... passim In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303 (S.D.N.Y. 2004)... 8 In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2nd Cir. 1992) In re Laser Arms Corp. Sec. Litig., 794 F.Supp. 475 (S.D.N.Y. 1989)... 7 In re NYSE Specialists Sec. Litig., 260 F.R.D. 55 (S.D.N.Y. 2009)... 8 In re Visa Check/MasterMoney, 280 F.3d 124 (2 nd Cir. 2001)... 15, 16 iv

6 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 6 of 33 In re WorldCom, Inc. Securities Litigation, 219 F.R.D. 267 (S.D.N.Y. 2003) Initial Public Offering Securities Litigation v. Merrill Lynch & Co., Inc. 471 F.3d 24 (2 nd Cir. 2006)... 5 Jacobsen v. Stop & Shop Supermarket Co., No. 02 CIV (DLC), 2003 WL (S.D.N.Y. May 15, 2003) Jankowski v. Castaldi, No. 01CV0164(SJF)(KAM), 2006 WL (E.D.N.Y. Jan. 13, 2007) Johnson v. American Airlines, 531 F.Supp. 957 (S.D. Tex. 1982) Korn v. Franchard Corp., 456 F.2d 1206 (2 nd Cir.1972)... 6 Kowalski v. YellowPages.com, LLC, No. 10 CIV PGG, 2012 U.S. Dist. LEXIS 46539, 2012 WL (S.D.N.Y. Mar. 31, 2012)... 5 Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623 (E.D. Ca. 2009) Krueger v. New York Tel. Co., No. 93 CIV (LMM), 1993 WL (S.D.N.Y. July 21, 1993) Krueger v. NY Telephone Company, 163 F.R.D. 433 (S.D.N.Y. 1995)... 4, 9 Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2006)... 3, 17 Lewis Tree Serv., Inc. v. Lucent Techs.,211 F.R.D. 228 (S.D.N.Y. 2002)... 5 Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124 (N.D. Ca. 2009) Lynch v. United Services Auto. Ass'n, 491 F.Supp.2d 357 (S.D.N.Y. 2007)... 20, 22 Marisol A. v. Giuliani, 126 F.3d 372 (2nd Cir. 1997)... 8, 9 Masson v. Ecolab, Inc,. No. 04 CIV (MBM), 2005 WL (S.D.N.Y. Aug. 17, 2005) McKinzie v. Westlake Hardware, Inc., No CV-W-FJG, 2010 WL (W.D.Mo. June 11, 2010) Moore v. PaineWebber, Inc. 306 F.3d 1247 (2d Cir. 2002) Morangelli v. Chemed Corp., 275 F.R.D. 99 (E.D.N.Y. 2011) Morris v. Affinity Health Plan, Inc., No. 09 CIV ALC, 2012 U.S. Dist. LEXIS 64650, 2012 WL (S.D.N.Y. May 8, 2012) v

7 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 7 of 33 Myers v Hertz Corp., 624 F.3d 537 (2d Cir. 1020)... 5 Noble v. 93 University Place Corporation, 224 F.R.D. 330 (S.D.N.Y. 2004)... 3, 14, 16 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) Patton v. The Thomson Corp., 364 F.Supp.2d 263 (E.D.N.Y.2005)... 19, 20, 21 Pefanis v. Westway Diner, Inc., No. 08 CIV. 002 (DLC), 2008 WL (S.D.N.Y. Oct. 8, 2008) Pippins v. KPMG LLP, No. 11 Civ. 0377(CM)(JLC), 2012 WL (S.D.N.Y. Jan. 3, 2012) Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346 (E.D.N.Y. 2011) Reynolds v. Giuliani, 118 F.Supp.2d 352 (S.D.N.Y. 2000)... 6 Robidoux v. Celani, 987 F.2d 931 (2nd Cir. 1993)... 6, 7, 8, 10 Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2 nd Cir. 2001)... 8 Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006) Schwed v. General Electric Co., 159 F.R.D. 373 (N.D.N.Y. 1995) Shabazz v. Morgan Funding Corp., 269 F.R.D. 245 (S.D.N.Y. 2010) Shady Grove Orthopedic Associates, P.A., v. Allstate Ins. Co., 130 S.Ct (2010)... 4 Shankroff v. Advest, Inc., 112 F.R.D. 190 (S.D.N.Y. 1986)... 6 Sherrill v. Sutherland Global Servs. Inc., 487 F.Supp.2d 344 (W.D.N.Y. 2007) Sipas v. Sammy s Fishbox, Inc., No. 05 CIV (PAC), 2006 WL (S.D.N.Y. April 24, 2006) Smellie v. Mount Sinai Hosp., No. 03CIV.0805(LTS)(DFE), 2004 WL (S.D.N.Y. Nov. 29, 2004)... 5 Sobczak v. AWL Industries, Inc. 540 F.Supp.2d 354 (E.D.N.Y. 2007)... 19, 20 Soler v. G&U, Inc., 86 F.R.D. 524 (S.D.N.Y. 1980) Somerville v. Major Exploration, Inc., 102 F.R.D. 500 (S.D.N.Y. 1984)... 6 Spann v. AOL Time Warner, Inc., 219 F.R.D. 307 (S.D.N.Y. 2003)... 9 vi

8 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 8 of 33 Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67 (E.D.N.Y. 2004) Tenn. Coal, Iron & R.R. Co., et al. v. Muscoda Local No. 123, et al., 321 U.S. 590 (1944) Torres v. Gristede's Operating Corp., No. 04 CIV (PAC), 2006 WL (S.D.N.Y. Sept. 29, 2006)... 19, 20 Toure v. Cent. Parking Sys., No. 05CIV.5237(WHP), 2007 WL (S.D.N.Y. 2007)... 7 Velez v. Majik Cleaning Service, Inc., No. 03 CIV (SAS), 2005 WL (S.D.N.Y. Jan. 19, 2005)... 3 Veliz v. Cintas, No. C SBA, 2004 WL (N.D. Cal. 2004) Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct (2011) Statutes 29 U.S.C U.S.C U.S.C. 216(b)... 6, U.S.C N.Y. Labor Law Article 6, New York Labor Law New York Labor Law , 11 Rules Fed. R. Civ. P , 20 Regulations 12 NYCRR part C.F.R vii

9 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 9 of 33 INTRODUCTION This is a wage and hour case raising overtime claims under state and federal labor law. Plaintiffs bring this case as a collective action under the Fair Labor Standards Act (FLSA) on behalf of a class of call-center telephone support staff employed by Defendant to provide technical support for Defendant s customers. Plaintiffs are or were employed by Defendant as GTEC Representatives to provide technical support for Defendant's customers who lease Bloomberg Terminals and encounter problems with their terminal and/or software products. Plaintiffs were not paid overtime at the rate of time and one half for all hours worked over forty in a workweek. Plaintiffs bring their federal overtime claims as a collective action under 29 U.S.C. 216(b). Plaintiffs also bring this case as a class action under Fed. R. Civ. P. 23 under New York overtime laws. New York Labor Law 652, 663 and implementing regulations including but not limited to 12 NYCRR part 142. Defendant paid Plaintiffs a salary for 40 hours a week of scheduled shift work. Plaintiffs were not exempt from overtime under the administrative, professional, executive, or computer professional exemptions. Defendant failed to pay Plaintiffs for the work they did off the clock from home, before and after their regular shifts, and during meal periods. Every week Plaintiffs worked approximately ten or more hours in excess of their 40 hour workweek. Defendant did not pay Plaintiffs overtime premium pay for hours worked over 40 in a workweek as required by federal and state law. Plaintiffs seek class action certification, under Rule 23, for New York State Labor Law claims and approval of the class notice informing class members of the pending action and the mechanisms by which they may assert FLSA and state claims in this case. 1

10 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 10 of 33 STATEMENT OF FACTS Defendant Bloomberg L.P. is a Delaware company registered in New York. The Defendant lists its business address as 731 Lexington Avenue, New York, New York Defendant s business is a multinational mass media corporation that provides financial software tools such as analytics and equity trading platforms, data services and news to financial companies and organizations around the world through the Bloomberg Terminal. Plaintiffs worked approximately ten hours in excess of their 40 hour workweek on average. Defendant did not pay Plaintiffs overtime for hours worked over 40 in a workweek as required by federal and state law. Plaintiffs were not exempt from overtime under the administrative, professional, executive, or computer professional exemptions. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl In fact, Defendant never identified any specific exemption to the federal overtime law for GTEC Representatives. See Enea Decl. 25; McLean Decl. 26; Dingle-El Decl. 26; Altidor Decl. 26. Plaintiffs were scheduled to work eight hours per day, with an unpaid lunch hour during the work day, five days a week. See Enea Decl. 9; Mclean Decl. 9; Dingle-El Decl. 9; Altidor Decl. 9. Defendant had a policy requiring class members to work off the clock by requiring and encouraging them to work from home, before and after their regular shifts, and during meal periods. See Enea Decl ; Mclean Decl ; Dingle-El Decl ; Altidor Decl In addition to answering customer s calls for support during their scheduled shifts, Plaintiffs were responsible for 20 or more cases of customers requiring ongoing support. See Enea Decl. 8; Mclean Decl. 8; Dingle-El Decl. 8; Altidor Decl. 8. Defendant required Plaintiffs to work before the beginning of their shifts on these open cases by reviewing and 2

11 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 11 of 33 responding to s and phone calls from Bloomberg supervisors, additionally, Plaintiffs were required to come into work before their scheduled shifts to allow additional time to log into Bloomberg s terminal. See Enea Decl. 11; Mclean Decl. 11; Dingle-El Decl. 11; Altidor Decl. 11. Plaintiffs had to work during unpaid meal periods to complete calls. See Enea Decl. 14; Mclean Decl. 14; Dingle-El Decl. 14; Altidor Decl. 14. Plaintiffs also performed additional work past the end of their shifts including finishing their last calls, updating all their cases, and logging off of the computer systems. See Enea Decl ; Mclean Decl ; Dingle-El Decl ; Altidor Decl In addition to pre and post shift work assignments, Plaintiffs were required to work from home updating databases, preparing for certifications and exams, and responding to work s. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl Because of these additional tasks, Plaintiffs usually worked approximately an additional ten hours every week without receiving compensation at a premium for these hours. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl ARGUMENT I. A CLASS ACTION IS APPROPRIATE IN THIS CASE Courts in this District regularly permit classing state wage claims along with a federal FLSA collective action. Flores v. Anjost Corp., No. 11 Civ (CM ), 2012 U.S. Dist. LEXIS (S.D.N.Y. June 19, 2012); Ansoumana v. Gristede s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007); Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2006); Velez v. Majik Cleaning Service, Inc., No. 03 CIV (SAS), 2005 WL (S.D.N.Y. Jan. 19, 2005); Noble v. 93 University 3

12 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 12 of 33 Place Corporation, 224 F.R.D. 330 (S.D.N.Y. 2004); See also Krueger v. NY Telephone Company, 163 F.R.D. 433 (S.D.N.Y. 1995); Brzychnalski v. Unesco, Inc., 35 F. Supp. 2d 351 (S.D.N.Y. 1999) (state wage class certified along with federal FLSA collective action). In Ansoumana, the seminal case in this area, the court held that classing a state claim in no way conflicted with the FLSA s collective action procedures and there was a substantial judicial interest to avoid additional and unnecessary lawsuits of similar issues in other state and federal courts. 201 F.R.D. at 89. The court held that because the FLSA claims and the state wage claims arise from the same nucleus of operative facts, are substantially related to each other, and naturally would be treated as one case and controversy the state claims ought to be brought with the federal under doctrines of supplemental jurisdiction. Id. at 93. Courts in this District have not had difficulty administering state class actions and FLSA collective actions in the past. There is no requirement that the procedural rules of state class actions should be adopted into federal class actions. In Shady Grove Orthopedic Associates, P.A., the United States Supreme Court held that federal class actions based on state law claims were to be governed by Rule 23 and not by state class rules. Shady Grove Orthopedic Associates, P.A., v. Allstate Ins. Co., 130 S.Ct (2010). The class notice required by a combined FLSA collective action and a state class is not too complex to be manageable. [I]t is true that the maintenance of an opt-in FLSA collective action concurrently with an opt-out Rule 23(b)(3) class action on the state law claims raises particular challenges from the communications point of view. The Court is confident, however, that, with appropriate attention from able counsel and the Court, class members can be afforded effective notice that will appropriately protect their rights and make clear their opportunities in 4

13 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 13 of 33 connection with this litigation. Smellie v. Mount Sinai Hosp., No. 03CIV.0805(LTS)(DFE), 2004 WL , *7 (S.D.N.Y. Nov. 29, 2004). The proposed notice submitted by plaintiff shows that there is no inherent complexity too great for reasonable notice to be practicable. See Ex. 1. At this point, courts have certified hundreds, if not thousands of combined class and collective actions and never has such a court found the case too complex to manage. The Second Circuit clarified the court s responsibilities in determining a Rule 23 class certification, in Initial Public Offering Securities Litigation v. Merrill Lynch & Co., Inc. 471 F.3d 24, 41 (2 nd Cir. 2006), a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met. The court went on to find that the fact that determining a Rule 23 requirement overlapped with a merits review did not preclude such a review. The certifying court should not make any factual findings or merits determinations that are not necessary to the Rule 23 analysis, however, and any factual determinations made at the certification stage are not binding on a subsequent fact-finder, even the certifying court. In re Initial Pub. Offering Sec. Litig.,471 F.3d at 41. "A motion for class certification should not... become a mini-trial on the merits." Lewis Tree Serv., Inc. v. Lucent Techs.,211 F.R.D. 228, 231 (S.D.N.Y. 2002). "The dispositive question is not whether the plaintiff has stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Kowalski v. YellowPages.com, LLC, No. 10 CIV PGG, 2012 U.S. Dist. LEXIS 46539, 2012 WL , at *12 (S.D.N.Y. Mar. 31, 2012) (quoting Lucent Techs., 211 F.R.D. at 231). In sum, the Court's task at the Rule 23 stage is not to resolve the liability question, but to decide "whether the constituent issues that bear on [Defendants'] ultimate liability are provable in common." Myers v Hertz Corp., 624 F.3d 537, 549 (2d Cir. 1020) (emphasis added)."the Second Circuit has emphasized that Rule 23 should be given liberal rather than restrictive construction, and it seems beyond peradventure that the Second Circuit's general preference is for granting rather than denying class certification." Espinoza v. 953 Associates LLC, No. 10 CIV SAS, 2011 U.S. Dist. LEXIS , 2011 WL , *6 (S.D.N.Y. Nov. 16, 2011) (quoting Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361 (E.D.N.Y. 2009)). 5

14 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 14 of 33 Flores, 2012 U.S. Dist. LEXIS 85171, at * A. The Class is So Numerous that Joinder is Impractical Courts do not have a bright line rule for numerosity, however, generally classes of more than forty individuals fulfill the numerosity requirement of Rule 23(a)(1). Iglesias- Mendoza, 239 F.R.D. at 370 ( citing Robidoux v. Celani, 987 F.2d 931 (2nd Cir. 1993) holding that joinder can be impracticable where the prospective class consists of 40 members or more); See Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2 nd Cir.1972) ("Forty investors have been held to represent a sufficiently large group" for class action); Consolidated Rail Corp v. Town of Hyde Park, 47 F.3d 474 (2 nd Cir. 1995) ( [N]umerosity is presumed at a level of 40 members. ) While the exact number of class members is only within the knowledge of Defendant, Plaintiffs corroborate that the class is likely to exceed forty. Plaintiffs declarations show that there were approximately forty representatives working at any one time. See Enea Decl. 7; McLean Decl. 7; Dingle-El Decl. 7; Altidor Decl. 7. Given the certainty of turnover over a six year limitation period, N.Y. Labor Law 663(3), the class easily exceeds forty members. In satisfying Rule 23's numerosity requirement, "plaintiff's failure to state the exact number of the class does not militate against the maintenance of a class action". Shankroff v. Advest, Inc., 112 F.R.D. 190 (S.D.N.Y. 1986); Somerville v. Major Exploration, Inc., 102 F.R.D. 500, 503 (S.D.N.Y. 1984) (citations omitted); Dolgow v. Anderson, 43 F.R.D. 472, (E.D.N.Y. 1968), rev'd on other grounds, 438 F.2d 825 (2 nd Cir. 1970). "Impracticable" simply means difficult or inconvenient, not impossible. See Robidoux v. Celani, 987 F.2d 931, 935 (2nd Cir. 1993); Reynolds v. Giuliani, 118 F.Supp.2d 352, 388 6

15 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 15 of 33 (S.D.N.Y. 2000). Further, plaintiff does not need to provide a precise number for the class size. See Robidoux, 987 F.2d at 935; In re Laser Arms Corp. Sec. Litig., 794 F.Supp. 475, 494 (S.D.N.Y. 1989) ("Since the numerosity requirement speaks in terms of impracticability rather than impossibility, plaintiffs need not enumerate the precise number of potential plaintiffs in the class when reasonable estimates will suffice.") Nor does meeting the numerosity requirement rely on having forty or more plaintiffs. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (impracticality of joinder depends on the circumstances of the case, not on mere numbers); Toure v. Cent. Parking Sys., No. 05CIV.5237(WHP), 2007 WL at *6 fn 2 (S.D.N.Y. 2007) (court would certify State law claims that parallel FLSA claims for class of because judicial economy would be served by hearing all overtime claims in one action. ) Although it is unclear precisely how many employees are members of the class, there are likely more than a hundred and certainly there are more than forty class members. Numerosity is clearly met. B. Typicality and Commonality Rule 23(a)(2) requires that there be "questions of law or fact common to the class," whereas Rule 23(a)(3) requires that the "claims or defenses of the representative parties are typical of the claims or defenses of the class." "The commonality and typicality requirements, together, require Plaintiffs to show that they raise questions of fact or law, arising out of a single course of conduct or set of events, that are common to all putative class members and that their individual claims and circumstances are sufficiently similar to those of the absent class members so as to ensure that the named plaintiffs will press the claims of all class members." Duling v. Gristede's Operating Corp., 267 F.R.D. 86, 97 (S.D.N.Y. 2010). The requirement of typicality, Rule 23(a)(2), overlaps or merges with that of commonality, Rule 23(a)(3). Iglesias-Mendoza, 7

16 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 16 of F.R.D. at ; In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303, 307 (S.D.N.Y. 2004) (citing Marisol A. v. Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997)) ("The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)."). " Even a single common legal or factual question will suffice" to satisfy the commonality requirement as to a particular claim. In re NYSE Specialists Sec. Litig., 260 F.R.D. 55 (S.D.N.Y. 2009); Duling, 267 F.R.D. at 96. Here, there are numerous "questions of law or fact common to the class" such as: 1. Whether Defendant suffered or permitted Plaintiffs to work hours over forty; 2. Whether Defendant knew that Plaintiffs worked hours over forty; 3. Whether Defendant s failure to pay additional compensation for overtime work was lawful; 4. Whether Defendant s failure to pay additional compensation for overtime work was willful or in good faith. With these common questions, Plaintiffs have established commonality. Id. "The crux of [the typicality] requirement[ ] is to ensure that 'maintenance of a class action is economical and [that] the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. " Marisol, 126 F.3d at 376 (internal citation omitted); accord Hirschfeld v. Stone, 193 F.R.D. 175, (S.D.N.Y. 2000). Specifically, the "typicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability... irrespective of minor variations in the fact patterns underlying the individual claims." Robidoux, 987 F.2d at ; accord Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2 nd Cir. 2001). However there is no 8

17 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 17 of 33 requirement that the precise factual circumstances of each class plaintiff s claim be shared by the named plaintiff. Gortat v. Capala Broths., Inc., No. 07-CV-3629 (ILG), 2010 WL , at *4 (E.D.N.Y. Apr. 9, 2010). The factual background of the named plaintiffs claim need not be identical to that of the putative class members as long as "the disputed issue of law or fact occup[ies] essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. N.Y. 1999) (citing Krueger, 163 F.R.D. at 442) Under this court s jurisprudence, a single common question of law or fact may suffice. Iglesias-Mendoza, 239 F.R.D. at 372; see also Marisol v. Giuliana, 126 F.3d 372 (2nd Cir. 1997). Here, the Named Plaintiffs claims are typical of the claims of the class insofar as all were paid on the same salaried basis, all were subject to Defendant s practice to refuse any additional pay for hours over forty, all have the same legal claims and none are subject to any individual defenses. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl "In assessing the typicality of the plaintiff's claims, the court must pay special attention to unique defenses that are not shared by the class representatives and members of the class." Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 316 (S.D.N.Y. 2003). Although "the mere existence of individualized factual questions with respect to the class representative's claims will not bar class certification, class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2 nd Cir. 2000) (citation omitted); see also, Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2 nd Cir. 1990). Typicality is absent where the named plaintiffs are "'subject to unique 9

18 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 18 of 33 defenses which threaten to become the focus of the litigation.' " Duling, 267 F.R.D. at 97. Defendant pleads no such individual defenses here. See Answer, Doc. 5. Defendant s overtime violations were identical for the named Plaintiffs and the entire class. Defendant had a policy of paying all GTEC Representatives a salary and not paying additional premium pay for overtime hours as well as requiring class members to work off the clock from home, before and after their regular shifts, and during meal periods. See Enea Decl ; Mclean Decl ; Dingle-El Decl ; Altidor Decl Defendant had a policy to not pay Plaintiffs overtime for hours worked over 40 in a workweek as required by federal and state law. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl Thus, Plaintiffs claims, which resulted from Defendant s uniform pay policies and practices, are well within Fed. R. Civ. P. 23's notion of commonality and typicality. Robidoux, 987 F.2d at There is no defense applicable only to the claims of the named Plaintiffs or the class. Commonality and typicality exist here. The U.S. Supreme Court recently issued a significant commonality decision in the discrimination context in Wal-Mart Stores, Inc. v. Dukes, a Title VII discrimination case. 131 S.Ct (2011). The Supreme Court held that the named plaintiffs and passive Rule 23 class did not meet the commonality requirements under Rule 23(a)(2) because there was not a common policy or practice to glue the discrimination claims together. Wal-Mart Stores, Inc., 131 S.Ct. at In Wal-Mart there were over 3,400 stores, and they employed over one million workers throughout the country. Wal-Mart Stores, Inc., 131 S.Ct. at Significantly, Wal-Mart had an anti-discrimination policy and Plaintiffs had not identified a common practice or policy leading to the claimed discrimination. The Court explained that: Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reason for all those decision together, it will be 10

19 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 19 of 33 impossible to say that examination of all the class members claims for relief will produce a common answer to the crucial question why was I disfavored. Wal-Mart Stores, Inc., 131 S.Ct. at Since Dukes, courts in this District have repeatedly reiterated that Rule 23 class and FLSA collective actions are appropriate when uniform pay practices cause a common wrong. See Espinoza v. 953 Associates LLC, 280 F.R.D. 113, (S.D.N.Y. 2011) ( With regard to commonality, the Named Plaintiffs' claims and those of the members of the putative class arise from a common wrong: Defendants' failure to pay proper minimum wage and overtime The typicality requirement is also satisfied [T]he minimum wage and overtime claims alleged by Plaintiffs are similar to those of the class members and arise from the same allegedly unlawful practices and policies. ); see also Pippins v. KPMG LLP, No. 11 Civ. 0377(CM)(JLC), 2012 WL (S.D.N.Y. Jan. 3, 2012) (holding that the FLSA claims before the court did not require the analysis of millions of individual employment decisions but rather that the crux of this [FLSA] case is whether the company-wide policies, as implemented, violated Plaintiffs' statutory rights. ) Plaintiffs claims might present individualized questions regarding the number of hours worked and how much each employee is entitled to be paid but these differences go simply to the question of damages not the commonality and typicality of their claims. Here, the common injury Plaintiffs allege is that Defendant used common pay practices for all employees, specifically requiring Plaintiffs and other class members to work approximately ten hours in excess of their 40 hour workweek and failing to pay the overtime premium for any hours worked over 40. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl Plaintiffs have alleged a common injury that is capable of class-wide resolution without inquiry into multiple employment decisions applicable to individual class members. 11

20 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 20 of 33 Accordingly, Wal Mart is distinguishable and does not preclude class certification. Espinoza, 280 F.R.D. at 130. "The weight of authority rejects the argument that Dukes bars certification in wage and hour cases." Morris v. Affinity Health Plan, Inc., No. 09 CIV ALC, 2012 U.S. Dist. LEXIS 64650, 2012 WL , at *2 (S.D.N.Y. May 8, 2012) (collecting cases). Courts in this district have instead focused on whether the employer had company-wide wage policies that injured the proposed class. Flores, 2012 U.S. Dist. LEXIS at *31. 1 Here, there can be no doubt that the employer had company-wide wage policies to refuse additional compensation to GTEC reps for their overtime work. This element is easily met. Id. C. Representativeness Rule 23(a)(4) provides that, in order to certify a class, its proponents must show that the representative parties will fairly and adequately protect the interests of the class Fed. R. Civ. P. 23(a)(4). The Second Circuit Court of Appeals has held that the threshold for meeting "adequacy of representation" is "[first,] class counsel must be 'qualified, experienced and generally able' to conduct the litigation. Second, the class members must not have interests that are 'antagonistic' to one another." In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, Other district courts continue to find commonality in wage hour cases despite the Dukes decision. Bond v. Ferguson Enterprises, Inc., No. 1:09 cv 1662 OWW MJS, 2011 WL , *5 (E.D.Cal. June 30, 2011) (certifying settlement class); Collins v. Cargill Meat Solutions Corp., No. 1:10 cv 00500, 2011 WL OWW MJS, *5 (E.D.Cal. June 28, 2011) (noting that [e]very Class Member was paid under the same pay practices as every other class members. The commonality requirement is satisfied. ). Since Plaintiffs allege and demonstrate that Defendant used common pay practices for all employees, Plaintiffs have demonstrated both commonality and typicality. See also Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346, (E.D.N.Y. 2011) (plaintiffs satisfied the commonality and typicality requirements requirement by showing the employer s common pay practices: plaintiffs have come forward with significant proof that defendant routinely failed to account for labor performed on public works projects and pay prevailing wages for covered work. ) In Hernandez v. Starbucks Coffee Company, a district court in the Southern District of Florida refused to decertify a FLSA opt-in class because the common evidence and testimony of Defendant s own corporate representatives suggest(s) the same class treatment. No CIV, *5-6, 2011 WL , *3 (S.D. Fla. June 29, 2011). 12

21 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 21 of 33 (2nd Cir. 1992) (internal citations omitted); Jankowski v. Castaldi, No. 01CV0164(SJF)(KAM), 2006 WL at *3-4 (E.D.N.Y. Jan. 13, 2007). 1. Class Counsel is Adequate Based on the declaration of class counsel, adequacy of counsel is also assured. Plaintiffs counsel Dan Getman has significant experience handling class actions, having successfully litigated numerous class actions during his 28 years of legal practice. Getman Decl. 2, 18. Further, Plaintiffs counsel is experienced in handling employee wage and hour cases, having handled FLSA litigation since Id. at 19. Currently, he is handling numerous wage and hour cases and has handled many such cases in the past. See Id Plaintiffs counsel has also handled class actions of state wage claims brought with FLSA collective actions before Judge John Gleeson, in the Eastern District and Judges Robinson, Brieant, Marrero and Koeltl in the Southern District of New York. See id. at 18. Plaintiffs counsel has successfully handled numerous other class actions as fully detailed in his declaration. Getman & Sweeney is a fiveattorney firm with six paralegals, all of whom are engaged exclusively in handling wage and hour cases on behalf of individuals and classes around the country. The firm keeps a low caseload so that each case is adequately staffed according to its needs. The bios of all staff are stated on the firm s website, which is attached hereto. Getman Ex. 2. The firm litigates wage and hour class actions around the country including one other S.D.N.Y. case, Murphy v. Northern Dutchess Paramaedics, and another wage and hour case in the Eastern District of New York, a multistate class and collective action against Roto-Rooter on behalf of its plumbers, Morangelli v. Chemed Corp., 275 F.R.D. 99 (E.D.N.Y. 2011), in which the Court noted: Defendants do not challenge the adequacy of the class counsel. They would be hardpressed to; as another court recently noted, counsel's qualifications are stellar and this element is easily met. Bredbenner v. Liberty Travel, Inc., No , 2011 U.S. Dist. LEXIS 38663, at *22 (D.N.J. Apr. 8, 2011). 13

22 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 22 of 33 Id. at 119. Representativeness is established. 2. The Representatives Are Adequate The class members do not have interests that are antagonistic to one another. The Plaintiffs raise state claims that are applicable to all members of the class. The interests of the named Plaintiffs -- to collect unpaid wages -- does not differ from those of the class. It is sufficient, as is the case here, that the representative plaintiffs have adequate personal knowledge of the essential facts of the case. See Iglesias-Mendoza, 239 F.R.D. at 372. Such knowledge is demonstrated by each named Plaintiff declaration attached herein. D. Present Counsel Should Be Appointed Class Counsel If certification is granted, Rule 23(g) provides that the court must appoint class counsel. To that end, the court must consider the following: "[(1)] the work counsel has done in identifying or investigating potential claims in the action, [(2)] counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, [(3)] counsel's knowledge of the applicable law, and [(4)] the resources counsel will commit to representing the class." The court may consider any "other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Noble, 224 F.R.D. at Present counsel has handled this matter from the outset, performing all the investigation and identification of claims. Counsel handles wage and hour cases and has in excess of 28 years of law practice. See Getman Decl., 2, As noted above and detailed in class counsel s declaration, counsel has handled numerous class and collective actions. Class counsel will commit the necessary resources to representing the class, as he has in previous class representations. See id,

23 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 23 of 33 E. The Requirements of Rule 23(b)(3) Are Met. Under Rule 23(b)(3), a class may be certified only where "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). In this case, common questions of law and fact predominate and a class action is a superior method of adjudication. 1. Common Questions of Law and Fact Predominate The predominance requirement evaluates whether a proposed class is cohesive enough to merit adjudication by representation. See Moore v. PaineWebber, Inc. 306 F.3d 1247, 1252 (2d Cir. 2002). Predominance will be established if "resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." Id. Consequently, to determine whether common questions of law or fact predominate, a court must focus "on the legal or factual questions that qualify each class member's case as a genuine controversy... [and] test[ ] whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997); see also, In re Visa Check/MasterMoney, 280 F.3d 124, 135 (2 nd Cir. 2001); In re WorldCom, Inc. Securities Litigation, 219 F.R.D. 267, (S.D.N.Y. 2003). The predominant legal and factual issues in this case are issues that apply across the class. The predominant legal issues for the class involve whether Defendant s pay practices violated New York State Labor Law. The main legal issue is whether Defendant violated the law by not paying class members any overtime pay (at time and one half their regular rate) when they worked over 40 hours in a week. Of course there are subsidiary related legal issues that are also common to the 15

24 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 24 of 33 entire class as well. These include whether the Defendant employed plaintiffs, whether Plaintiffs worked over 40 hours in a week, whether the Defendant acted willfully, negligently, or in good faith in failing to pay overtime, and whether any of Defendant s affirmative defenses are applicable. All of these issues are subject to generalized proof. Once those class-wide issues are resolved, the remaining factual questions are minor, e.g., how many overtime hours did a particular class member work. As the court found in Iglesias-Mendoza, [t]he issues to be litigated are whether the class members (1) were supposed to be paid the minimum wage as a matter of law and were not, and (2) were supposed to be paid overtime for working more than 40 hours a week and were not. These are perfect questions for class treatment. Some factual variation among the circumstances of the various class members is inevitable and does not defeat the predominance requirement. 239 F.R.D. at 373 (emphasis added). Even if some testimony were required to prove the extent of damages, where common questions of law and fact predominate with respect to liability, as they do here, the existence of individual questions as to damages is generally unimportant. See, In re Visa Check Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (if common issues predominate as to liability, court should ordinarily find predominance even if some individualized damage issues exist); Shabazz v. Morgan Funding Corp., 269 F.R.D. 245, (S.D.N.Y. 2010) ( Any class action based on unpaid wages will necessarily involve calculations for determining individual class member damages, and the need for such calculations do not preclude class certification. ); Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67, 80 (E.D.N.Y. 2004). 2. A Class Action Is a Superior Method of Adjudication The superiority question under Rule 23(b)(3) requires a court to consider whether a class action is superior to other methods of adjudication. The court should consider, inter alia, "the 16

25 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 25 of 33 interest of the members of the class in individually controlling the prosecution or defense of separate actions" and "the difficulties likely to be encountered in the management of a class action." Noble, 224 F.R.D. at 339. The overwhelming precedent in the Second Circuit has made it clear that adjudicating FLSA collective actions and Rule 23 state law claims together is superior to other available methods. See Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 164 (S.D.N.Y. 2008) (holding that defendant s argument that class certification should be denied because it is preferable that potential class members proceed through an FLSA collective action is unpersuasive, particularly in light of the overwhelming precedent in the Second Circuit supporting certification of simultaneous NYLL class actions and FLSA collective actions. Hence, the superiority requirement of Rule 23 is satisfied. ); see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 205 (S.D.N.Y. 2006). Indeed, the state Rule 23 claim for parallel state overtime claims complements the FLSA s goal to protect all covered workers. Barrentine v. Arkansas Best Freight System, Inc., 450 U.S. 728, 739 (1981)( The principal congressional purpose in enacting the FLSA was to protect all covered workers from substandard wages and oppressive working hours.) In light of the overwhelming precedent in the Second Circuit supporting certification of simultaneous New York Labor Law class actions and FLSA collective actions, Plaintiffs claims for overtime compensation should be handled on a class wide basis. The management of a class action in this matter is not complex and all the legal and factual issues can be resolved in a single proceeding. Resolving the predominant issues in a single action is more efficient than relitigating them in many different individual actions. Adjudication of the common issues of law and fact is in the interest of all class members and they are well represented by lead Plaintiffs and counsel. It avoids competing decisions on the predominant issues and offers finality. There is no device other than a class action that can resolve these matters as efficiently as a class action. 17

26 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 26 of 33 II. THE FLSA CLASS IS SIMILARLY SITUATED A. The FLSA Is a Remedial Statute To protect against excessive hours of work, the statute requires that employers pay employees for hours in excess of 40 in a week "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. 207(a)(1). The FLSA was designed to extend the frontiers of social progress by insuring to all our able-bodied working men and women a fair day s pay for a fair day s work.... Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. A.H. Phillips v. Walling, 324 U.S. 490, 493 (1945). The FLSA s overtime rules, "like the other portions of the Fair Labor Standards Act, are remedial and humanitarian in purpose. Such a statute must not be interpreted or applied in a narrow, grudging manner." Giles v. City of New York, 41 F.Supp.2d 308, 316 (S.D.N.Y. 1999)(quoting Tenn. Coal, Iron & R.R. Co., et al. v. Muscoda Local No. 123, et al., 321 U.S. 590 (1944)). Ensuring that the FLSA protects all workers from substandard wages also prevents substandard wages from being used as an unfair method of competition against law-abiding competitors. 29 U.S.C. 202(a)(3); see Battaglia v. General Motors Corp., 169 F.2d 254, 259 (2d Cir.1948) ( Rights granted to employees under the Fair Labor Standards Act... are charged or colored with the public interest. ). The FLSA s collective action provisions are an important aspect of achieving the statute s remedial purpose. Section 216(b) of FLSA authorizes any one or more employees to sue an employer for unpaid overtime compensation and liquidated damages on behalf of himself and other employees similarly situated. The collective action procedure allows... plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. Hoffman - LaRoche v. Sperling, 493 U.S. 165, (1989). Sending notice to notify all similarly situated 18

27 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 27 of 33 employees of the action comports with the broad remedial purpose of the Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits. Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (1979). B. The Class is Similarly Situated The requirements of Fed. R. Civ. P. Rule 23 do not apply to FLSA collective actions. 29 U.S.C. 216(b). Under 216(b) collective actions, numerosity, typicality, commonality and representativeness are not in issue. Rather, there is only a threshold issue of whether the group is similarly situated. 29 U.S.C. 216(b); Hoffman v. Sbarro, Inc., 982 F. Supp. 249 (S.D.N.Y. 1997) (Sotomayor, J.). It is unnecessary to show that putative class members share identical positions. Schwed v. General Electric Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995). The question is whether there is a factual nexus between [a named plaintiff s] situation and the situation of other current and former [employees]. Sbarro, 982 F. Supp. at 262; see also Sobczak v. AWL Industries, Inc. 540 F.Supp.2d 354, 362 (E.D.N.Y. 2007); Wraga v. Marble Lite, Inc., No. 05- CV-5038 JGRER, 2006 WL , *1 (E.D.N.Y. Aug. 22, 2006). In Sbarro, the Court noted that it need not evaluate the merits nor wait for the completion of discovery. To the contrary, the courts have endorsed the sending of notice early in the proceeding, as a means of facilitating the FLSA s broad remedial purpose and promoting efficient case management. Id., 982 F. Supp. at 262.; see also Patton v. The Thomson Corp., 364 F.Supp.2d 263, 268 (E.D.N.Y.2005) (early notice necessary to preserve and effectuate the rights of potential plaintiffs whose claims might otherwise become time-barred during the discovery phase. ). When collective action certification is sought early in a case, the court applies a fairly lenient standard and (when it does so) typically grants conditional certification. Torres v. Gristede's Operating Corp., No. 04 CIV (PAC), 2006 WL , at *7 (S.D.N.Y. Sept. 29, 2006) (citations omitted). Hence, the merits of plaintiffs' 19

28 Case 1:12-cv GBD Document 9 Filed 07/30/12 Page 28 of 33 claims need not be evaluated nor discovery be completed in order for such a notice to be approved and disseminated. Masson v. Ecolab, Inc,. No. 04 CIV (MBM), 2005 WL *13(S.D.N.Y. Aug. 17, 2005) citing Sbarro, 982 F.Supp. at 262. Notice should be sent early because, unlike a Rule 23 class action, the statute of limitations continues to run on class members until they opt in. 29 U.S.C As notice is delayed, claims die daily. Sbarro, 982 F.Supp. at 260. While early notice serves the FLSA s remedial purposes, it does not prejudice the employer. Krueger v. New York Tel. Co., No. 93 CIV (LMM), 1993 WL , at *2 (S.D.N.Y. July 21, 1993) ("[E]ven if plaintiffs' claims turn out to be meritless or, in fact, all the plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues in this case. ); accord Masson 2005 WL , at *15. Courts regularly exercise their discretion to order notice be sent to a class of similarly situated employees early in a litigation. See, e.g., Sobczak, 540 F.Supp.2d at ; Gortat, 2010 WL , at *9; Patton, 364 F.Supp.2d at 267; Amendola v. Bristol-Myers Squibb Co, 558 F.Supp.2d at 459, (S.D.N.Y. 2008); Pefanis v. Westway Diner, Inc., No. 08 CIV. 002 (DLC), 2008 WL , at *1 (S.D.N.Y. Oct. 8, 2008); Iglesias-Mendoza, 239 F.R.D.363; Sipas v. Sammy s Fishbox, Inc., No. 05 CIV (PAC), 2006 WL (S.D.N.Y. April 24, 2006); Torres, 2006 WL , at *7; Masson, 2005 WL , at *13; Lynch v. United Services Auto. Ass'n, 491 F.Supp.2d 357, 371 (S.D.N.Y. 2007). Accordingly, notice should not be delayed for discovery or the evaluation of the merits of claims. Masson, 2005 WL , at *13, citing Sbarro, 982 F.Supp. at 262. In this case, Plaintiffs were not compensated at time and one-half for their overtime hours as mandated by the Fair Labor Standards Act. See Enea Decl ; McLean Decl ; Dingle-El Decl ; Altidor Decl Plaintiffs and the members of the class are 20