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granting Rule 23 class certification for New York call center workers who were required to work mandatory weekend shifts for 'comp time' and to perform other work related tasks off-the-clock
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12 Civ. 4656 (GBD)(FM)
03-17-2014
PETER ENEA, VICTOR MCLEAN, CHANTAY DINGLE-EL, KENNY ALTIDOR, individually and on behalf of others similarly situated, Plaintiffs, v. Bloomberg, L.P., Defendant.
MEMORANDUM DECISION AND ORDER
:
Before the Court is the Rule 23 motion for class certification of common issues of Representative Plaintiffs Peter Enea, Victor Mclean, Chantay Dingle-El, and Kenny Altidor. Plaintiffs allege that Defendant Bloomberg L.P. violated the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") by failing to pay statutorily required overtime. See Compl., Causes of Action ¶¶ 37-41.
On July 30, 2012, Plaintiffs moved for class and collective action relief. ECF No. 8. After full briefing by the parties, and oral argument on November 20, 2012, this Court granted Plaintiffs' motion to certify a collective action under FLSA, but denied Rule 23 class certification for its claims under NYLL without prejudice to renew. ECF No. 30. On August 9, 2013, Plaintiffs filed a renewed motion for Rule 23 class certification for NYLL claims against Bloomberg. ECF No. 49.
Plaintiffs' Rule 23 motion for class certification is GRANTED.
BACKGROUND
Plaintiffs in this wage and hour action seek class certification under Rule 23 for a class of call center telephone support staff, Global Technical Support Representatives ("GTSRs"), that allegedly worked in New York for more than 40 hours in a pay week without payment of statutorily required overtime at any time within six years preceding the filing of the Complaint on June 14, 2012 (collectively, the "Class"). See Compl. ¶ 15. Plaintiffs have also brought this case as a collective action under FLSA on behalf of the same group of GTSRs that worked in the U.S. within three years preceding the filing of the Complaint. See id. ¶ 14.
Plaintiffs claim that there are several issues of law and fact common to the Class, including but not limited to: (1) whether Bloomberg "suffered or permitted" Plaintiffs to work hours over forty; (2) whether Bloomberg failed to record all of the hours Plaintiffs worked; (3) whether Bloomberg knew or should have known that Plaintiffs worked hours over forty; (4) whether Bloomberg gave Plaintiffs "comp time" in lieu of overtime pay pursuant to its comp time policy and whether that policy was unlawful; (5) whether Bloomberg paid Plaintiffs on a salary basis without payment of time and one half premium pay; (6) whether Bloomberg's failure to pay additional compensation for overtime work was unlawful; (7) whether Bloomberg's failure to pay additional compensation for overtime work was in "good faith;" (8) whether Plaintiffs are exempt from overtime pay; and (9) if Bloomberg is liable, what is the appropriate measure of damages. See Pls. Renewed Mem. at 20-22 (ECF No. 53).
Defendant opposes class certification on the basis that Plaintiffs have failed to meet Rule 23(a)(2)'s commonality requirement and Rule 23(b)(3)'s predominance requirement. Blomberg argues that "neither of the two core issues in this case (the extent to which each [GTSR] worked compensable overtime, and whether each [GTSR] is exempt from overtime pay under NYLL) can be resolved 'in one stroke.'" Bloomberg Opp'n at 7 (citing Dukes v. Wal-Mart Stores, 131 S. Ct. 2541, 2551 (2011)).
CLASS CERTIFICATION
I. Legal Standard
"The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). "A district judge is to assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met, just as the judge would resolve a dispute about any other threshold prerequisite for continuing a lawsuit." In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 42 (2d Cir. 2006). Courts must undertake "a rigorous analysis" and resolve any factual disputes relevant to certification. In re Am. Intl. Grp. Secs. Litig., 689 F.3d 229, 238 (2d Cir. 2012). The Rule 23 inquiry may overlap with that of the merits, although courts are not permitted to engage in "free-ranging merits inquiries at the certification stage." Wal-Mart, 131 S. Ct. at 2551; see also Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194 (2013). "The Second Circuit has emphasized that Rule 23 should be given liberal rather than restrictive construction" and has demonstrated a "general preference . . . for granting rather than denying class certification." Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361 (E.D.N.Y. 2009) (internal quotations and citations omitted). District courts customarily retain "broad discretion" in the contexts of class and issue certification. Parker v. Time Warner Entm't Co., 331 F.3d 13, 28 (2d Cir. 2003) (collecting cases).
Any findings of fact at the class certification stage are for Rule 23 purposes only, and are not binding on the trier of facts on the merits. See In re Initial Pub. Offerings Secs. Litig., 471 F.3d at 41.
Rule 23(a) has four threshold requirements: (1) numerosity ("the class is so numerous that joinder of all members is impracticable"), (2) commonality ("there are questions of law or fact common to the class"), (3) typicality ("the claims or defenses of the representative parties are typical of the claims or defenses of the class"), and (4) adequacy of representation ("the representative parties will fairly and adequately protect the interests of the class"). Fed. R. Civ. P. 23(a).
Once a Plaintiff has demonstrated that its proposed class meets these four requirements, the Court must determine whether the action can be maintained under one of the three subsections of Rule 23(b). See Fed. R. Civ. P. 23(b). Here, Plaintiffs argue that certification under Rule 23(b)(3) is appropriate because the proposed Class satisfies that subsection's predominance requirement that "questions of law or fact common to class members predominate over any questions affecting only individual members," and its superiority requirement that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3); See also Pls. Mem. at 15-18 (ECF No. 9), Pls. Renewed Mem. at 18-20.
A. Rule 23(a)
Plaintiffs propose a Class of "call members consisting of [GTSRs] working in New York who worked more than 40 hours in a pay week without payment of overtime at the rate of time and one-half at any time within the six years preceding the filing of the Complaint." Compl. ¶ 15. Defendant contends that, with respect to the Rule 23(a) factors, Plaintiffs cannot adequately demonstrate commonality, typicality, or adequacy. See Bloomberg Opp'n at 7-15.
i. Ascertainability of Class
Though not expressly stated in Rule 23, many courts have read an implicit requirement of class "definiteness and ascertainability" into the Rule. 1 Newberg on Class Actions §§ 3:1, 3:2 (5th ed. West 2013). Rule 23 definiteness and ascertainability requires that the proposed class size is knowable, and that the class is defined in such a way that proposed class members are objectively determinable. Id. § 3:1; see also, e.g., In re Initial Pub. Offerings Secs. Litig., 471 F.3d at 30. Here, Plaintiffs meet the ascertainability requirement because the proposed Class is a group of approximately 125 individuals that can be identified in Bloomberg's payroll and badge date and time stamp data. See Pls. Renewed Mem. at 5; see also Russo Declr. at 2; In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, (2d Cir. 2001) (upholding class certification where "class members . . . can be identified by defendants' own records"), superseded by statute on other grounds)).
ii. Numerosity of Class
Rule 23(a)(1) requires that a class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Numerosity under Rule 23(a)(1) is presumed when a class consists of forty or more plaintiffs. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Plaintiffs assert, and Defendant does not dispute, that the number of class members is at least 125. See Dec. 13, 2013 Oral Arg. ("Hearing") Tr. 3:25; see also Pls. Renewed Mem. at 5. The proposed Class is thus sufficiently numerous under Rule 23(a).
iii. Commonality of Claims
Under Rule 23(a)(2), Plaintiffs must demonstrate that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Commonality requires Plaintiffs to demonstrate that the proposed class members "have suffered the same injury," which the Supreme Court in Walmart Stores, Inc. v. Dukes recently clarified to mean that courts should look to "the capacity of a classwide proceeding to generate common answers" to the questions raised by common claims of a putative class. 131 S. Ct. 2541, 2551 (2011). Significantly, however, "[d]espite the rigor of the Rule 23 requirements, commonality has never been understood to require that all issues must be identical as to each member, but rather [to] require[] that plaintiffs identify some unifying thread among the members' claims that warrant[s] class treatment." Meyer v. USTA, No. 11 Civ. 6268, 2013 WL 1777556, at *4 (S.D.N.Y. Apr. 25, 2013) (internal quotation marks omitted) (emphasis added); Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008) (same).
All putative Class members are similarly situated GTSR employees at Bloomberg that allegedly worked over 40 hours per week, and therefore the answers to the common issues considered at trial will be the same for all. Contrary to Defendant's assertions (Bloomberg Opp'n at 7-12), all material commonality considerations in this case pertain to whether Defendant knew, should have known, or in fact required that GTSRs worked overtime and were thus performing uncompensated work. See Kuebel v. Black & Decker Inc., 643 F.3d 352, 365 (2d Cir. 2011). Defendant claims that one of the core issues in this case is the extent to which each GTSR worked compensable overtime. However, Plaintiffs must first show that Bloomberg "suffered or permitted" Plaintiffs to work hours over forty or knew that plaintiffs worked hours over forty; and whether Bloomberg's failure to pay additional compensation for overtime work was unlawful. Duling v. Gristede's Operating Corp., 267 F.R.D. 86, 96 (S.D.N.Y. 2010).
The commonality analysis examines whether there are questions and answers that are common to the proposed Class. Whether other, individual issues defeat commonality is the purpose of the 23(b)(3) predominance inquiry.
Plaintiffs have alleged that Defendant had several policies in place during the Class Period that required Plaintiffs to perform uncompensated work: Bloomberg required GTSRs to come in early to log on to their computers; Bloomberg required GTSRs to work mandatory weekend shifts (for which it awarded them only "comp" time); Bloomberg required GTSRs to continue working past the end of their shift when they could not finish a call during their shift, and Bloomberg required GTSRs to study from home in preparation for required exams and certifications. See Pls. Mem. at 10. Plaintiffs have provided timesheet and testimonial data to demonstrate that Bloomberg required GTSRs to perform such work. See Enea Decl. ¶¶ 11-18; Mclean Decl. ¶¶ 11-19; Dingle-El Decl. ¶¶ 20-25; Altidor Decl. 20-25; Pls. Renewed Mem. at 5; Hearing Tr. at 13:13-18. This is sufficient to satisfy the commonality requirement. See, e.g., Lewis v. Alert Ambulette Serv. Corp., No. 11-CV-442, 2012 WL 170049, at *10 (E.D.N.Y. Jan. 19, 2012) ("In wage cases, the commonality requirement is usually satisfied where the plaintiffs allege that defendants had a common policy or practice" that was unlawful.); Garcia v. Pancho Villa's of Huntington Village, Inc., 281 F.R.D. 100, 106 (E.D.N.Y. 2011) (explaining that the need for an individualized determination of damages generally does not defeat the commonality requirement).
Bloomberg's badge data alone shows that 99 of the 126 GTSR employees had documented overtime work exceeding 40 hours. Russo Decl. ¶ 18.
Similarly, Bloomberg's purported affirmative defense, which relies on the administrative and computer exemptions, applies against all Plaintiffs for all claims (all Plaintiffs raise the same overtime claim under New York Labor law). See Answer (ECF No. 5), Fourth Affirmative Defense. New York law requires payment of overtime to non-exempt employees, NYCRR § 142.2, and also applies the same exemptions for administrative and computer employees as federal law. Id. As noted at oral argument, Defendant contends that every GTSR qualifies as an exempt employee. See Hearing Tr. at 78:1-22. Furthermore, Bloomberg conceded that its "view is [that] the baseline of what every[] [GTSR] is doing renders them exempt," and that any separate argument with respect to individual Plaintiffs would be limited to what went beyond this baseline. Id. at 79:9-13. Indeed, the only issue that matters for purposes of the two exemption defenses is determining the primary job duty of all GTSRs. See 29 C.F.R. §541.200(a)(2)-(3); 29 C.F.R. §541.400(b).
Analysis of the typicality and adequacy requirements in Rule 23(a)(3) and (a)(4), respectively, involves consideration of similar issues, and the two elements are frequently evaluated together. See Davis, 2013 WL 4712501, at *5 (internal quotation marks and citations omitted) ("In practice, the commonality and typicality requirements of Rule 23(a) tend to merge, and [t]hose requirements . . . also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest."); see also 1 Newberg on Class Actions § 3:57 (5th ed. West 2013) ("If a class representative's claim is not typical, she may not have the motivation or incentives to adequately pursue the claims of other class members. Conversely, if a class representative's claims are typical of those of the class, then the central component underlying the theory of representative litigation is already in place: by pursuing her own interests, the representative will necessarily promote the interests of absent class members as well.").
1. Typicality
To ensure that named plaintiffs' interests are aligned with those of the putative class members whom they seek to represent, Rule 23(a)(3) requires that the claims of named plaintiffs be typical of the claims of the proposed class. "The purpose of typicality is to ensure that class representatives have the incentive to prove all the elements of the cause of action which would be presented by the individual members of the class were they initiating individualized actions." Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 4712501, at *3 (S.D.N.Y. Aug. 29, 2013) (internal quotation marks and citation omitted). "Courts tend to interpret typicality as requiring that the class members' claims arise from the same course of events, meaning [that] each class member must make similar legal arguments to prove the defendant's liability." Jacob v. Duane Reade, 289 F.R.D. 408, 416 (S.D.N.Y. 2013) ("Duane Reade I") (internal quotation marks omitted) (citing Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)).
Additionally, "[i]t is axiomatic that [w]hen it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." Id. at 417 (internal quotation marks omitted) (citing Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993)); see also Espinoza v. 953 Associates LLC, 280 F.R.D. 113, 127-28 (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 19379 (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.")
In this case, each named plaintiff is part of the same group of 125 individuals who were GTSRs employees of Bloomberg during the Class Period. The named plaintiffs have stated claims and proffered evidence of injury as a result of Bloomberg's practice to require overtime work without lawful compensation. See Enea Decl. ¶¶ 19-24; Mclean Decl. ¶¶ 20-25; Dingle-El Decl. ¶¶ 20-25; Altidor Decl. ¶¶ 20-25. Thus, typicality in this case is met.
2. Adequacy of Named Plaintiffs
The fourth prong of Rule 23(a) mandates that parties seeking to certify a class demonstrate that the named plaintiffs will "fairly and adequately" represent that class. Fed. R. Civ. P. 23(a)(4). Courts generally interpret this requirement to mean that named plaintiffs must be similarly situated to the proposed class in terms of interests and injury (Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)), and they may have no interests adverse to those of the putative class, lest those conflicts of interest interfere with named plaintiffs' "faithful performance of their duties as class representatives" and the efficient prosecution of the class claims. Kamean v. Local 363, Int'l Bhd. of Teamsters, 109 F.R.D. 391, 395 (S.D.N.Y. 1986) (denying class certification due to conflicts of interest compromising named plaintiffs and proposed class counsel); see also In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011) ("Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members."). To defeat class certification on adequacy grounds, any conflicts must be fundamental.
See In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) ("[i]n order to defeat a motion for certification . . . the conflict must be fundamental") (internal quotation marks omitted); see also 1 Newberg on Class Actions § 3:58 (5th ed. West 2013) ("Only conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement..").
Defendant argues that the named Plaintiffs are not adequate because (i) they have significant credibility issues; and (ii) they have refused to meet their discovery obligations. See Bloomberg Opp'n at 14-15. With respect to the credibility of the named Plaintiffs, the evidence offered by Bloomberg is unpersuasive. Bloomberg asserts that because named Plaintiffs' testimony demonstrates that they each worked a different amount of overtime, their testimony is inconsistent and incredible. Id., see also id. at 5-6. However, a difference in the amount of overtime each employee worked is of limited probative value with respect to whether each named Plaintiff provided truthful testimony concerning how many overtime hours they themselves worked.
Furthermore, the evidence submitted by Bloomberg in support of its claim that named Plaintiffs have failed to meet their discovery obligations is not sufficient to defeat class certification. The evidence shows that although some of the named Plaintiffs initially did not conduct certain email searches in the exact manner requested by counsel, Plaintiffs made supplemental discovery productions in an effort to cure such deficiencies. See, e.g., Hykal Decl. ¶ 19. Further, any such discovery failures do not demonstrate that the proposed class representatives do not have an interest in pursuing the claims of the class, or that any proposed class representative has interests antagonistic to other class members. See In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d at 249.
3. Adequacy of Class Counsel
Part and parcel to the adequacy inquiry is the requirement that proposed counsel be able to "fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(B). Formerly an element of Rule 23(a)(4), this requirement is often still considered as part of the Court's 23(a)(4) adequacy analysis. This Circuit has interpreted this requirement to mean that class counsel must be "qualified, experienced and generally able to conduct the litigation." In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992) (internal quotation marks and citation omitted). Defendant Bloomberg does not directly challenge the adequacy of Plaintiffs' counsel (and proposed class counsel) Getman Sweeney, PLLC. Proposed class counsel is qualified and adequate to serve as Class Counsel based on their knowledge and expertise of employee wage and hour cases (including representation in several class actions); the time and resources already expended in identifying and investigating potential claims in this case, and the considerable resources that proposed counsel pledge to commit to representing the Class in ongoing litigation. See Fed. R. Civ. P. 23(g)(1)(A)-(B); Pls. Mem. at 13; Getman Decl. ¶¶ 17-19.
B. Rule 23(b)3
i. Predominance
For certification of 23(b)(3) classes, the Federal Rules require that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). "The predominance requirement is met if the plaintiff can establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof." Brown v. Kelly, 609 F.3d 467, 483 (2d Cir. 2010) (citation omitted).
Defendant argues that class issues do not predominate over individual issues because the individualized exemption determinations and damage calculations predominate over any classwide issues. See Bloomberg Opp'n at 16. As noted supra, Bloomberg's exemption argument applies equally against all potential class members and Bloomberg has not identified any issues with respect to liability that would require individual inquiries. As noted, to the extent Bloomberg claims exemption defenses in this case, such defenses will apply classwide to all GTSRs. See supra, see also Hearing Tr. at 78:1-22.
Defendant also asserts that Plaintiffs cannot demonstrate that individual damages can be measured on a classwide basis with common proof. Bloomberg Opp'n at 16, citing Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013). Bloomberg argues that Plaintiffs have failed to offer a model for damages that is consistent with their theory of liability. Bloomberg Opp'n at 16. Contrary to Bloomberg's assertion, the calculation of damages does not defeat the predominance requirement. Notably, Comcast cannot be read as narrowly as Bloomberg contends. In Comcast, the Supreme Court considered class certification for more than two million current and former Comcast subscribers who sought damages for purported violations of federal antitrust laws. 133 S. Ct. at 1429-30. The Supreme Court held that Fed. R. Civ. P. 23(b)(3) was not met because the plaintiffs' model of damages fell "far short of establishing that damages are capable of measurement on a classwide basis"; while such "[c]alculations need not be exact" at the class-certification stage, "any model supporting a plaintiff's damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation." Id. at 1433 (citation and internal quotations omitted). In other words, the inability to match a damages model with any one theory of liability was fatal to the class. Id. at 1433- 35.
Here, unlike in Comcast, if putative class members prove Bloomberg's liability, damages will be calculated based on the wages each GTSR lost due to Bloomberg's unlawful employment policies. Unlike in Comcast, Plaintiffs' proposed measure of damages is directly linked with their theory of liability under NYLL for uncompensated overtime. Indeed, the Second Circuit has routinely found that individualized calculations of damages do not defeat the predominance requirement. Plaintiffs' model for damages includes three types of common proof: (1) Bloomberg's badge data; (2) Bloomberg's electronic time stamp data; and (3) representative testimony. See Pls. Renewed Mem. at 19-24; Pls. Reply Mem. at 3. Such proof is directly linked to Plaintiffs' theory of liability - that they were supposed to be paid overtime for working more than 40 hours a week and were not. See Pls. Mem. at 16. Some factual variation among the circumstances of the various class members is inevitable and does not defeat the predominance requirement so long as Plaintiffs' proposed measure of damages is directly linked with their theory of liability, and is capable of measurement on a classwide basis. See In re U.S. Foodservice, 729 F.3d at 123 n. 8.
See In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 123 n. 8 (2d Cir. 2013); see also Morris v. Alle Processing Corp., No. 08 Civ. 4874, 2013 WL 1880919, at *11 (E.D.N.Y. May 6, 2013) (citations omitted) ("Although, the spread of hours compensation to which an individual is entitled will require an inquiry into the number of hours the individual worked and his rate of pay, such damages-related inquiries are 'mechanical' and do 'not threaten to overwhelm the litigation with individual factual determinations' "); In re U.S. Foodservice Inc. Pricing Litig., No. 06 Civ. 1657, 2011 WL 6013551, at *16 (D. Conn. Nov. 29, 2011), aff'd, 729 F.3d 108 (2d Cir. 2013) (citation omitted) ("It is a rare case where computation of each individual's damages is so complex, fact-specific, and difficult that the burden on the court is intolerable.").
See, e.g. Butler v. Sears, Roebuck and Co., 727 F.3d 796, 801 (7th Cir. 2013) (noting that "It would drive a stake through the heart of the class action device, in cases in which damages were sought rather than an injunction or a declaratory judgment, to require that every member of the class have identical damages. If the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification. Otherwise defendants would be able to escape liability for tortious harms of enormous aggregate magnitude but so widely distributed as not to be remediable in individual suits."). --------
ii. Superiority
For certification to be proper under Rule 23(b)(3), a class action also must be the most "fair and efficient" method of resolving those claims at issue. See Fed. R. Civ. P. 23(b)(3). In applying this requirement, courts must consider four nonexclusive factors: (1) the interest of the class members in maintaining separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. See Nassau Cnty., 461 F.3d at 230.
As Plaintiffs note, 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 Pls. Mem. at 19; citing Damassia v. Duane Reade, Inc., 250 F.R.D. at 164 (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, Plaintiffs' Rule 23 claim for parallel state overtime compensation 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...".).
Bloomberg argues that Plaintiffs cannot show that joinder of any allegedly aggrieved parties that would want to participate in this litigation would be impractical given that just one person out of 66 potential FLSA plaintiffs has sought to join the case in response to Plaintiffs' FLSA notice. See Bloomberg Opp'n at 20. Defendant's argument, however, effectively contests numerosity under Rule 23(a)(1) because of a low FLSA opt-in rate. This objection is clearly without merit when Bloomberg has presented no evidence that the purported class of 125 GTSRs, as determined based on Bloomberg's own data, is inaccurate and that the class is smaller. See Consol. Rail Corp., 47 F.3d at 483 (numerosity presumed when class consists of forty or more plaintiffs).
Class certification will result in the resolution of all NYLL claims. These claims are central to Plaintiffs' allegations and would have to be tried in each proposed Class member's case anyway, were the action to proceed on an individual basis. The promise of this resolution satisfies the standard that class certification will materially advance the disposition of this litigation as a whole. See Duane Reade II, 2013 WL at *16 (citing Benner v. Becton Dickinson & Co., 214 F.R.D. 157, 169 (S.D.N.Y. 2003).
Furthermore, this Court has great flexibility in addressing developments as to individual issues that may arise as the class proceeding progresses. See In re Visa Check, 280 F.3d at 141 ("There are a number of management tools available to a district court to address any individualized damages issues that might arise in a class action, including: (1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class."), superseded by statute on other grounds as stated in Attenborough v. Constr. & Gen. Bldg. Laborers' Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006). Class certification will unquestionably increase efficiency and materially advance this litigation, and the options identified herein enable the Court to maintain manageability of the Class. By comparison, the alternative - denying Class certification and forcing each plaintiff to proceed individually - offers neither efficiency nor manageability. Accordingly, Plaintiffs have demonstrated, as required by 23(b)(3), the superiority of trying this case as a class action.
CONCLUSION
Plaintiffs' motion for class certification of common issues under NYLL is GRANTED. The law firm of Getman Sweeney, PLLC is appointed counsel for the Class.
The Clerk of Court is directed to close the motion at ECF No. 49. Dated: March 17, 2014
New York, New York
SO ORDERED:
/s/_________
GEORGE B. DANIELS
United States District Judge