Approval of Settlement, Provisional Certification of the Settlement Class, Appointment of

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1 NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK ANA PINO, individually and on behalf of others similarly situated, -against- Plaintiff, Index No /2015 GUASTAVINO S, INC.; ROSE GROUP PARK AVENUE LLC; DESMOND GUNEWARDENA; and any other related entities, Defendants. ORDER GRANTING PLAINTIFFS UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF THE PROPOSED SETTLEMENT, CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF CLASS COUNSEL, AND APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT The above-entitled matter came before the Court on Plaintiffs Motion for Preliminary Approval of Settlement, Provisional Certification of the Settlement Class, Appointment of Plaintiffs Counsel as Class Counsel, and Approval of Plaintiffs Proposed Notice of Settlement and Class Action Settlement Procedure ( Motion for Preliminary Approval ). IT IS ORDERED that Plaintiffs Motion for Preliminary Approval is granted. IT IS ORDERED, as set forth below, that the Court: (1) grants preliminary approval of the settlement, (2) provisionally certifies the class for purposes of settlement, (3) appoints Plaintiffs counsel as class counsel, (4) approves distribution of the proposed notice, and (5) implements the schedule proposed by the parties for effectuating the other terms of the proposed settlement. I. Preliminary Approval of Settlement 1. Based upon the Court s review of Plaintiffs Memorandum of Law in Support of Plaintiffs Motion for Preliminary Approval of Settlement, the Affirmation of Brett Cohen ( Cohen Affirmation ), and all other papers submitted in connection with Plaintiffs Motion for 1 1 of 6

2 Preliminary Approval, the Court grants preliminary approval of the settlement memorialized in the Settlement Agreement and Release ( Settlement Agreement or the Settlement ), attached to the Affirmation of Michael A. Tompkins in support of Plaintiffs Motion. 2. The Court concludes that notice to the Class is appropriate. II. Conditional Certification of the Settlement Class 3. The Court certifies the following class under New York Civil Practice Law and Rules 901 and 902 for settlement purposes ( Settlement Class ): All individuals performing service at catered events for Defendants Guastavino s, Inc., Rose Group Park Avenue LLC, and/or any other entities affiliated with or controlled by Guastavino s, Inc. or Rose Group Park Avenue LLC from July 1, 2009 until May 26, 2016, in such trades, classifications and professions that customarily receive gratuities including, but not limited to, servers, bartenders, and captains ( Service Employees ). The Settlement Class does not include maintenance workers, corporate officers, salespersons, cooks, food preparers, chefs, dishwashers, directors, clerical staff, office workers or any other person whose trade, classification or profession does not customarily receive gratuities. 4. CPLR 901(a) provides that one or more members of a class may sue as representative parties on behalf of a class if: 1. the class is so numerous that joinder of all members whether otherwise required or permitted is impracticable [ numerosity ]; 2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members [ predominance ]; 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class [ typicality ]; 4. the representative parties will fairly and adequately protect the interests of the class [ adequacy ]; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy [ superiority ]. 5. The object of settlement is to avoid a determination of contested issues. The parties dispute the merits of the case and whether this case could proceed as a class action, but for purposes 2 2 of 6

3 of settlement only, and without any prejudice to Defendants right to oppose any motion for class certification if the Settlement Agreement is terminated, the Court finds Plaintiffs meet all of the requirements for class certification under CPLR 901 and With respect to CPLR 901(a)(1), Plaintiffs made a sufficient showing that they satisfy CPLR 901 and 902 because there are in excess of 50 Class Members and, thus, joinder is impracticable. Pesantez v. Boyle Environmental Services, Inc., 251 A.D.2d 11 (1st Dept. 1998). 7. Plaintiffs made a sufficient showing that they satisfy CPLR 901(a)(2) because common questions of law or fact predominate over any questions affecting individual members. Under the requirements of CPLR 901(a)(2), the fundamental issue is whether the group asserting class status is seeking to remedy a common legal grievance. 2 Weinstein-Korn-Miller, New York Civil Practice at In this case, Plaintiffs share a common claim based on Defendants alleged failure to pay charged gratuities to Plaintiffs and members of the Class. 9. Plaintiffs made a sufficient showing that they satisfy CPLR 901(a)(3) because the named Plaintiff s claims are typical of the Class. It is well-settled law that the typicality requirement is satisfied when the named plaintiff s claims derive from the same practice or conduct that gave rise to the remaining claims of the class members and [are] based upon the same legal theory. Friar v. Vangaurd Holding Corp., 78 A.D.2d 83, (2d Dept. 1980). 10. Plaintiffs also made a sufficient showing that they satisfy CPLR 901(a)(4). Section 901(a)(4) requires that the named Plaintiff be in a position to adequately protect the interests of the members of the class in the litigation. Here, it appears that the class representatives possess a financial interest in the outcome of the litigation and adequate financial resources to pursue their claim. Further, it appears that there are no conflicts between the class members and 3 3 of 6

4 the class representatives, and counsel for the class representative is competent to adequately represent the interests of the class. Adequacy of representation requires not only that counsel for the named plaintiffs be competent, but that the interests of the names plaintiffs and the members of the class not be adverse. Branch v. Crabtree, NYLJ, Jan. 4, 1991, p.28, col. 6 (Sup. Ct. Westchester Co.), aff d, 603 N.Y.S.2d 557 (2d Dept. 1993). 11. In determining whether the action will be vigorously prosecuted, courts also look to the skill and experience of counsel. The plaintiffs are represented by counsel who are experienced in class actions, labor and employment law, and wage and hour cases in particular, and have demonstrated a level of competence ensuring that they can fairly and adequately represent plaintiffs and class members in cases such as this one. Pesantez, 251 A.D.2d at Finally, Plaintiffs made a sufficient showing that they satisfy the elements of CPLR 901(a)(5) regarding superiority. When common issues predominate, courts generally find the class procedure to be the best, and indeed, normally the only realistic means of disposing of a large number of claims arising out of the same operative facts. See, e.g., In re Agent Orange Product Liability Litigation, 506 F. Supp. 762, (E.D.N.Y. 1980). III. Appointment of Plaintiffs Counsel as Class Counsel 13. The Court appoints Jeffrey K. Brown, Michael Tompkins, and Brett Cohen of Leeds Brown Law, P.C., One Old Country Road, Suite 347, Carle Place, New York and Lloyd Ambinder and LaDonna Lusher of Virginia & Ambinder, LLP, 40 Broad Street, 7th Floor, New York, New York, 10004, as Class Counsel because they meet all of the requirements of CPLR 901(a)(4). 14. Class Counsel did substantial work identifying, investigating, litigating, mediating and ultimately settling Plaintiff s and the class members claims. 4 4 of 6

5 15. Class Counsel has experience prosecuting and settling employment class actions, including wage and hour class actions, and are well-versed in wage and hour law and in class action law. The work that Class Counsel has performed both in litigating and settling this case demonstrates their commitment to the class and to representing the class s interest. IV. Class Notice 16. The Court approves the Proposed Notice of Settlement of Class Action Lawsuit and Fairness Hearing ( Notice ) and Claim Form and Release, and directs its distribution to the Class. 17. The content of the Notice fully complies with due process and New York Civil Practice Law and Rules 901 and The Notice satisfies each of these requirements and adequately puts class members on notice of the proposed settlement. V. Class Action Settlement Procedure 21. The Court hereby sets the following settlement procedure: 5 days after Entry of this Order No later than 20 Days after the entry of the Preliminary Approval Order 45 days after date of first mailing of Class Notice 45 days after date of first mailing of Notice Defendants will produce the Class List. Mailing of Class Notice. Last day for Class Members to opt out of the Settlement or to submit written objections to the Settlement. Last day for Class Members to qualify as an Authorized Claimant by filing claim forms to join settlement. 5 5 of 6

6 at 9:30 am (typically 130 to 150 days after the approval order is signed) Fairness Hearing. It is so ORDERED this day of, Honorable Justice Lucy Billings, J.S.C. 6 6 of 6