FILED: NEW YORK COUNTY CLERK 06/21/ :32 PM INDEX NO /2015 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/21/2016

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1 FILED: NEW YORK COUNTY CLERK 06/21/ :32 PM INDEX NO /2015 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/21/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ANA PINO, individually and on behalf of others similarly situated, Plaintiff, Index No.: /2015 -against- GUASTAVINO S, INC.; ROSE GROUP PARK AVENUE LLC; DESMOND GUNEWARDENA; and any other related entities, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF THE PROPOSED SETTLEMENT LEEDS BROWN LAW, P.C. Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. One Old Country Road, Suite 347 Carle Place, New York & - VIRGINIA & AMBINDER, LLP Lloyd R. Ambinder, Esq. LaDonna Lusher, Esq. 40 Broad St., 7 th Floor New York, New York Attorneys for Plaintiff and Putative Class 1 1 of 31

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 SETTLEMENT & LITIGATION HISTORY... 2 A. Overview and Procedural History... 2 B. Settlement Negotiation Process... 4 C. The Proposed Settlement Agreement... 4 ARGUMENT... 6 I. THE COURT SHOULD UTILIZE THE TWO-STEP PROCESS FOR APPROVING THE SETTLEMENT...6 II. THE PROPOSED SETTLEMENT AGREEMENT PROVIDES PROBABLE CAUSE FOR PRELIMINARY APPROVAL...7 A. The Settlement is Fair and Reasonable... 7 B. Courts Routinely Approve Similar Settlements III. Class Certification Should Be Granted A. Courts Routinely Certify Class Actions in Wage and Hour Cases B. CPLR 901 IS TO BE LIBERALLY CONSTRUED C. THIS ACTION SATISFIES ALL OF THE PREREQUISITES OF D. SECTION 902 FACTORS SUPPORT CLASS CERTIFICATION CONCLUSION i 2 of 31

3 Cases TABLE OF AUTHORITIES Andryeyeva v. N.Y. Health Care, Inc., 994 N.Y.S.2d 278 (Sup. Ct. Kings Cty. 2014)... 18, 20 Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382 (2014) Brandon v. Chefetz, 106 A.D.2d 162 (1st Dep t 1985) Brandy v. Canea Mare Contr., Inc., 34 A.D.3d 512 (2d Dep t 2006) City of N.Y. v. Maul, 14 N.Y.3d 499 (2010) Comcast Corp. v. Behrend, 133 S. Ct (2013) Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d 172 (W.D.N.Y. 2011) Fernandez v. Hospitality, No /2014, 2015 N.Y. Misc. LEXIS 2193 (Sup. Ct. New York Cty. June 20, 2015) Fiala v. Metro. Life Ins. Co., 27 Misc. 3d 599 (Sup. Ct. New York Cty. 2010)... 8 Friar v. Vanguard Holding Corp., 78 A.D.2d 83 (2d Dep t 1980)... passim Galdamez v. Biordi Constr. Corp., 13 Misc. 3d Geiger v. Am. Tobacco Co., 181 Misc. 2d 875 (Sup. Ct. Queens Cty. 1999) Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 93 Misc. 2d 941 (Sup. Ct. New York Cty. 1978)... 21, 23 Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129 (2d Dep t 2008)... 22, 23, 26 Gonzalez v. Pers. Touch Moving, Inc., No. INDEX NO /14, 2014 N.Y. Misc. LEXIS 3568 (Sup. Ct. Apr. 29, 2014) Hamel v. Brook. H.R. Co., 59 A.D. 135 (2d Dep t 1901) Heather Siler v. Landry's Seafood House-N.C., Inc., No. 13-CV-587 (RLE), 2014 U.S. Dist. LEXIS (S.D.N.Y. June 30, 2014) In re Gilat Satellite Networks, Ltd., No. CV (CPS), 2007 U.S. Dist. LEXIS 29062, 2007 WL (E.D.N.Y. Apr. 19, 2007)... 7 In re Penthouse Exec. Club Comp. Litig., No. Master Fie No. 10 Civ (KMWV), 2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014)... 6, 9 In re PenthouseExec. Club Comp. Litig., No. Master File No. 10 Civ (KMW), 2013 U.S. Dist. LEXIS (S.D.N.Y. Apr. 29, 2013)... 7 In re TakeTwo Interactive Secs. Litig., No. 06 Civ (RJS), 2010 U.S. Dist. LEXIS (S.D.N.Y. June 29, 2010)... 7, 8 Kelen v. World Fin. Network Nat l Bank, No. 12-CV-9418 (VSB), 2014 U.S. Dist. LEXIS (S.D.N.Y. July 28, 2014)... 8 Krebs v. The Canyon Club, 880 N.Y.S.2d 873 (Sup. Ct. Westchester Cty. 2009)... 15, 24 Kudinov v. Kel-Tech Constr. Inc., 65 A.D.3d 481 (1st Dep t 2009) Lopez v. Dinex Group, No /2014, 2015 N.Y. Misc. LEXIS 2192 (Sup. Ct. New York Cty. June 23, 2015)... 6 ii 3 of 31

4 Lovaglio v. W & E Hosp., No. 10 Civ. 7351, 2012 WL (S.D.N.Y. July 6, 2012) Martin v. Rest. Assoc. Events Corp., 106 A.D.3d 785 (2d Dep t 2013)... 2 McMahon v. Olivier Cheng Catering & Events, L.L.C., No. 08 Civ (PGG), 2010 U.S. Dist. LEXIS (S.D.N.Y. Mar. 2, 2010) McReynolds v. Richards-Cantave, 588 F.3d 790 (2d Cir. 2009)... 8 Mohney v. Shelly's Prime Steak, Stone Crab & Oyster Bar, No. 06 Civ (PAC), 2009 U.S. Dist. LEXIS (S.D.N.Y. Mar. 31, 2009) Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11 (1st Dep t 1998)... 17, 18, 24 Pruitt v. Rockefeller Center Props., Inc., 167 A.D.2d 14 (1st Dep t 1991) Ramirez v. Lovin' Oven Catering Suffolk, Inc., No. 11 Civ (JGK) (JLC), 2011 U.S. Dist. LEXIS (S.D.N.Y. Oct. 27, 2011) Ramirez v. Mansions Catering, Inc., 74 A.D.3d 490 (1st Dep t 2010)... 2, 24 Samiento v. World Yacht Inc., 10 N.Y.3d 70 (2008)... 2 Sewell v. Bovis Lend Lease, Inc., No. 09-CV-6548, 2012 WL (S.D.N.Y. Apr. 16, 2012) Slobodan Karic v. Major Auto. Cos., No. 09 CV 5708 (ENV), 2015 U.S. Dist. LEXIS (E.D.N.Y. Dec. 22, 2015)... 7 Smith v. Atlas Int l Tours, 80 A.D.2d 762, 436 N.Y.S.2d 722 (1st Dep t 1981) Spicer v. Pier Sixty L.L.C., 269 F.R.D. 321 (S.D.N.Y. 2010)... 19, 20 Stecko v. RLI Ins. Co., 121 A.D.3d 542 (1st Dep t 2014) Super Glue Corp. v. Avis Rent A Car Sys., Inc., 159 A.D.2d 68 (2d Dep t 1990) Super Glue Corp. v. Avis Rent A Car Sys., Inc., 132 A.D.2d 604 (2d Dep t 1987)... 21, 23 Tamburino v. Madison Sq. Garden, LP, 115 A.D.3d 217 (1st Dep t 2014)... 2 Tart v. Lions Gate Entm t Corp., No. 14-CV-8004 (AJN), 2015 U.S. Dist. LEXIS (S.D.N.Y. Oct. 13, 2015)... 7, 9 Toure v. Amerigroup Corp., No. 10 Civ. 5391, 2012 WL (E.D.N.Y. Aug. 6, 2012) Tripi v. Town of Bedford Planning Bd., 2 A.D.3d 534 (2d Dep t 2003) Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) Weinstein v. Jenny Craig Operations, Inc., 41 Misc. 3d 1220 (?YEAR?) Williams v. Air Serv Corp., 121 A.D.3d 441 (1st Dep t 2014) Willix v. Healthfirst, Inc., No. 07 Civ (ENV)(RER), 2011 U.S. Dist. LEXIS (E.D.N.Y. Feb. 18, 2011) Other Authority N.Y. C.P.L.R passim N.Y. C.P.L.R passim N.Y. C.P.L.R passim N.Y. Lab. Law 196-d... passim iii 4 of 31

5 Plaintiffs respectfully submit this memorandum of law in support of their unopposed motion for preliminary approval of the proposed settlement (the Proposed Settlement Agreement ). Plaintiffs seek an order pursuant to Article 9 of the New York Civil Practice Law and Rules ( CPLR ) granting: (1) preliminary approval of the proposed settlement; (2) certification of the proposed Settlement Class ; (3) designation of Leeds Brown Law, P.C. and Virginia & Ambinder, LLP, as Class Counsel ; (4) authorization to publish the proposed-forcourt-approval Notice of Settlement and Claim Form via first class mail; and (5) authorization for the parties to utilize the procedures set for the settlement agreement including the date for a Fairness Hearing to be set 130 to 150 days from the date, and to the extent, such approval is granted. PRELIMINARY STATEMENT This action was brought on behalf of Named Plaintiff Ana Pino ( Named Plaintiff ), and a putative class of individuals (collectively Plaintiffs or Class Members ) who worked for Defendants Guastavino s, Inc. and/or Rose Group Park Avenue LLC, ( Defendants ) in service trades that customarily receive gratuities including servers, bussers, bartenders, hosts, bridal attendants, and maître d s ( service employees ). This memorandum of law is submitted in support of a proposed settlement on behalf of a Class or Settlement Class defined as: 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 ). 1 5 of 31

6 See Settlement Agreement and Release ( Agreement ) annexed to the Affirmation of Brett Cohen ( Cohen Aff. ) 1 as Exhibit A. at Plaintiffs respectfully request that in the event that the Court grants preliminary approval of the proposed settlement that the Court authorize the distribution of the proposed notice (Exhibit B) and proposed claim form (Exhibit C) as agreed to by the parties. For facilitating that, the parties have also agreed to the proposed preliminary approval order. See Exhibit D. For the reasons set forth below, Plaintiffs motion should be granted in its entirety. SETTLEMENT & LITIGATION HISTORY A. Overview and Procedural History Beginning in or around July 2009, Defendants employed Plaintiffs to perform food service work at their catering facilities, including those located in New York known as Guastavino s and 583 Park Avenue. On July 10, 2015 Plaintiff filed a Class Action Complaint, alleging violations of Article 6 of the New York Labor Law ( Labor Law ), specifically 196-d, which prohibits the withholding of gratuities or charges purported to be a gratuity, as understood by a reasonable patron. See Samiento v. World Yacht, 10 N.Y.3d 70 (2008) (holding that a service charge on a catering contract would be weighed against the expectations of a reasonable patron to determine if the charge was purported to be a gratuity for 196-d purposes, thus requiring distribution to the service staff); see also Ramirez v. Mansions Catering, Inc., 74 A.D.3d 490 (1st Dept. 2010); Martin v. Rest. Associates Events Corp., 35 Misc. 3d 215, 937 N.Y.S.2d 556 (Sup. Ct. Westchester Cty. Jan. 7, 2013), aff d 106 A.D.3d 785 (2d Dept. 2013); Tamburino v. Madison Square Garden, LLP, 115 A.D.3d 217 (1st Dept. 2014) ( an employer cannot withhold from its 1 Unless otherwise indicated, all exhibits are attached to the Cohen Aff. 2 6 of 31

7 employees any portion of a mandatory service charge that is added to a customer s bill unless the employer makes it clear to the customer that it is retaining some or all of the charge ). Plaintiffs Complaint alleges that Defendants contracted with customers to carry out and execute catered events. See NYSCEF Doc. No. 1, Index No / Plaintiffs worked for Defendants in one or more of the defined Class positions for events covered by these contracts. See Exhibit E, Affidavit of Ana Pino. Plaintiffs allege that they served as employees at Defendants catered events, and that Defendants failed to remit gratuities to Plaintiffs as required under Labor Law 196-d. See generally Doc. No. 1; Ex. E. Plaintiffs further allege that Defendants customers were required to pay a mandatory service charge, which generally consisted of a charge of approximately 18 to 20% of the total event bill. See Doc. No. 1; see also Ex. E. Plaintiffs allege that they did not receive the service charge, and further alleged it was retained by Defendants. Ex. E 8. Defendants deny Plaintiffs allegations and have stressed their intent to vigorously contest this lawsuit if the settlement is not approved. Among other defenses, Defendants contend that they exercised insufficient control over the servers and other staff working at their venues to render the staff employees covered by the Labor Law. They further contend that their event contracts have included disclaimers since at least 2009, which provided reasonable notice to customers that any service charges were not gratuities. By 2014, the disclaimers were even more clear and preclusive of any liability. Defendants also assert that they informed customers through other means (including discussions and ) that any mandatory service charges were not gratuities. 2 All documents filed via NYSCEF under Index No /2015 will be referred to as Doc. No. [xx]. 3 7 of 31

8 B. Settlement Negotiation Process In late 2015, the parties began to discuss the prospect of settling this litigation. Cohen Aff. 10, 22. During this time, Defendants produced and Plaintiffs Counsel reviewed documents, including a representative sample of event contracts, menus, invoices, and other documents provided by Defendants for the purpose of ascertaining the extent of Defendants liability for unlawfully retained service charges. On January 11, 2016, the parties held a mediation with experienced mediator Martin Scheinman. Id. at 23. During the mediation, the parties shared their respective views on the validity and potential value of the claims and defenses. Ultimately, with the help of Mediator Scheinman, the parties were able to reach a compromise that all parties felt was fair given the relative merits of the parties claims and defenses and the risks that ongoing litigation would pose for each side. Id. at Following the mediation, Plaintiffs Counsel conducted an on-site inspection of Defendants event-related documents, in both hard copy and electronic form, to ensure that the sample records relied upon during the mediation were indeed representative of the way the service charge had been presented to customers during the relevant period. Id. at 33. Upon completion of the inspection, Plaintiffs Counsel was satisfied that the representations Defendants had made at the mediation regarding the service charge and the use of disclaimer language were accurate. Id. C. The Proposed Settlement Agreement The Proposed Settlement Agreement establishes a Gross Settlement Allocation Fund, for allocation and distribution purposes, in the amount of $2,100,000. See Ex. A Upon approval by the Court, this fund will provide members of the Settlement Class a significant portion of their allegedly unlawfully withheld gratuities for the relevant period, one that fairly reflects the relative 4 8 of 31

9 merits of their claims and the defenses they would have to overcome in litigation. See generally id. For purposes of allocating funds between the Class Members, the Agreement divides Class Members claims into two 3 distinct groups, based upon when they worked and their roles at Defendants venues during the period covered by the Agreement ( Disclaimer Periods ): 1. Pre-Disclaimer Period (July 2009 through December 2013): Defendants did not uniformly include disclaimers that the service charge was not a gratuity, and the disclaimers used were not as clear as the disclaimers used beginning in 2014; and 2. Post-Disclaimer Period (January 2014 through May 26, 2016): Defendants altered their contracts, proposals, banquet event orders and invoices to add stronger disclaimers that made it less likely that a reasonable customer would believe the service charge was a gratuity. 4 Under the allocation formula set forth in the Proposed Settlement Agreement, each Class Member s payment would be calculated according to the total amount of wages the Class Member earned during each period. Ex. A 3.5. Payments to Class Members for the Post-Disclaimer Period will be reduced to reflect the fact that such Class Members worked under contracts and other event documents that contained stronger and more consistent disclaimers (in total, 70% of the settlement shall be allocated to the Pre-Disclaimer Period, and 30% to the Post-Disclaimer Period). The Agreement sets aside a reserve fund of $15,000 for late-filed claims, errors, and omissions, which will be available for six months following the date after the disbursement of funds from the Qualified Settlement Fund. Id. at 3.1(B). 3 Additionally, Defendants have identified several individuals who worked primarily in trades, classifications and professions that customarily do not receive gratuities, but had on very limited occasions worked in roles that do customarily receive gratuities, including as servers, bartenders, and captains. These individuals will receive a fixed amount of $ For the Full Disclaimer Period, Plaintiffs claim that there is still an open question as to whether the disclaimer language used by Defendants was sufficiently clear and conspicuous to rebut the presumption that the service charge was a gratuity. 5 9 of 31

10 ARGUMENT I. THE COURT SHOULD UTILIZE THE TWO-STEP PROCESS FOR APPROVING THE SETTLEMENT CPLR 908 states that A class action shall not be dismissed, discontinued, or compromised without the approval of the court. Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs. Courts in New York typically utilize a two-step process when reviewing the fairness and reasonableness of a settlement agreement in the class-action context: (1) preliminarily approving the settlement and distribution of notice; and (2) scheduling a fairness hearing for considering final approval of the settlement based on an application with supporting materials. See Lopez v. Dinex Grp., No /2014, 2015 N.Y. Misc. LEXIS 2192, at *5-6 (Sup. Ct. N.Y. Cty. June 23, 2015) (noting that courts generally use the two-step process); see also In re Penthouse Exec. Club Comp. Litig., 2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014) (Judge Kimba M. Wood granting final approval of the settlement after the distribution notice to class members and the holding of a fairness hearing); Chhab v. Montclair Hotels GCNY, LLC, Index No. 2358/2012 (Sup. Ct. Nassau Cty., July 11, 2015) (Judge Denise Sher granting final approval after the distribution of notice to all class members who worked as service employees at defendants facility and the holding of a fairness hearing); Parada v. Westbury Manor Enter., Inc., Index No /2011 (Sup. Ct. Nassau Cty. Feb. 20, 2014) (Judge Vito DeStefano granting preliminary approval and authorizing distribution of notice, then conducting a fairness hearing as to the nature of the terms and conditions of the agreement); Chavarria v. Crest Hollow Country Club, Index No /2011 (Sup. Ct. Nassau Cty. Dec. 17, 2013) (Judge DeStefano granting final approval after the two-stage approach); Toledo v. DCJ Catering Corp., Index No /2011 (Sup. Ct. Nassau Cty. Dec. 21, 2012) (Judge Timothy Driscoll, same) of 31

11 II. THE PROPOSED SETTLEMENT AGREEMENT PROVIDES PROBABLE CAUSE FOR PRELIMINARY APPROVAL A. The Settlement is Fair and Reasonable In reviewing a proposed settlement for preliminary approval, rather than final approval, the Court need only determine whether the proposed settlement is possibly fair, adequate, and reasonable. In re Take Two Interactive Secs. Litig., 2010 U.S. Dist. LEXIS , at *31 (S.D.N.Y. June 29, 2010). Courts grant preliminary approval so long as they find probable cause to submit the [settlement] proposal to class members and hold a full-scale hearing as to its fairness. In re Penthouse, 2013 U.S. Dist. LEXIS at *7 (quoting In re Traffic Exec. Ass n, 627 F.2d 631, 634 (2d Cir. 1980) (internal citation omitted)). Preliminary approval of a proposed settlement is considered appropriate where, as here, the agreement is the result of serious, informed, and non-collusive negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies and where the settlement appears to fall within the range of possible approval. In re Gilat Satellite Networks, Ltd., No. 02 Civ (CPS), 2007 U.S. Dist. LEXIS 29062, 2007 WL , *9 (E.D.N.Y. April 19, 2007); see also Tart v. Lions Gate Entm t Corp., No. 14-CV-8004 (AJN), 2015 U.S. Dist. LEXIS , at *13 (S.D.N.Y. Oct. 13, 2015) (preliminary approval should be granted as long as the proposed settlement appears to fall within the range of possible approval. ) (quoting Clark v. Ecolab, Inc., 2009 U.S. Dist. LEXIS , at *15 (S.D.N.Y. Nov. 17, 2009)) (internal quotations omitted); Karic v. Major Auto. Cos., No. 09 CV 5708 (ENV), 2015 U.S. Dist. LEXIS , at *22 (E.D.N.Y. Dec. 22, 2015) (probable cause exists if the proposed settlement appears to be fair, adequate, and reasonable, and not the product of collusion. ) (quoting Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000)) of 31

12 To determine whether a settlement is possibly fair, adequate, and reasonable, courts consider both the negotiating process that led to the settlement and the terms of the agreement itself. Take Two Interactive Secs. Litig., 2010 U.S. Dist. LEXIS , at * The Settlement Should Be Granted the Presumption of Procedural Fairness On a motion for preliminary approval, procedural fairness is presumed so long as the proposed agreement is the result of (1) arm s-length negotiations, (2) among experienced counsel, (3) after due diligence or discovery. See McReynolds v. Richards-Cantave, 588 F.3d 790, 803 (2d Cir. 2009); see also Fiala v. Metro. Life Ins. Co., 27 Misc. 3d 599, 607 (Sup. Ct. N.Y. Cty. 2010) ( A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm s-length negotiations between experienced, capable counsel after meaningful discovery ) (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (internal quotations omitted)). The presumption of procedural fairness is even stronger where, as here, a fourth element is satisfied: (4) the parties engaged a neutral mediator to help facilitate the settlement and the agreement is endorsed by the mediator. Kelen v. World Fin. Network Nat l Bank, 12-CV-5024 (VSB), 2014 U.S. Dist. LEXIS , *22 (S.D.N.Y. July 28, 2014). Here, all four elements are satisfied, as discussed below. i. The Agreement Resulted from Arms-Length Negotiations with the Help of an Experienced Mediator As outlined in more detail in the Cohen Affirmation, this case involves a bona fide dispute that was litigated in an adversarial manner prior to reaching settlement. The Proposed Settlement Agreement was the product of negotiations following motion practice, including a formal mediation session facilitated by Mediator Martin Scheinman, between Plaintiffs Counsel and Defendants counsel. See Exhibit F, Curriculum Vitae of Martin F. Scheinman, Esq.; see also Penthouse, 2014 U.S. Dist. LEXIS 5864 at *14-15 (citing the involvement of experienced 8 12 of 31

13 mediators including Mediator Scheinman as an indication of the procedural fairness of the proposed settlement). ii. Plaintiffs Are Represented by Competent, Experienced Counsel The Named Plaintiff is represented by Leeds Brown Law, P.C. ( Leeds Brown ) and Virginia & Ambinder, LLP ( Virginia & Ambinder ) whose attorneys are experienced in labor and employment law. To wit, in a recent decision granting preliminary approval of a class and collective action settlement, the Honorable Alison J. Nathan noted: Virginia & Ambinder, LLP, and Leeds Brown Law, P.C. are experienced and wellqualified employment and class action lawyers with expertise in prosecuting and settling labor law cases. The substantial work that Plaintiffs counsel has performed in investigating, litigating and reaching a settlement in this case demonstrates their commitment to the class and representing the class interests, as well as their general ability to conduct this litigation As noted above, [co-counsel] and Leeds Brown Law, P.C. have extensive experience in labor law class actions and have devoted considerable time and effort to litigating and settling this action on behalf of the class. Tart, 2015 U.S. Dist. LEXIS at *7. Virginia & Ambinder and Leeds Brown have represented numerous clients in wage and hour settlements under state and federal law. See, e.g., Marcus v. AXA Advisors, LLC, Case No. 11-CV-2339 (SMG) (E.D.N.Y. May 6, 2016); Arias v. Clear Channel Broadcasting, Inc., Case No. 14-CV-5088(SN) (S.D.N.Y. Feb. 2, 2016); Grant v. Warner Music Group Corp., Case No. 13-CV- 4449(PGG) (S.D.N.Y. March 11, 2016); Maor v. IHG Management Maryland LLC, Index No /2014 (Sup. Ct. Westchester Cty., Feb. 8, 2016) (J. Lefkowitz); O Jeda v. Viacom, Case No. 13-CV-5658(GWG) (S.D.N.Y. Jan. 13, 2016); Vitetta v. Sirius XM Radio Inc., Case No (VEC) (S.D.N.Y. Dec. 18, 2015); Chavarria v. Crest Hollow Country Club, Index No /2011 (Sup. Ct. Nassau Cty.) (J. DeStefano); Kehn v. Plainview Hospitality, LLC, Index No. 9866/2012 (Sup. Ct. Nassau Cty., April 8, 2014); Carlin v. Singh Hospitality Group, Inc., Index 9 13 of 31

14 No /2012 (Sup. Ct. Nassau Cty., Dec. 20, 2013); Lopez v. Bethpage Associates LLC, Index No. 2012/3465 (Sup. Ct. Nassau Cty., Aug. 14, 2013); Macaluso v. Woodbury Int l, Inc., Index No. 11/ (Sup. Ct. Nassau Cty. Sept 9, 2013); Toledo v. DCJ Catering Corp., Index No /2011 (Sup. Ct. Nassau Cty.) (J. Driscoll); Khaimov v. Jem Caterers of Roslyn, LLC, Index No /2012 (Sup. Ct. Nassau Cty. Oct. 16, 2013) (J. Diamond). iii. Plaintiffs Counsel Engaged in Due Diligence to Ensure that the Settlement is Fair and Reasonable Defense counsel represented to Plaintiffs Counsel that since the beginning of the class period, Defendants included disclaimers in event contracts informing customers that the mandatory service charge was not a gratuity, and that in 2014, Defendants further strengthened this language and added disclaimers to proposals, banquet event orders, and invoices for events. Defendants maintained that these disclaimers would prevent a reasonable customer from believing that any mandatory service charges were gratuities. Prior to the mediation on January 11, 2016, Plaintiffs Counsel reviewed a representative sample of Defendants event contracts, proposals, banquet events orders, invoices, and other documents that mentioned the service charge, along with representations by Defendants as to how much Defendants had received in service charges. This enabled Plaintiffs Counsel to come to the mediation with an estimate of how long each of the Disclaimer Periods lasted, how much Defendants received in service charges during each Period, and the relative strength and consistency of the disclaimers used in Defendants event documents. After reaching a settlement in principle at the January 11, 2016 mediation, but prior to executing the Agreement, Plaintiffs Counsel conducted an on-site inspection of event contracts, banquet event orders, invoices, and other documents relevant to the issue of whether a reasonable customer would believe the service charge was a gratuity. Cohen Aff. 12. This enabled Plaintiffs of 31

15 Counsel to verify Defendants assertions regarding the service charge disclaimers in their materials and to ensure that the sample documents Defendants had previously provided were representative of the forms Defendants used during each period. While Notice is pending, Plaintiffs Counsel will retain a certified accountant to perform due diligence regarding financial representations made by Defendants during the course of the settlement discussions. See Ex. A 3.6. Plaintiffs Counsel and the CPA will review documents and materials from Defendants to verify Defendants representations regarding class size, damage components, and Defendants ability to withstand a greater judgment. See id. 2. The Settlement is Substantively Fair and Reasonable i. The Settlement is Fair for All Class Members As noted, at the preliminary approval stage, a proposed settlement agreement is presumed to be substantively fair so long as it contains no obvious defects. It is not necessary for the Court at this stage to conduct a thorough evaluation of the Proposed Settlement Agreement. However, it is worth noting that a more thorough review of the Proposed Settlement Agreement would demonstrate that the agreement is substantively fair to all class members. The Agreement establishes a Gross Settlement Allocation Fund, for allocation and distribution purposes, in the amount of $2,100,000. See Ex. A Upon final approval by the Court, this fund will provide members of the Settlement Class with a fair percentage of their allegedly unpaid wages and gratuities for the relevant period, given the serious questions about liability and damages in this case, as discussed below. See generally id. ii. The Settlement Contains No Obvious Defects In this case, even a cursory review of the Proposed Settlement Agreement would reveal that the Agreement contains no obvious deficiencies. See Ex. A. Under the terms of the Agreement, the Named Plaintiff is compensated using the same formula as the putative class members. The of 31

16 proposed service award of $7,500 for the Named Plaintiff is modest compared to service awards that have been approved in similar cases, and is reasonable to compensate her for her efforts to secure relief for the class. See, e.g., In re Penthouse Executive Club Litig., 10-CV-1145(KMW) (approving service awards of $15,000 for each named plaintiff and $8,750 for each opt-in Plaintiff); Chavarria, Index No /2011 (Sup. Ct. Nassau Cty., Dec. 13, 2013) (J. DeStefano) (approving service awards of a combined $25,000 and $8, for each named plaintiff); Toure v. Amerigroup Corp., No. 10 Civ. 5391, 2012 WL , at *6 (E.D.N.Y. Aug. 6, 2012) (approving awards of $10,000 for each class representative); Lovaglio v. W & E Hospitality, Inc., No. 10 Civ. 7351, 2012 WL , at *4 (S.D.N.Y. July 6, 2012) (approving service awards of $10,000 for each named plaintiff); Sewell v. Bovis Lend Lease, Inc., No. 09-CV-6548, 2012 WL , at *14-15 (S.D.N.Y. Apr. 16, 2012) (approving service payments of $10,000 and $15,000). Similarly, the proposed fee award for Plaintiffs Counsel is well within the range of reasonableness. See, e.g., demunecas v. Bold Food, LLC, No. 09 CIV DAB, 2010 WL , at *9-10 (S.D.N.Y. Aug. 23, 2010) ( Class Counsel s request for 33% of the Fund [exclusive of costs] is reasonable under the circumstances of this case and is consistent with the norms of class litigation in this circuit. ); Davis v. J.P. Morgan Chase & Co., Inc., 827 F. Supp. 2d 172, (W.D.N.Y. 2011) (awarding one-third of a $42 million settlement in a FLSA and NYLL case); Willix v. Healthfirst Inc., 2011 U.S. Dist. LEXIS at *17 (awarding class counsel one-third of $7,675,000 settlement fund in FLSA and NYLL wage and hour action); Toure v. Amerigroup Corp., Case No. 10-cv-5391, 2012 U.S. Dist. LEXIS (E.D.N.Y. 2012) (awarding one-third of $4,450,000 in a wage and hour case); Mohney v. Shelly s Prime Steak, Case No. 06-cv-4270, 2009 U.S. Dist. LEXIS (S.D.N.Y. Mar. 31, 2009) (awarding of 31

17 33% of $3,265,000 fund in FLSA and NYLL tip misappropriation case). Plaintiffs Counsels fee under the Agreement is particularly reasonable in light of the fact that the fee award is inclusive of all costs borne by Plaintiffs Counsel in pursuing and settling the litigation, including Plaintiffs share of the mediator s fees and the entire cost of the Settlement Claims Administrator s fees for sending notice and payment to the Class. iii. The Settlement is Reasonable In Light of the Risks of Continued Litigation In deciding to recommend the Proposed Settlement Agreement to Named Plaintiff and putative class members, Plaintiffs Counsel considered the risks of continued litigation, including the risks of establishing liability, the difficulty of establishing exact damages, the risk of being unable to obtain class certification, the difficulty of locating putative class members, and the risk of being unable to collect on an eventual judgment. In particular, there was a real risk that, had the litigation gone forward, Plaintiffs would have been unable to establish liability for the Post-Disclaimer Period, significantly reducing the recovery for some Class Members and leaving other Class Members with no recovery at all. Additionally, during the Pre-Disclaimer Period, Defendants included a disclaimer that the service charge was not a gratuity on some but not all contracts and invoices. Should the case proceed to trial, Plaintiffs would have to prove that for each event, the disclaimers were either omitted entirely or were insufficient to allow the reasonable patron to believe that the service charge was not a gratuity. While Plaintiffs believe that they could establish liability and damages, ultimate success is speculative, particularly for claims arising during the Post-Disclaimer Period. In contrast, the Proposed Settlement guarantees that all Class Members who worked for Defendants from July 2009 through May 26, 2016 will receive immediate, significant relief of 31

18 B. Courts Routinely Approve Similar Settlements State and federal courts in New York have routinely approved similar settlements to recover unpaid gratuities under Labor Law 196-d. See, e.g., Fernandez v. Hospitality, No /2014, 2015 N.Y. Misc. LEXIS 2193 (Sup. Ct. N.Y. Cty., June 20, 2015) (Judge Carol Edmead approving settlement of 196-d claims on behalf of banquet servers at Yankee Stadium); Spicer v. Pier Sixty LLC, 2012 U.S. Dist. LEXIS (S.D.N.Y. Sep. 14, 2012) (U.S. District Judge Paul Engelmeyer approving settlement on behalf of banquet cruise servers for unpaid overtime and gratuities); Ramirez v. Lovin Oven Catering Suffolk, Inc., 2011 U.S. Dist. LEXIS (S.D.N.Y. Oct. 27, 2011) (U.S. Magistrate Judge James Cott approving class settlement on behalf of servers and bartenders for unpaid gratuities); McMahon v. Olivier Cheng Catering & Events, LLC, 2010 U.S. Dist. LEXIS (S.D.N.Y. Mar. 2, 2010) (U.S. District Judge Paul Gardephe approving settlement of case alleging unlawful retention of gratuities and failure to pay overtime); see also Maor v. IHG, Index No /2014 (J. Lefkowitz, same); Chhab, Index No. 2358/2012 (J. Scher, same); Parada, Index No /2011 (J. DeStefano, same); Chavarria, Index No /2011 (J. DeStefano, same); Toledo, Index No /2011 (J. Driscoll, same). III. CLASS CERTIFICATION SHOULD BE GRANTED A. Courts Routinely Certify Class Actions in Wage and Hour Cases Class certification is routinely granted in wage and hour actions in the State of New York, especially in the context of 196-d claims based on service charges since the World Yacht decision. See, e.g., Carlin, Index No /2012 (Sup. Ct. Nassau Cty. Dec. 20, 2013) (certifying a class of workers at defendants catering facilities and restaurants); Lopez, 3465/2012 (Sup. Ct. Nassau Cty. Aug. 13, 2013) (granting plaintiffs motion for class-action status across three catering facilities and off premise locations); Macaluso, Index No. 3216/2012 (certifying a class of service of 31

19 workers at one primary location); Ruiz v. Scotto s Smithtown Rest. Corp., /2010 (Sup. Ct. Nassau Cty. July 17, 2013) (approving settlement on behalf of a class of nearly 3,000 service employees at defendants multiple catering facilities); Mansions Catering, Inc., 2009 NY Slip Op U (certifying class of employees who work at defendants restaurant and catering facilities who alleged defendants imposed a 20% service charge which to the reasonable customer purported to be a gratuity); Krebs v. The Canyon Club, 880 N.Y.S.2d 873 (Sup. Ct. Westchester Cty. 2009) (certifying class of special event employees who alleged defendants imposed a service charge that was purported to be a gratuity under the reasonable customer standard of World Yacht); Martin, Index /2011 (Sup. Ct. Westchester Cty. Mar. 22, 2013) (certifying a class of service employees at dozens of catering locations). Section 196-d claims are particularly well-suited to class treatment. In Spicer, 269 F.R.D. at 321, U.S. District Judge Leonard B. Sand, in certifying a class of workers asserting claims essentially identical to those here, found that this type of case presents the quintessential example of a common claim suited to class adjudication: Commonality is clearly satisfied in this instance; class members assert the same legal claim based on World Yacht against a service charge policy that was in all material respects nearly identical for each Plaintiff and for each event. Id. at 337. There, as here, a trial on liability for any given event would look essentially identical whether it was prosecuted individually or on a class basis. Id. at 338. In all of these cases, courts have found that all requisites of CPLR 901 and 902 have been met by workers seeking payment of gratuities that were improperly withheld by their employers. B. CPLR 901 IS TO BE LIBERALLY CONSTRUED CPLR 901(a) provides that one or more members of a class may sue as representative parties on behalf of a class if: of 31

20 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 [ representation ]; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy [ superiority ]. It is well established that, in deciding whether to certify a class, a court must be mindful of [the Appellate Division s] holding that the class certification statute should be liberally construed. Kudinov v. Kel-Tech Const. Inc., 65 A.D.3d 481, 481 (1st Dept. 2009) (citing Englade v. Harper Collins Publs., Inc., 289 A.D.2d 159, 159 (1st Dept. 2001)); Pruitt v. Rockefeller Center Properties, Inc., 167 A.D.2d 14, 21 (1st Dept. 1991) ( [a]ppellate courts in this state have repeatedly held that the class action statute should be liberally construed any error, if there is to be one, should be... in favor of allowing the class action ); Friar v. Vanguard Holding Corp., 78 A.D.2d 83, (2d Dept. 1980); Galdamez v. Biordi Constr. Corp., 13 Misc. 3d 1224(A) (Sup. Ct. N.Y. Cty. Oct. 17, 2006), aff d 855 N.Y.S.2d 104 (1st Dept. 2008). While, as demonstrated below, the instant action clearly meets the requirements for class certification, any doubts must be resolved in favor of class certification. Pruitt, 167 A.D.2d at 21 ( any error, if there is to be one, should be in favor of allowing the class action ); Friar, 78 A.D.2d at 90-92; Brandon, 106 A.D.2d at 168. C. THIS ACTION SATISFIES ALL OF THE PREREQUISITES OF of 31

21 1. The Class Is So Numerous That Joinder of All Members Is Impracticable Section 901(a)(1) requires that the class be so numerous that joinder of all class members is impracticable. There is no mechanical test nor a set quantity of prospective class members which must exist to determine whether class membership is so numerous as to make actual joinder under CPLR 901(a)(1) impracticable. See, e.g., Krebs, 880 N.Y.S.2d at *7 (citing Friar, 78 A.D.2d at 96). There is also no requirement that the exact number of class members be immediately known. See Smith v. Atlas International Tours, 80 A.D.2d 762, 436 N.Y.S.2d 722, 724 (1st Dept. 1981). Courts have held the general threshold for impracticability of joinder to be around 40, although numerosity has been satisfied with less than 40 class members. See e.g., Pesantez, 251 A.D.2d at 11 (holding that 40 class members was many more than required to satisfy numerosity and certifying class of about 80 workers); Siler v. Landry s Seafood House-N.C., Inc., No. 13- CV-587 (RLE), 2014 U.S. Dist. LEXIS (S.D.N.Y. June 30, 2014) (class of 24 servers met numerosity requirement in case for unpaid wages and gratuities). Based on Named Plaintiff s affidavit, Plaintiffs Counsel s due diligence and investigation, and Defendants documents, it can logically be assumed that Defendants have employed at least 100 service workers since July See Ex. E 6; see also NYSCEF Doc. No Based on the foregoing, the numerosity requirement has been satisfied. 2. Questions of Law and Fact Common to the Class Predominate over Questions Affecting Only Individual Class Members ( Commonality ) The second requirement of 901 is that common questions of law or fact predominate over any questions affecting individual members. The fundamental issue under CPLR 901 is whether the proposed class action asserts a common legal grievance, i.e., whether the common issues predominate over or outweigh the subordinate issues that pertain to individual members of the of 31

22 class. Geiger v. Amer. Tobacco Co., 181 Misc.2d 875, 883 (Sup. Ct. Queens Cty. 1999) (quoting 3 Weinstein-Korn-Miller, N.Y. Civil Practice ); see also Pesantez, 251 A.D.2d 12 (citing Pruitt, 167 A.D.2d at 22)). In determining whether the claims of Named Plaintiff and putative class members share common questions of law or fact, factual identity between the Plaintiff s claim and those of the class he seeks to represent is not necessary if these claims arise, at least in part, from a common wrong or set of wrongs regardless of individual factors. Pajaczek, 18 Misc. 3d 1140(A). The statute clearly envisions authorization of class actions even when there are subsidiary questions of law or fact not common to the class. Weinstein v. Jenny Craig Operations, Inc., 41 Misc. 3d 1220(A) (Sup. Ct. N.Y. Cty. 2013) (quoting Weinberg v. Hertz Corp., 116 A.D.2d 1, 6 (1st Dept. 1986), aff d. 69 N.Y.2d 979 (1987)). It is also not necessary that the amount of damages suffered by each class member be the same. See Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382 (2014) (noting that the legislature enacted CPLR 901 (a) with a specific allowance for class actions in cases where damages differed among the plaintiffs. ); see also Picard v. Bigsbee Enters., Inc., 2014 NY Slip Op (U), 4 (Sup. Ct. Albany Cty. 2014) ( settled law holds that individualized issues of damages do not defeat class certification where, as here [in a 196-d case for unpaid gratuities], damages are easily measured, computed and allocated. ); Andryeyeva v. N.Y. Health Care, Inc., 994 N.Y.S.2d 278, 290 (Sup. Ct. Kings Cty. 2014) (differences in the amount of damages each plaintiff is owed based on the number of shifts she worked is not an impediment to class certification ). New York courts have consistently declined to follow the rigorous analysis test for commonality established by the U.S. Supreme Court in Comcast Corp. v. Behrend, 133 S.Ct (2013), and Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), finding those holdings to be at of 31

23 odds with the well-established rule requiring liberal construction of CPLR 901. See, e.g., Cardona v. Maramont Corp., 43 Misc. 3d 1230(A), 1230A (Sup. Ct. N.Y. Cty. 2014) (rejecting rigorous analysis test and noting that the state courts have maintained their liberal interpretation of Article 9 despite the Comcast and Dukes decisions ); Stecko, 121 A.D.3d at 543 ( motion court was not required to apply the rigorous analysis standard utilized by the federal courts in addressing class certification motions under rule 23 (b) of the Federal Rules of Civil Procedure ); see also City of N.Y. v. Maul, 14 N.Y.3d 499, 509 (2010) (noting that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it ). i. The Claims of Each Member of the Putative Class Arise from a Common Wrong Even under the rigorous analysis test, class certification would clearly be appropriate in this case because Named Plaintiff s claims and those of the putative class members arise from a common wrong: namely, that Defendants allegedly engaged in a policy of assessing a service charge purported to be a gratuity, and failed to distribute this charge to the workers. Plaintiffs allege that Named Plaintiff and the putative class worked a significant number of events under the same standard-form contract, which requires customers to pay a service charge. See Ex. E 4. The affidavit submitted by Named Plaintiff demonstrates that the putative class claims arise from common wrongs. Named Plaintiff declares that other service employees were not properly provided the appropriate portion of gratuities. See Ex. E 6-9. In addressing another case with claims that were virtually identical to this one, one federal judge recognized that [e]ven granting that there were slight variations in the way the service charge was presented to clients, the service charge was collected and distributed in an essentially uniform manner for each event, providing a common issue of fact. Spicer, 269 F.R.D. at of 31

24 ii. Class-wide Questions Predominate over Individual Issues The second requirement of CPLR 901(a)(2) is that common questions of law or fact predominate over any questions affecting only individual class members. This rule requires predominance, not identity or unanimity, among class members. Andryeyeva, 994 N.Y.S.2d at 290 (quoting Friar, 78 A.D.2d at 97). In the instant matter, the questions of law and fact common to all members of the putative class predominate over questions affecting only individual class members. The common questions of law and fact can be succinctly stated: (1) Did Defendants impose charges that were, or were purported to be, gratuities, as understood by reasonable patrons under 196-d and World Yacht? (2) Did Defendants retain any of the imposed charges that may have been, or were purported to be, gratuities, as understood by reasonable patrons under 196-d and World Yacht? (3) Was any portion of the imposed charges withheld from Plaintiffs? Where a putative class of workers claims arise out of their employers alleged retention of gratuities in violation of Labor Law 196-d, each class member s claim arises from the same course of events, produced by a single system, namely Defendants system for collecting, explaining, representing, and distributing the service charge. Spicer, 269 F.R.D. at 33; see also Gonzalez v. Pers. Touch Moving, Inc., No /14, 2014 N.Y. Misc. LEXIS 3568, at *5 (Sup. Ct. Apr. 29, 2014) (finding commonality satisfied in class action for wrongfully withheld gratuities with similar common questions). 3. Named Plaintiff s Claims Are Typical of the Claims of the Putative Class ( Typicality ) Section 901(a)(3) requires that Named Plaintiff s claims be typical of the proposed class. The typicality requirement is satisfied when Named Plaintiff s claims derive from the same of 31

25 practice or conduct that gave rise to the remaining claims of the class members and is based upon the same legal theory. Friar, 78 A.D.2d at 98; see also Pajaczek, 18 Misc. 3d 1140(A); Galdamez, 2006 WL *3 (Sup. Ct. N.Y. Cty. 2006), aff d 855 N.Y.S.2d 104 (1st Dept. 2008). The essence of typicality is that the representative party must have an individual cause of action and that the representative s interest must be closely identified with that of the class members. See 2 Weinstein, Korn & Miller, N.Y. Civ. Practice, ). To demonstrate typicality, it is not necessary that the claims of the named plaintiff be identical to those of the class. Super Glue v. Avis Rent-A-Car System, Inc., 132 A.D.2d 604 (2d Dept. 1987), aff d as mod., on other grounds, 159 A.D.2d 68 (2d Dept. 1990). Nevertheless, the named plaintiffs claims must not be antagonistic to or in conflict with the interest of the other class members, Gilman v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 93 Misc. 2d 941, 945 (Sup. Ct. N.Y. Cty. 1978). Here, Named Plaintiff s claims are not merely typical of the claims of the members of the putative class they are identical. Named Plaintiff, like all members of the putative class, alleges that Defendants failed to remit gratuities that she was entitled to under the NYLL. Typicality is present because: (1) the claims of the Named Plaintiff and all other members of the putative class arise from the same identical conduct; (2) Plaintiffs suffered from the same wrong committed by Defendants for which Defendants are liable (i.e., the withholding of gratuities); and (3) Plaintiffs case is based on the same legal theory. See, e.g., Martin, at *24 ( [S]since the claims arise from the same conduct [i.e. the same alleged wrong committed by Defendants] and Plaintiffs claims are based on the same legal theory (i.e., of 31

26 violation of Labor Law 196-d) as the claims of the class members, the typicality requirement has been satisfied. ) (citing Friar, 78 A.D.2d at 99); Krebs, 880 N.Y.S.2d, *11-12 (plaintiffs claims typical even though they did not work the same events). 4. Named Plaintiff Will Fairly and Adequately Protect the Interests of the Class ( Adequacy ) 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. Adequacy of representation further requires that counsel for the named Plaintiffs be competent and that the interests of the named Plaintiffs and the members of the class not be adverse. Pajaczek, 859 N.Y.S.2d at 897 (citing Pruitt, 574 N.Y.S.2d 672). i. The Named Plaintiff s Interests are Aligned with the Class Members The first essential factor to consider in determining the adequacy of representation is the potential for conflicts of interest between the representative and the class members. Globe Surgical Supply, 59 A.D.3d at 144. In this case, there is virtually no potential for conflict, as the Named Plaintiff seeks the same relief as the Class Members to receive the gratuities owed to her as set forth in the allocation formula of the Proposed Settlement Agreement. Thus, the Named Plaintiff s interests are undoubtedly aligned with those of the class members. The Named Plaintiff also stands to gain a pecuniary benefit through the successful prosecution of this action, ensuring that she will vigorously represent the interests of herself and thus, the class. In fact, the allocation formula is no more favorable to the Named Plaintiff than the Class Members. Each Class Member is entitled to collect based on the number of events he or she worked for Defendants. See Ex. A 3.5. The fact that the Named Plaintiff agreed to this formula for allocation further demonstrates that she already has protected the interest of all Class Members, of 31

27 ensuring fair distribution to all Class Members. 5 ii. The Named Plaintiff is Familiar With and Actively Engaged in the Lawsuit The second essential factor to consider in determining the adequacy of representation is the personal characteristics of the proposed class representative, including her familiarity with the litigation. See Globe Surgical Supply, 59 A.D.3d at 144. Here, Named Plaintiff is fully familiar with this lawsuit and fully aware of her claims and those of the individuals she seeks to represent. See generally Ex. E. Named Plaintiff Pino also has testified that she seeks to represent other employees of Defendants to help them recover unpaid gratuities. Ex. E 10. Named Plaintiff has reviewed and executed the Proposed Settlement Agreement, attesting to her involvement in the litigation and adequacy as a Class Representative. See Ex. A. iii. Plaintiffs Counsel Are Skilled and Experienced with Wage and Hour Class Action Litigation The third essential factor to consider in determining the adequacy of the representation is the quality of class counsel. See Globe Surgical Supply, 59 A.D.3d at 144. In determining whether the action will be vigorously prosecuted, courts look to the skill and experience of counsel. See Super Glue Corp, 132 A.D.2d at 607; Gilman, 93 Misc. 2d at 945. In the instant matter, the Named Plaintiff is represented by Leeds Brown and Virginia & Ambinder who are experienced in federal and state court class actions, complex litigation and labor and employment law. See Cohen Aff As set forth in more detail in, II.A.1.ii above, supra, Leeds Brown and Virginia & Ambinder have litigated and settled several class-action settlements under 196-d and have represented numerous clients in wage and hour litigation under state and federal law. Id. 5 The mechanisms of the two-stage process that was discussed in Point II allow for any Class Member to challenge, object to, or opt out of the settlement should she believe such allocation is unfair of 31

28 5. A Class Action Is Superior to Other Available Methods ( Superiority ) In accordance with 901(a)(5), courts in other wage and hour cases have concluded that a class action is the superior method for resolving plaintiffs and the class s claims regarding unpaid wages and gratuities. See e.g., Krebs, 880 N.Y.S.2d 873; Mansions Catering, 2009 N.Y. Misc. LEXIS 5661; Pesantez, 251 A.D.2d at 12; Nawrocki, 2 A.D.3d 534, 2011 NY Slip Op , *12; Brandy v. Canea Mare Contracting, Inc., 34 A.D.3d 512 (2d Dept. 2006); Galdamez, 2006 WL at *3; Pajaczek, 18 Misc. 3d, *5. Indeed, the entire purpose of the class action device is to consolidate claims that are reasonably common to each other and for which joinder would be impracticable. See generally Smellie v. Mount Sinai Hosp., 2004 WL at *4 (S.D.N.Y. Nov. 29, 2004). Further, the Krebs court noted that [i]t is obvious that the prosecution of separate actions by each affected member of the Club s catering wait staff would be highly impractical and very inefficient. It is likely that the same patrons would be subject to repeated depositions and trials. The same contracts would have to be examined and reviewed repetitively. Krebs, at *20. Subjecting the court and the litigants to the expense and time of multiple trials would be wasteful, and resolving the common issues on a class-wide basis will create uniform resolution of the issues, thereby providing a framework for the adjudication or settlement of whatever individual damages issues remain. Friar, 78 A.D.2d at 97. Accordingly, a class action is clearly superior to any alternative means of obtaining relief for the members of the class. D. SECTION 902 FACTORS SUPPORT CLASS CERTIFICATION Pursuant to CPLR 902, the Court should consider the following factors in exercising its discretion in favor of class certification: of 31

29 1. The Interest of Members of the Class in Individually Controlling the Prosecution or Defense of Separate Actions The strongest indication of a significant interest on the part of class members in controlling their own actions is the existence of individual suits that have been or are about to be commenced. Bickerton v. Charles Rose & Charlie Rose, Inc., No /2012, 2013 N.Y. Misc. LEXIS 2762, at *8 (Sup. Ct. N.Y. Cty. June 28, 2013) (quoting Weinstein, Korn & Miller, N.Y. Civil Practice, ). Here, Plaintiffs Counsel and Defendants counsel are unaware of any other action commenced against Defendants pursuant to NYLL 196-d. Cohen Aff. 57. Additionally, where, as here, each class member stands to recover a relatively small amount of money, courts generally presume that class members do not have an interest in individually controlling the litigation. E.g. Dowd v. All. Mtge. Co., 2008 NY Slip Op (U), 4, 21 Misc. 3d 1112(A), 1112A (Sup. Ct. N.Y. Cty. 2008) ( [A]s a result of the small amount of money involved in the claims of the members individually, it is inconceivable that any member of the Class would have an interest in controlling the litigation on their own. ). 2. The impracticability or inefficiency of prosecuting or defending separate actions In wage and hour cases, New York courts have repeatedly found that prosecuting separate actions is impractical, given the relatively small amount of damages each class member stands to recover when compared to the cost of bringing an individual case. E.g. Williams, 121 A.D.3d 441 at 442 (difference in litigation costs and the modest damages to be recovered by each individual employee make individual litigation impractical); Stecko, 121 A.D.3d at 543 ( damages allegedly suffered by an individual class member are likely to be insignificant, and the costs of prosecuting individual actions would result in the class members having no realistic day in court ) (quoting Nawrocki, 82 A.D.3d at 536) of 31

30 3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class As noted in III.D.1, supra, as of the time of this filing, counsel for both parties are unaware of any other wage and hour litigation pending against Defendants in any judicial forum. Additionally, to the best of counsels knowledge, there are no other known pending legal or administrative proceedings concerning the same claims. 4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum CPLR 902(4) requires consideration of whether the chosen forum is an appropriate venue for the litigation. It is well-established that in a case seeking unpaid wages, the location where the work was performed is an appropriate venue. See Globe Surgical Supply, 59 A.D.3d at 136 (citing Galdamez, 2006 NY Slip Op 51969[U] at *5). In this case, the Named Plaintiff is alleged to reside in New York County. NYSCEF Doc. No Moreover, the dispute revolves around unpaid gratuities earned while Plaintiff performed work at Defendants facilities in New York County. Thus, concentrating the litigation in New York County is clearly desirable, as no other forum has a comparable interest in adjudicating this dispute. 5. The difficulties likely to be encountered in the management of a class action The primary issue on a motion for class certification is whether the claims as set forth in the complaint can be efficiently and economically managed by the court on a classwide basis. Globe Surgical Supply 59 A.D.at In wage and hour cases, courts have consistently held that any potential difficulties in managing a class action are far outweighed by the difficulties of prosecuting each class member s claim individually. E.g. Williams, 2013 NY Slip Op (U) at *6 ( Individual class members numerosity, relative unsophistication, and limited resources and of 31

31 the likely value of their recovery compared to the expenses entailed in separate, individual actions outweigh any anticipated difficulties in managing a class action. To the contrary, managing multiple individual actions likely would tax judicial resources more heavily. ); see also Papantoniou v. V. Barile Inc., 2015 NY Slip Op (U), *15-16 (Sup. Ct. N.Y. Cty. 2015). In this case, there are few difficulties in managing a class action based upon the claims herein, particularly when compared to the complications of managing multiple actions. CONCLUSION Wherefore, for the reasons set forth above, and those set forth in the accompanying Affirmation of Brett R. Cohen, Plaintiffs respectfully request that this Court issue an order: (1) preliminarily approving the proposed settlement; (2) certifying the proposed Class; (3) appointing Leeds Brown and Virginia & Ambinder as Class Counsel; (4) authorizing distribution of the proposed Notice of Settlement and claim form; (5) approving of the class action settlement procedures including the implementing dates; and, (6) any other relief this Court deems proper. Dated: Carle Place, New York June 21, 2016 Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York (516) & - Lloyd R. Ambinder, Esq. LaDonna Lusher, Esq. VIRGINIA & AMBINDER, LLP 40 Broad St., 7 th Floor New York, NY (212) Attorneys for Plaintiff and Putative Class of 31