Case 1:07-cv-01126-KAM-RER Document 1 Filed 03/16/07 Page 1 of 13

Lloyd Ambinder (LA 4122) Barnes, Iaccarino, Virginia, Ambinder & Shepherd PLLC Ill Broadway, Suite 1403 New York, New York 10006 Tel: (212) 943-9080 Fax: (212) 943-9082

UNITED STATES DISTRiCT COURT

EASTERN DISTRiCT OF NEW YORK

ARMANDO GUZMAN and JOSE GARCIA
individually and on behalf of all other person~ Index:

similarly situated who were employed by VLM,

INC. d/b/a/ RELIABLE BAKERY,

CLASS ACTION

-against-

.... - Plaintiffs, COMPLAINT

07_ 1 1 2 6 :3LEESON. ~ ~ VLM, INC. d/b/a/ RELIABLE BAKERY, and
JOSEPH VITACCO,

_J ,_, =vc (" _ _,

Defendants.

Plaintiffs Armando Guzman and Jose Garcia, on behalf of the putative class, by their

attorneys, Barnes, Iaccarino, Virginia, Ambinder & Shepherd PLLC, allege as follows:

NATURE OF ACTION

I. This action is brought pursuant to the Fair Labor Standards Act (hereinafter

referred to as "FLSA"), 29 U.S. C.§§ 207 and 216(b) and New York Labor Law§ 652, and N.Y.

CODES RULES AND REGULATIONS TITLE 12 §§142-2.2, and NYCRR 142-2.4 to recover

unpaid overtime compensation owed to Plaintiffs and all similarly situated persons who are

presently or were formerly employed by Defendant VLM, Inc., d/b/a Reliable Bakery ("VLM")

and Joseph Vitacco ("Vitacco") (collectively the "Defendants").

2. Beginning in approximately 200 I and upon information and belief, to date,

Defendants have engaged in a policy and practice of requiring their employees to regularly work

over I0 hours per day, without providing overtime compensation as required by applicable

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federal and state law. 3. Under the direction of VLM, Inc.'s corporate directors, Joseph Vitacco,
Defendants instituted this practice of depriving their employees of the basic compensation for work performed in excess of 40 hours per week as mandated by federal and state law.
4. The named Plaintiffs have initiated this action seeking for themselves, and on behalf of ail similarly situated employees compensation, including overtime compensation, they were deprived of, plus interest, damages, attorneys' fees, and costs.
JURISDICTION 5. Jurisdiction of this Court is invoked pursuant to FLSA, 29 U.S.C. §216(b), and 28 U.S.C. §1331 and 1337. This court also has supplemental jurisdiction under 28 U.S.C. § 1367 of the claims brought under the New York Labor Law. 6. The statute of limitations under the FLSA for willful violations is three (3) years. See 29 U.S.C. §255(a). 7. The statute oflimitations under the New York Labor Law is six (6) years. See New York Labor Law § 198(3).
VENUE 8. Venue for this action in the Eastern District of New York under 28 U.S.C. §139(b) is appropriate because Defendant VLM, Inc. maintain its principal place of business in the Eastern District of New York.
THE PARTIES 9. Plaintiffs, are individuals residing in the State of New York who performed labor
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forVLM. 10. Upon information and belief, Defendant VLM, Inc. is a corporation incorporated
under the laws of the State of New York, with its principal place of business at 8118 18th Avenue, Brooklyn, New York 11214, engaged in the baking business.
11. Upon information and belief, Joseph Vitacco ("Vitacco") is a resident of New York, at 34 Summit Road, Staten Island, New York 10307 and is, and at all relevant times was an officer, director and/or owner of Defendant VLM, which is a closely held corporation, as defined by the Business Corporations Law.
CLASS ALLEGATIONS 12. This action is properly maintainable as a class action pursuant to Article 9 of the New York Civil Practice Law and Rules and under the Fair Labor Standards Act, 29 U.S.C. § 216(b). 13. This action is brought on behalf of Plaintiffs and a class consisting of each and every other person who performed work for Defendant VLM other than office and executive personnel. 14. The putative class is so numerous that joinder of all members is impracticable. The size of the putative class is believed to be in excess of 100 employees. In addition, the names of all potential members of the putative class are not known. 15. The questions of law and fact common to the putative class predominate over any questions affecting only individual members. 16. The claims of Plaintiffs are typical of the claims of the putative class. 17. Plaintiffs and their counsel will fairly and adequately protect the interests of the putative class.
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18. A class action is superior to other available methods for the fair and efficient adjudication of this controversy.
FACTS 19. Upon information and belief, beginning in or about 2001, Defendants VLM and Vitacco employed Plaintiffs and other members of the putative class to perform work as bakers and in other job functions related to VLM's commercial bakery operation. 20. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class were typically required to start work between 5:30 and 6:00 a.m. each day. 21. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class were required to typically ceased working between 4:30 and 6:00 p.m. each day. 22. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class were typically required to work six or seven days per week. 23. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class typically received a ten to fifteen minute break per shift. 24. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class were paid between $5.62 and $11.25 per hour of work for the first eight hours of each day of work. 25. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class did not receive any wages for the time in which they worked after the first forty hours in any given week.
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26. Upon information and belief, while working for VLM, Plaintiffs and the members of the putative class did not receive any overtime wages, at the rate of one and one half times the regular rate of pay, for the time in which they worked after the first forty hours in any given week.

27. Upon information and belief, Vitacco was the president of Defendant VLM, and (i) has the power to hire and fire employees for that entity; (ii) supervised and controlled

employee work schedules or conditions of employment for VLM; (iii) determined the rate and method ofpayment for VLM's employees; and (iv) maintained employment records for VLM.

28. Upon information and belief, Defendant Vitacco was the principal and sole owner of VLM, dominated the day-to-day operating decisions of VLM, and made major personnel decisions for VLM.

29. Upon information and belief, Vitacco had complete control of the alleged activities of VLM which give rise to the claims brought herein.

30. hereof.

FIRST CAUSE OF ACTION AGAINST DEFENDANTS VLM AND VITACCO--
FLSA OVERTIME COMPENSATION
Plaintiffs repeat and reallege the allegations set forth in paragraphs I through 29

31. Pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C § 207, "no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a

rate not less than one and one-half times the regular rate at which he is employed."

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32. Further, pursuant to 29 U.S.C. § 203(d), an "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization."
33. Plaintiffs and other members of the putative class are employees, within the meaning contemplated in Fair Labor Standards Act ("FLSA"), 29 U.S.C. §203.
34. Defendant VLM is an employer, within the meaning contemplated in the FLSA, 29 U.S.C. § 203.
35. Pursuant to 29 U.S.C. § 203(d) and the cases interpreting the same, Vitacco is defined as an "employer" for the purpose of FLSA and, consequently, is liable for violations of FLSA.
36. Upon information and belief, Defendants VLM and Vitacco failed to pay Plaintiffs and other members of the putative class any wages for the time in which they worked after the first forty hours in any given week.
37. Upon information and belief, Defendants VLM and Vitacco failed to pay Plaintiffs and other members of the putative class any overtime wages, at the rate of one and one half times the regular rate of pay, for the time in which they worked after the first forty hours in any given week.
38. The failure of Defendants VLM and Vitacco to pay Plaintiffs and other members of the putative class their rightfully owed wages and overtime compensation was willful.
39. By the foregoing reasons, Defendants VLM and Vitacco are liable to Plaintiffs and members of the putative class in an amount to be determined at trial, plus liquidated damages in the amount equal to the amount of unpaid wages, interest, attorneys' fees and costs.
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40. hereof.

SECOND CAUSE OF ACTION AGAINST DEFENDANTS VLM AND VITACCO--
FAILURE TO PAY WAGES
Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 39

41. Pursuant to the Article Six of the New York Labor Law, workers, such as the Plaintiffs and the members of the putative class are protected from wage underpayments and improper employment practices.

42. Pursuant to Labor Law§ 190, the term "employee" means "any person employed for hire by an employer in any employment."

43. As persons employed for hire by Defendants, Plaintiffs and the members of the putative class are "employees," as understood in Labor Law § 190.
44. Pursuant to Labor Law § 190, the term "employer" includes any "person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service."
45. As an entity that hired the Plaintiffs and members of the putative class, VLM is an employer.
46. Upon information and belief, pursuant to Labor Law § 190 and the cases interpreting same, Vitacco is an employer under Labor Law § 190.
47. Plaintiffs' agreed upon wage rate and/or overtime compensation rate were within the meaning ofNew York Labor Law§§ 190, 191.
48. Pursuant to Labor Law § 191 and the cases interpreting same, workers such as Plaintiffs and the putative class members, are entitled to be paid all their weekly wages "not later than seven calendar days after the end of the week in which the wages are earned."

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49. In failing to pay Plaintiffs and other members of the putative class any wages and overtime payments for time worked after forty hours in one week, Defendants violated Labor Law § I9I, by failing to pay Plaintiffs and the putative class member all of their wages earned within the week such wages were due.
50. Pursuant to Labor Law§ 193, "No employer shall make any deduction from the wages of an employee," such as Plaintiffs and the putative class members, that is not otherwise authorized by law or by the employee.
51. By withholding wages and overtime payments for time worked after forty hours in one week from Plaintiffs and the putative class, pursuant to Labor law § 193 and the cases interpreting same, Defendants made unlawful deductions in wages owed to Plaintiffs and the members of the putative class.
52. Upon information and belief, Defendants failure to pay the Plaintiffs and the putative class members wages and overtime payments for time worked after forty hours in one week was willful.
53. By the foregoing reasons, Defendants VLM and Vitacco have violated Labor Law § 198 and are liable to Plaintiff and other members of the putative class in an amount to be determined at trial, interest, attorneys' fees and costs, pursuant to the above cited Labor Law sections, and to the extent such putative class members opt out of the putative class, liquidated damages in the amount equal to 25% of the unpaid wages.
THIRD CAUSE OF ACTION, AGAINST DEFENDANTS VLM AND VITACCO-NEW YORK OVERTIME COMPENSATION LAW 54. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 53 hereof.
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55. 12 NYCRR § 142-2.2 requires that "[a]n employer shall pay an employee for overtime at a wage rate of one and one-halftimes the employee's regular rate."
56. New York Labor Law Section 663, provides that "[i]fany employee is paid by his employer less than the wage to which he is entitled under the provisions of this article, he may recover in a civil action the amount of any such underpayments, together with costs and such reasonable attorney's fees."
57. Upon information and belief, Plaintiffs and the members of the putative class worked more than forty hours a week while working for VLM and Vitacco.
58. Upon information and belief, Plaintiff received no wages or overtime compensation for the hours worked after the first forty hours of work in a week.
59. Consequently, by failing to pay to Plaintiffs and the other member of the putative class wages and overtime compensation for work they performed after the first forty hours worked in a week, Defendants VLM and Vitacco violated New York Labor Law§ 663 and 12 NYCRR § 142-2.2
60. Defendants' failure to pay wages and overtime compensation for work they performed after the first forty hours worked in a week to Plaintiffs and the other member of the putative class was willful.
61. By the foregoing reasons, Defendants VLM and Vitacco have violated Labor Law § 663 and 12 NYCRR § 142-2.2 and are liable to Plaintiff and other members of the putative class in an amount to be determined at trial, interest, attorneys' fees and costs, pursuant to the above cited Labor Law sections, and to the extent such putative class members opt out of the putative class, liquidated damages in the amount equal to 25% of the unpaid wages.
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FOURTH CAUSE OF ACTION, AGAINST DEFENDANTS VLM AND VITACCO--
NEW YORK SPREAD OF HOURS LAW

62. hereof.

Plaintiffs repeat and reallege the allegations set forth in paragraphs I through 6I

63. 12 NYCRR § I42-2.4 requires that "(a]n employee shall receive one hour's pay at

the basic minimum hourly wage rate, in addition to the minimum wage required in this Part for

any day in which ... the spread of hours exceeds IO hours [in a day]."

64. Upon information and belief, Defendants VLM and Vitacco required that

Plaintiffs and the members of the putative class typically work more than ten hours in a day.

65. Upon information and belief, Defendants VLM and Vitacco did not pay Plaintiffs

and the putative class members an additional hour's pay when Plaintiffs and the members of the putative class worked more than I 0 hours in a day.

66. Consequently, by failing to pay to Plaintiffs and the other member of the putative

class an additional hour's pay when Plaintiffs and the members of the putative class worked

more than 10 hours in a day, Defendants VLM and Vitacco violated I2 NYCRR § I42-2.4.

67. Defendants' failure to pay spread of hours compensation for work performed by

Plaintiffs and the members of the putative class after I0 hours in day was willful.

68. By the foregoing reasons, Defendants VLM and Vitacco have violated I2

NYCRR § I42-2.4 and are liable to Plaintiff and other members of the putative class in an

amount to be determined at trial, interest, attorneys' fees and costs, pursuant to the above cited

Labor Law sections, and to the extent such putative class members opt out of the putative class,

liquidated damages in the amount equal to 25% of the unpaid wages.

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69. hereof.

FIFTH CAUSE OF ACTION AGAINST DEFENDANT VITACCO--
BCL PERSONAL LIABILITY
Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 68

70. Defendant VLM is a closely held corporations within the meaning of Business Corporations Law §630.

71. Plaintiffs and other members of the putative class are laborers, within the meaning contemplated in Business Corporations Law § 630, who performed services for Defendant VLM.

Plaintiffs and other member of the putative class are entitled, by law, to receive wages for the work they performed. They have not, however, received wages and overtime payments for the time worked after the first forty hours of work in any week. Therefore, Defendant VLM owes a

debt to Plaintiffs and other member of the putative class for wages earned. 72. Plaintiffs, pursuant to the requirements set forth in Business Corporations Law
§630, served notice upon Defendant Vitacco that they intended to hold the applicable shareholders, liable for the unpaid wages.

73. Defendant Vitacco violated Business Corporations Law §630 by failing to pay the unpaid wages owed to Plaintiffs and other members of the putative class, pursuant to his responsibility as one of the ten largest shareholders of a closely held corporation.
74. Upon information and belief, Defendant Vitacco's failure to pay the wages owed to Plaintiffs and other members of the putative class was willful.
75. By the foregoing reasons, pursuant to the above cited Business Corporations Law Defendant Vitacco is liable to Plaintiff and other members of the putative class in an amount to be determined at trial, plus interest, attorney's fees and costs, and liquidated damages where

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provided by law. WHEREFORE, Plaintiffs and the members of the putative class demand judgment: (I) on their first cause of action, against Defendants VLM and Vitacco in an amount to be
determined at trial, plus liquidated damages in the amount equal to the amount of unpaid wages, interest, attorneys' fees and costs;
(2) on their second cause of action, against Defendants VLM and Vitacco in an amount to be determined at trial, interest, attorneys' fees and costs, pursuant to the above cited Labor Law sections, and to the extent such putative class members opt out of the putative class, liquidated damages in the amount equal to 25% of the unpaid wages;
(3) on their third cause of action, against Defendants VLM and Vitacco, in an amount to be determined at trial, interest, attorneys' fees and costs, pursuant to the above cited Labor Law sections, and to the extent such putative class members opt out of the putative class, liquidated damages in the amount equal to 25% of the unpaid wages;
(4) on their fourth cause of action, against Defendants VLM and Vitacco, in an amount to be determined at trial, interest, attorneys' fees and costs, pursuant to the above cited Labor Law sections, and to the extent such putative class members opt out of the putative class, liquidated damages in the amount equal to 25% of the unpaid wages;
(5) on their fifth cause of action, against Defendant Vitacco, in an amount to be determined at trial, plus interest, attorney's fees and costs, and liquidated damages where provided by law;
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Case 1:07-cv-01126-KAM-RER Document 1 Filed 03/16/07 Page 13 of 13 (6) such other and further relief as the Court may deem just and proper. Dated: New York, New York 14th day of March, 2007
By:_ ___,c_ .._______
Lloyd R. Amlbmder Attorneysfor Plaintiffs
and the Putative Class Trinity Centre 111 Broadway, 14th Floor New York, New York 10006 (212) 943-9080
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 Case 1:07-cv-01126-JG-RER Document 25 Filed 10/11/2007 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x ARMANDO GUZMAN and JOSE GARCIA, individually and on behalf of all other persons similarly situated who were employed by VLM, INC. d/b/a RELIABLE BAKERY,

FOR ONLINE PUBLICATION ONLY

Plaintiffs,
-against07-CV-1126 VLM, INC. d/b/a RELIABLE BAKERY, and JOSEPH VITACCO,

MEMORANDUM AND ORDER
(JG) (RER)

Defendants. -----------------------------------------------------x A P P E A R A N C E S :

BARNES, IACCARINO, VIRGINIA, AMBINDER & SHEPHERD PLLC

111 Broadway, Suite 1403

New

York, NY 10006

By: Lloyd Ambinder

Attorneys

for Plaintiffs

REISMAN, PEIREZ & REISMAN, LLP

1305 Franklin Ave, Suite 270

Garden City, NY 11530

By: LaDonna Marie Lusher

Attorneys

for Plaintiffs

MILMAN LABUDA LAW GROUP

3000 Marcus Avenue, Suite 3W3

Lake Success, NY 11042

By: Joseph M. Labuda

Attorneys

for Defendant VLM, Inc. d/b/a Reliable Bakery

GARY JOHN DMOCH & ASSOCIATES

171-22

Northern Boulevard

Flushing,

NY 11358

By: Gary J. Dmoch

Attorneys for Defendant Joseph Vitacco

Case 1:07-cv-01126-JG-RER Document 25 Filed 10/11/2007 Page 2 of 18

JOHN GLEESON, United States District Judge: Plaintiffs Armando Guzman and Jose Garcia, former employees of
defendant VLM, Inc. (“VLM”), a bakery, bring this putative class action alleging that VLM and its president, Joseph Vitacco, denied them and other bakery employees overtime compensation in violation of the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and several New York laws, N.Y. Lab. Law §§ 193, 663; N.Y. Bus. Corp. Law § 630; see also N.Y. Comp. Codes R. & Regs. tit. 12 §§ 142-2.2, 142-2.4. Before me now is the question whether plaintiffs are entitled to court-supervised notification to the putative class members under 29 U.S.C. § 216(b), and if so, whether the plaintiffs’ proposed notice is appropriate. For the reasons stated below, I hold that the plaintiffs are entitled to notify potential class members, but order several changes to their proposed notice.
BACKGROUND Armando Guzman and Jose Garcia are both former employees of VLM, which does business as “Reliable Bakery.” VLM’s principal place of business is a bakery at 8118 18th Avenue in Brooklyn. Compl. ¶ 11; Vitacco Answer ¶ 6. Guzman and Garcia allege that they regularly worked in excess of 40 hours per week without receiving time-and-a-half pay, and both claim that they have worked with many other bakery employees and have had conversations with multiple other bakery employees who also worked in excess of 40 hours per week without receiving time-and-a-half pay.1 Guzman Aff., Aug. 14, 2007, ¶¶ 6-9, 11; Guzman Aff., Sept. 13, 2007, ¶¶ 4-5 (claiming

1

They also allege that they and other employees were denied “spread of hours”

compensation for hours worked above 10 in a single day, in violation of New York law, e.g., Compl. ¶¶ 62-

68, but these state law claims are not relevant to whether the plaintiffs are entitled to notification under 29

U.S.C. § 216(b).

2

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to have discussed matter with 19 named employees); Garcia Aff. ¶¶ 4-7 (claiming to have discussed matter with 26 named employees).2 They claim that most of these employees performed tasks similar to those performed by the plaintiffs. Guzman Aff., Sept. 13, 2007, ¶ 5; Garcia Aff. ¶ 5. Guzman also affirms that he asked Vitacco to be paid more money, and Vitacco replied that he “was paying the rest of the workers the same way” as Guzman and thus could not pay Guzman more without paying other workers more as well. Guzman Aff., Sept. 13, 2007, ¶ 6. In addition to their affidavits, Guzman and Garcia both submit pay stubs, none of which indicates an hourly rate of pay or the hours worked. Pl.’s Mem. Ex. 1; Ambinder Decl. Ex. A; Ambinder Decl. Ex. B.
Additionally, two other putative class members, who are bakers, have submitted affidavits claiming that they were not paid overtime, and also that they worked with numerous other bakers. Rios Aff. ¶¶ 4, 5; Orellana Aff. ¶¶ 4, 6. Nelson Rios alleges that other bakery employees have told him they did not receive overtime payment, and that he has spoken to 20 named bakery employees regarding the matter, most of whom performed work similar to his. Rios Aff. ¶ 8.3 Jhon Orellana affirms that he knows his coworkers were not paid overtime compensation from frequent discussions with them, but he does not provide any names. Orellana Aff. ¶ 10. Orellana also provides several pay stubs that do not show his hours worked or hourly rate. Ambinder Decl. Ex C. Guzman also alleges that the “vast majority” of bakery employees were from South America or Central America, and that he believes many might be fearful to bring this

2

Guzman provides only two last names, identifying the rest by first names and

nationalities, except for one identified only by a nickname and nationality and one identified only by a

nickname. Guzman Aff., Sept. 13, 2007, ¶ 8. Similarly, Garcia identifies five by first and last name,

providing first names and nationalities for all the rest except for the same two nicknamed individuals cited

by Guzman. Garcia Aff. ¶ 8.

3

Rios identifies all but three by first name and nationality. Rios Aff. ¶ 8.

3

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case on their own. Guzman Aff., Aug. 14, 2007, ¶ 14; see also Guzman Aff., Sept. 13, 2007, ¶ 5 (alleging significant majority of named individuals to be of Latin American national origin); Garcia Aff. ¶ 5 (same); Rios Aff. ¶ 8 (same). Plaintiffs seek to send notice to the putative class of current and former employees of VLM from the past six years.4
VLM and Vitacco both deny that they have failed to pay VLM employees overtime. They submit affidavits from 18 individuals, all of whom claim they were told when they began work that they would be paid minimum wage on an hourly basis with time and a half for overtime; that they “believe” they have been paid for all of the time they worked and are not owed any money; that they have “always been paid properly”; and that they have spoken with “dozens” of other employees who have also been paid fully. Viscarra Aff ¶¶ 3, 5-7; Carrasco Aff. ¶¶ 3, 5-7; Cruz Aff. ¶¶ 3, 5-7; Tart ¶¶ 3, 5-7; Iqbal Aff. ¶¶ 3, 5-7; Jesus Martinez Aff. ¶¶ 3, 5-7; Lopez Aff. ¶¶ 3, 5-7; Julio Martinez Aff. ¶¶ 3, 5-7; Hernandez Aff. ¶¶ 3, 5-7; Vitale Aff. ¶¶ 3, 5-7; Baksh Aff. ¶¶ 3, 5-7; T. Husain Aff. ¶¶ 3, 5-7; M. Husain Aff. ¶¶ 3, 5-7; Plastina Aff. ¶¶ 3, 5-7; Flores Aff. ¶¶ 3, 5-7; Huerta Aff. ¶¶ 3, 5-7; Muhammad Aff. ¶¶ 3, 5-7; Marulanda Aff. ¶¶ 3, 5-7. None of them submits any statement or other evidence regarding his or her hourly wage or amount paid, and each of them alleges routinely working at least 51 hours per week.

4

The proposed notice defines the class as:

The plaintiffs and all current and former employees of VLM, INC. d/b/a RELIABLE BAKERY (“VLM”) who worked as bakers, food handlers, storage handlers, lading dock employees and in other job functions related to defendants’ bakery operations VLM’s [sic] from 2001 through the present. Corporate officers, shareholders, directors, administrative employees [sic] will not be part of the defined class (the “Class”).

Ambinder Decl. Ex. F at 1.

4

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The defendants also submit a report summarizing a Department of Labor (“DOL”) investigation into VLM’s employment practices covering the time period from March 2004 to March 2006. The report lists VLM’s FLSA compliance status as compliant with no violations found. Newberger Aff. Ex. A 4. However, the report notes that VLM was in fact in violation of the FLSA’s recordkeeping provisions, as “the firm does not keep a record of the hours worked by its non-exempt hourly employees.” Id. at 7. It notes VLM’s compliance status with FLSA’s overtime provisions as “no violation uncovered.” Id. at 6.
DISCUSSION A. Standard for Granting Notice
Section 19(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 219(b), has been interpreted to create an “opt-in” mechanism by which plaintiffs may join a collective action against an employer for FLSA violations by affirmatively notifying the court of their intention to participate in the lawsuit. E.g., DiFilippo v. Barclays Capital, Inc., No. 05-4990, 2006 WL 1716860, at *4-*5 (S.D.N.Y. 2006).5 District courts have discretion to facilitate notice to potential class members. Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989); see also Braunstein v. Eastern Photographic Labs., 600 F.2d 335, 336 (2d Cir. 1978) (per curiam) (such discretion “facilitates the

5

The pertinent language in the FLSA reads:

An action to recover [liability under the FLSA] may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 219(b).

5

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broad remedial purpose of the Act, which should be given a liberal construction, as well

as the interest of the courts in avoiding multiplicity of suits”).

To

merit an order authorizing notice, a plaintiff must show that the

potential class members are “similarly situated,” Iglesias-Mendoza v. La Belle Farm,

Inc., 239 F.R.D. 363, 367 (S.D.N.Y 2007), which requires only a “‘modest factual

showing that [the plaintiff] and potential plaintiffs are victims of a common policy or

plan that violated the law,’” id. at 367-68 (quoting Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)).6 If a plaintiff meets the “‘fairly lenient’”

requirements of this “‘notice stage,’” the class is certified, often conditionally and subject

to decertification if the other members are found not to be similarly situated after

discovery. Iglesias-Mendoza, 239 F.R.D. at 267 (quoting Torres v. Gristede’s Operating

Corp., No. 04-3316, 2006 WL 2819730, at *7 (S.D.N.Y. Sept. 29, 2006); other citations

omitted). Due to the conditional nature of the certification contemplated at the notice

stage, the “burden on plaintiffs is not a stringent one, and the court need only reach a

preliminary determination that potential plaintiffs are ‘similarly situated.’” Hoffmann v.

Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (citing Jackson v. New York

Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995)).

While the Second Circuit has not prescribed a particular analysis for

determining if plaintiffs have made the requisite showing that the putative class is

6

As court-facilitated notice is not a Rule 23 class action, “plaintiffs need not demonstrate

numerosity, typicality, commonality, and adequacy of representation . . . .” DiFilippo v. Barclays Capital,

Inc., No. 05-4990, 2006 WL 1716860, at *5 (S.D.N.Y. 2006). Accordingly, at this stage I need not address

defendants’ claim that Guzman is an inappropriate class representative due to the moral turpitude he

allegedly displayed in damaging VLM property or resolve the factual controversy regarding Guzman’s

conduct. See, e.g., Labuda Aff. ¶ 8;Vitacco Aff. ¶¶ 8-13; Ambinder Aff. ¶¶ 20-23; Guzman Aff., Sept 13,

2007, ¶¶ 9-11. The plaintiffs have not yet moved to certify a class under Rule 23 in order to pursue their

state law claims.

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similarly situated, Torres, 2006 WL 2819730, at *9, district courts in this circuit have looked principally to whether there are (1) “disparate factual and employment settings of the individual plaintiffs;” (2) “defenses available to defendants which appear to be individual to each plaintiff;” and (3) “fairness and procedural considerations” counseling for or against notification to the class. Id. at *9 (citation omitted); accord Jacobs v. New York Foundling Hosp., 483 F. Supp. 2d 251, 265 (E.D.N.Y. 2007); Ayers v. SGS Control Servs., Inc., No. 03-9077, 2007 WL 646326, at *5 (S.D.N.Y. Feb. 27, 2007); see also Rodolico v. Unisys Corp., 199 F.R.D. 468, 482 (E.D.N.Y. 2001) (applying same three factors plus one ADEA-specific factor in case involving ADEA collective action under § 216(b)). B. Entitlement to Notice
In light of the foregoing standards, I have no difficulty concluding the plaintiffs here are entitled to court-facilitated notice to the putative class. The plaintiffs have submitted the affidavits of four bakery employees affirming a companywide policy of failure to pay overtime wages and alleging that many other employees who performed similar duties complained of the exact same policy, and have supported their affidavits with suggestive pay stubs for three of them. Defendants’ proffered affidavits corroborate that many bakery employees work in excess of 40 hours per week, and do not provide any supporting documentation to substantiate the claim that overtime wages were paid besides the employees’ beliefs that they were paid “properly.” The DOL’s investigation report does not rebut the plaintiffs’ case. Its documentation of VLM’s failure to keep records regarding the hours its employees worked is consistent with the plaintiff’s allegations, and the DOL’s failure to uncover any overtime violations is hardly dispositive in light of this recordkeeping violation.
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The three-factor approach outlined in Torres leads to the same conclusion. It appears that the factual and employment settings of the putative plaintiffs in this case are quite similar. There is no dispute that a large number of bakery employees work over 40 hours a week. The plaintiffs’ allegations that many of the other bakery employees perform work similar to theirs has not been rebutted or denied by any affidavits proffered by the defendant. Similarly, Guzman’s assertion that the vast majority of the bakery employees originate from countries in Latin America has not been rebutted. In all, there appear at this early stage to be significant factual similarities, and similarities in employment settings, between members of the putative class. Although the defendants have asserted the plaintiff-specific defense that Guzman and Garcia brought this action in retaliation for their discharge for theft and “improper conduct,” VLM Answer ¶ 52, this defense will not likely play a significant role in adjudicating the question whether the plaintiffs were denied overtime compensation for years before their discharge. Finally, concerns of fairness favor giving notice, in light of the “broad remedial purpose” of the FLSA, Braunstein, 600 F.2d at 336, and Guzman’s asserted belief that many bakery employees would be afraid to sue VLM on their own. See also Frank v. Capital Cities Commc’ns, Inc., 88 F.R.D. 674, 676 (S.D.N.Y. 1981) (“[T]he experiences of other employees may well be probative of the existence vel non of a discriminatory policy, thereby affecting the merits of the plaintiffs’ own claims . . . .”).
Defendants’ contention that the plaintiffs’ claims are merely “conclusory,” Def.’s Mem. 5, tries to hold the plaintiffs to too high a standard at this phase of the litigation. It is hardly realistic, or consistent with the lenient standards of the notice phase of FLSA litigation, to expect plaintiffs to have any more specific knowledge of how much their coworkers are paid than what the plaintiffs have alleged. If the allegations of
8

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conversations with named individuals in which those individuals claimed not to have been paid overtime and the allegation of a statement by Vitacco that all bakery employees are paid in a manner similar to Guzman are merely conclusory, even when supported by pay stubs not showing an hourly wage rate, it is difficult to see what quantum of evidence would suffice to make the requisite “modest factual showing.” Iglesias-Mendoza, 239 F.R.D. at 367 (quotation omitted); cf. H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (rejecting notice where plaintiffs alleged only that they “believed” other employees were subject to FLSA violations and did not allege conversations with named employees giving rise to this belief).
Defendants are also wrong to claim that the plaintiffs have not “articulated a common practice or policy to which they and similarly situated potential opt-ins were subject . . . .” Def.’s Mem. 6. Plaintiffs have claimed a uniform practice of denying bakery employees overtime pay and requiring them to work in excess of 40 hours a week, and that Vitacco cited the very uniformity of the practice as a reason to avoid paying Guzman overtime pay. Cf. Marsh v. Butler County School System, 242 F. Supp. 2d 1086, 1094 & n.5 (M.D. Ala. 2003) (finding no pattern or practice from violations occurring in different job sites when plaintiffs did not allege common policy of “refusing to pay overtime to any employee”). I take no view on the merits of the plaintiffs’ claims, see, e.g., Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 633 (S.D.N.Y. 2007), but what they allege is certainly a common practice or policy. Further, the DOL report indicates a common policy of failure to keep records, which is consistent with the affidavits and pay stubs provided by the plaintiffs.
I am unpersuaded by defendants’ examples of decisions refusing to facilitate notice. Unlike in Haynes v. Singer Co., Inc., the evidence of FLSA violations
9

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here appears in affidavits of employees, not in mere claims made by counsel. Cf. 696

F.2d 884, 887 (11th Cir. 1983) (“The judge had before him only counsel’s unsupported

assertions that FLSA violations were widespread and that additional plaintiffs would

come from other stores.”). Unlike in Pfohl v. Farmers Insurance Group, here the

defendants have submitted no evidence to suggest that the duties performed by putative

class members varied widely and the plaintiffs have alleged similarity in the duties

performed by members of the putative class. Cf. No. 03-3080, 2004 WL 554834, at *9

(C.D. Cal. Mar. 1, 2004) (describing evidence showing difference between job duties of

“lead” claims adjusters, “office adjusters,” and “field adjusters,” and noting that plaintiffs

did not allege similarity of tasks performed).

Accordingly

, I grant the plaintiffs court-supervised notification of class

members pursuant to 29 U.S.C § 216(b).

C. Content and Form of Notice

1. Notice Period

Defendants object to plaintiffs’ proposed notice on the grounds that it

mentions the pending state law claims in addition to the FLSA claim and that plaintiffs

seek the notice to cover the past six years. The FLSA has a three-year statute of

limitations for willful violations, and a two-year statute of limitations for non-willful

violations. 29 U.S.C. § 255(a). As the plaintiffs allege willfulness, Compl. ¶ 38, the

applicable limitations period for the purposes of notice under the FLSA is three years.

See Iglesias-Mendoza, 239 F.R.D. at 369 (“Where wilfulness is disputed, the court

applies the three-year statute of limitations for purposes of certifying a representative

action.” (citing Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 240

(N.D.N.Y. 2002))). The New York Labor Law (“NYLL”) has a six-year statute of

10

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limitations, N.Y. Lab. Law § 198(3). Because plaintiffs allege that defendants’ conduct also violated this state law, they seek to avail themselves of its longer limitations period, Pl.’s Reply 10.
The NYLL has no equivalent to § 216(b). Foster v. Food Emporium, No. 99-3860, 2000 WL 1737858, at *3 (S.D.N.Y. Apr. 26, 2000) (citing N.Y. Lab. Law § 198(1); Carter v. Frito-Lay, Inc., 425 N.Y.S.2d 115 (N.Y. App. Div. 1980), aff’d, 419 N.E.2d 1079 (1981)). The defendants argue that a class action is unavailable to enforce the NYLL, rendering the named plaintiffs unable to assert the NYLL claims of the other bakery employees. Def.’s Mem. 11. Under New York law, a plaintiff may not seek statutory liquidated or punitive languages on behalf of a class unless the statute explicitly authorizes class actions. N.Y.C.P.L.R. 901(b). As the NYLL includes liquidated damages and no explicit authorization for enforcement through class actions, N.Y. Lab. Law § 198(1-a), plaintiffs cannot seek liquidated damages through a class action.
Plaintiffs cannot maintain a class action by seeking only actual damages, argue the defendants, because forswearing the absent class members’ rights to liquidated damages would constitute inadequate representation, barring class certification. Def.’s Mem. 11 n.3 (citing Woods v. Champion Courier, Inc., N.Y.L.J. Oct. 9, 1988, at 25, col. 1 (N.Y. Sup. Ct. 1998)). This argument, however, has been rejected by the weight of New York authority, e.g., Jacobs v. Macy’s East, 792 N.Y.S.2d 574, 576 (App. Div. 2005); Pesantez v. Boyle Envt’l Servs., Inc., 673 N.Y.S.2d 659, 660 (App. Div. 1998); Ridge Meadows Homeowners’ Ass’n, Inc., v. Tara Development Co., Inc., 665 N.Y.S.2d 361, 361 (App. Div. 1997), under which plaintiffs can maintain a class action for actual damages as long as absent class members have an opportunity to opt out and pursue statutory damages. See Pesantez, 673 N.Y.S.2d at 660 (“To the extent certain individuals
11

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may wish to pursue punitive claims pursuant to Labor Law § 198(1-a), they may opt out of the class action . . . .” (citations omitted)); see also, e.g., Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 94-95 (S.D.N.Y. 2001) (recognizing that New York law permits class representatives to waive statutory damage claims).
There is thus no obstacle to certifying a Rule 23 class to pursue claims under New York state law. The two decisions defendants cite for the proposition that FLSA claims cannot be combined with NYLL claims both incorrectly take New York law to foreclose the possibility of waiving statutory liquidated damages and thus to prohibit certifying a class. See Foster, 2000 WL 1737858, at *3 n.3 (claiming that New York law prohibits waiver of liquidated damages by class representatives); LeGrand v. Educ. Mgt. Corp., No. 03-9798, 2004 WL 1962076, at *2-*3 (S.D.N.Y. 2004) (adopting reasoning of Foster); see also Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 341 n.84 (S.D.N.Y. 2004) (noting Foster’s misapprehension of state law). As the New York state law claims involve the same conduct as the FLSA claims, the exercise of supplemental jurisdiction is clearly proper. 28 U.S.C. § 1367; see also, e.g., Torres, 2006 WL 2819730, at *11 (exercising supplemental jurisdiction over New York Labor Law and FLSA claims, citing cases).
Given that I can properly exercise supplemental jurisdiction over the NYLL claims arising out of the policies complained of here, notice to all similarly situated employees who worked for VLM during the six years prior to the filing of this complaint is proper. See Harrington v. Educ. Mgt. Corp., No. 02-0787, 2002 WL 1343753, at *2 (S.D.N.Y. June 19, 2002) (authorizing FLSA notice to all similarly situated employees who worked for defendant in New York in past six years due to NYLL claims); Realite, 7 F. Supp. 2d at 308 n.4 (same). Despite the defendants’
12

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suggestion to the contrary, Def.’s Mem. 11 (arguing that six-year notice period must be rejected because “plaintiff has failed to make a motion to certify a class action pursuant to [Rule] 23”), this is the case even though the plaintiffs have not yet moved to certify a class to pursue their state law claims, as both Harrington and Realite authorized notice covering a six-year period before classes were certified to pursue the state law claims. Harrington, 2002 WL 1343753, at *1; Realite, 7 F. Supp. 2d at 304. Therefore, the notice should go back to March 16, 2001, and plaintiffs are directed to substitute “March 16, 2001” for “2001” in the proposed notice.
Similarly, I reject the defendant’s contention, unsupported by any authority, that notice must stop at January 2007, the date that the plaintiffs stopped working at VLM, as they cannot be “similarly situated” to any employee after that point. Courts have found employees with similar job functions and subject to the same allegedly unlawful practices to be “similarly situated” for notice purposes despite being at different job sites. See, e.g., Realite, 7 F. Supp. 2d at 303-04 (approving notice even though “all of the [alleged] violations may not have occurred at each of the 15 Ark Restaurants, and that offending compensation practices may have varied somewhat among the restaurants”); Burch v. Qwest Commc’ns Int’l, No. 06-3523, 2007 WL 2254747, at *1, *8 (D. Minn. July 24, 2007) (approving notice to a class composed of employees at job sites in 14 different states). If plaintiffs can be similarly situated to those who held similar jobs and were subject to the same policies despite having worked at different locations, I see no reason why they cannot be similarly situated to those who held similar jobs and were subject to the same policies despite having worked at different times, if those times were not far apart and were within the applicable statute of limitations.
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2. Reference to State Law Claims Defendants object to the proposed notice’s reference to claims under New
York state law, considering that the notice is being sent pursuant to § 216(b). Questions regarding the form of the notice are largely left to my discretion. See Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 105-06 (S.D.N.Y. 2003) (“No courts have specifically outlined what form court-authorized notice should take, or what provisions notice issued pursuant to § 216(b) should contain.”); see also HoffmannLaRoche, 493 U.S. at 170 (“As did the Court of Appeals, we decline to examine the terms of the notice used here, or its concluding statement indicating court authorization. We confirm the existence of the trial court’s discretion, not the details of its exercise.”). While there are several instances of § 216(b) notice being sent with reference only to the FLSA claims and not state law claims, e.g., Gjurovich, 282 F. Supp. 2d at 107, 109-11; see also Burch, 2007 WL 2254747, at *10 (deletion of reference to state law claims consented to by plaintiff), there is not a per se rule against inclusion of such claims, Garcia v. Elite Labor Serv., Ltd., No. 95-2341, 1996 WL 33500122, at *3 (N.D. Ill. July 11, 1996) (report and recommendation) (Guzman, Mag. J.) (“As to the fact that the notice references State law claims I do not find this to be a problem because the complaint clearly seeks relief under [state laws].”), adopted, No. 95-2341, 1996 WL 559958 (N.D. Ill. Sept. 30, 1996). Given that a potential plaintiff with both FLSA claims and state law claims would consider whether or not a state action was also being brought relevant to his decision whether to opt in to pursue his FLSA claims, I find the reference to state law proceedings appropriate.
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3. Information Regarding Representation, Costs, and Availability of Further Information

The defendants object that the proposed notice is misleading because it

does not notify potential plaintiffs that they can retain other counsel. Def.’s Mem. 10.

Plaintiffs argue that their notice is not misleading because it refers to the putative class

members’ right to consult with counsel. Their proposed notice states, “You have a right

to consult with an attorney about this matter. Lloyd Ambinder, Esq., of Barnes,

Iaccarino, Virginia, Ambinder & Shepherd, PLLC, located at 111 Broadway, Suite 1403,

New York, NY 10006, telephone number (212) 943-9080, represents the plaintiffs in this

case.” Ambinder Decl. Ex. F at 3. This language could be misleading in two ways.

First, placing the contact information of the plaintiff’s counsel directly after the sentence

regarding the right to consult an attorney could mislead potential class members into

thinking that plaintiff’s counsel is the only attorney they may consult with. Second, even

if potential class members understand “an attorney” to mean an attorney other than

plaintiff’s counsel, they may not understand that they have a right to have an outside

attorney actually represent them, not merely advise them whether to join the class.

Additionally,

the defendants object that the proposed notice fails to notify

potential plaintiffs that plaintiffs “will be responsible for costs,” Def.’s Mem. 10, and that

the defendants could bring counterclaims, id. at 9. Given the remote possibility that such

costs for absent class members would be other than de minimis, and the absence of any

showing by defendants that counterclaims are likely to be meaningful in this case, I think

such language is inappropriate. It may have an in terrorem effect that is disproportionate

to the actual likelihood that costs or counterclaim damages will occur in any significant

degree.

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The defendants also contend the notice should advise potential class
members that they can contact the defendants’ attorneys for more information and that
they can obtain copies of the complaint and answer. Def.’s Mem. 10. I find that it would
be appropriate to notify potential class members that they can seek further information
about the case, and to include the contact information of defense attorneys. See
Gjurovich, 282 F. Supp. 2d at 107-08 (ordering that notice provide contact information
on both attorneys and means to obtain further information).
Accordingly, plaintiffs are directed to modify their notice to include
language conveying the above information. The first two paragraphs on page 3 of the
revised notice shall be replaced with the following language:
[Name and contact information of plaintiff’s counsel] represents the plaintiffs in this case.
[Name and contact information of VLM’s counsel] represents defendant VLM in this case, and [Name and contact information of Vitacco’s counsel] represents defendant Joseph Vitacco in this case. If you choose to join this case, you should not contact the defendants’ lawyers directly yourself.
You will not be required to pay any fee for services provided by [plaintiffs’ counsel]. If you are represented by plaintiffs’ attorneys, their costs and fees will be paid out of any recovery against VLM. You have a right to consult with an attorney about this matter. If you wish to be represented by other counsel, you may retain another attorney, but you will be responsible for paying that attorney.
Further information about this Notice, the deadline for joining the lawsuit, or answers to other questions concerning this lawsuit may be obtained by contacting the plaintiffs’ attorneys [plaintiff’s counsel may choose to repeat their contact information here or reference their earlier contact information].
See Gjurovich, 282 F. Supp 2d at 107-10 (ordering and approving similar language
regarding counterclaims, contact information for defendants’ counsel, and further
information).
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4. Reference to “the ‘Class’”

Defendants

object that the proposed notice’s reference to “the ‘Class’”

may imply that I have already certified a class in this matter, as opposed to merely

authorizing notice to a putative class. Def.’s Mem. 9; see also Ambinder Decl. Ex. F at 1

(“Corporate officers, shareholders, directors, administrative employees [sic] will not be

part of the defined class (the ‘Class’).”). Considering that at no subsequent point does the

notice reference “the ‘Class,’” this language seems gratuitous, and may mislead potential

class members as suggested by the defendant. Accordingly, plaintiffs are directed to

strike the parenthetical reading “(the ‘Class’)” from the first page of their proposed

notice.

5. Consents Directed to Plaintiff’s Firm

The defendants object to the proposed notice’s statement that those who

wish to opt in to the FLSA collective action “must sign and return” the consent to joinder

form to plaintiff’s counsel, Ambinder Decl. Ex. F at 2, claiming that such notices should

be sent to the Clerk of Court. Def.’s Mem. 9. The plaintiffs argue that their counsel has

experience in collecting such notices and is simply providing a “uniform location to

collect all of the notices without burdening the court.” Pl.’s Reply 11. The consent to

joinder form indicates both the employee’s decision to participate in the action and desire

to have plaintiff’s counsel represent her in the proceedings. Pl.’s Reply Ex. G. I find that

this inappropriately discourages employees from seeking outside counsel. See Garcia,

1996 WL 33500122, at *5 (noting that majority of courts direct parties to submit opt-in

forms to clerk of court). Accordingly, the notice shall direct the recipients to submit their

consent forms to the Clerk of Court, not to the plaintiffs’ attorneys.

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6. Other Objections to Content of Notice The defendants also assert that the notice “unnecessarily and unfairly
implies that a person has a definitive right to recover unpaid overtime.” Def.’s Mem. at 9. Given that all claims of rights to recovery in the proposed notice are prefaced with the word “may,” see Ambinder Decl. Ex. F at 1-3, I see no such implication. Finally, the defendants also object, with no explanation, to the sentence, “You have a right to participate in this action even if you are an undocumented alien or you were paid in cash.” See Labuda Aff. Ex. C at 3. I am not persuaded that there is anything wrong with this statement. D. Application for Fees and Costs
The defendants’ request for an award of attorney’s fees and costs in connection with this motion is denied.
CONCLUSION For the reasons stated above, the motion to authorize notice is granted. On or before October 19, 2007, the plaintiffs are directed to propose a newly modified notice consistent with this decision. As discussed at oral argument, upon the joint application of the parties, I will consider authorizing language other than the language directed by this decision.

So

ordered.

John
Dated: Brooklyn, New York October 11, 2007

Gleeson, U.S.D.J. 18

 
 Case 1:07-cv-01126-JG-RER Document 58 Filed 03/02/2008 Page 1 of 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x ARMANDO GUZMAN and JOSE GARCIA, individually and on behalf of all other persons similarly situated who were employed by VLM, INC. d/b/a RELIABLE BAKERY,

FOR ONLINE PUBLICATION ONLY

Plaintiffs, -against-

07-CV-1126

MEMORANDUM AND ORDER
(JG) (RER)

VLM, INC. d/b/a RELIABLE BAKERY, and JOSEPH VITACCO,

Defendants. -----------------------------------------------------x A P P E A R A N C E S :

BARNES, IACCARINO, VIRGINIA, AMBINDER & SHEPHERD PLLC

111 Broadway, Suite 1403

New

York, NY 10006

By: Lloyd Ambinder

LaDonna

Marie Lusher

Attorneys

for Plaintiffs

MILMAN LABUDA LAW GROUP

3000 Marcus Avenue, Suite 3W3

Lake Success, NY 11042

By: Joseph M. Labuda

Attorneys

for Defendant VLM, Inc. d/b/a Reliable Bakery

GARY JOHN DMOCH & ASSOCIATES

171-22

Northern Boulevard

Flushing,

NY 11358

By: Gary J. Dmoch

Attorneys for Defendant Joseph Vitacco

JOHN GLEESON, United States District Judge:

Plaintiffs

Armando Guzman and Jose Garcia, for mer employees of

defendant VLM, Inc. (“VLM”), a bakery, brin g this pu tative class action alleging that

VLM and its president, Joseph Vitacco, denied them and other bakery em ployees

Case 1:07-cv-01126-JG-RER Document 58 Filed 03/02/2008 Page 2 of 21

overtime compensation in violation of the federal Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 201-219, and the New York La bor Law (“NYLL”), N.Y. La b. Law §§ 193,

663. I previously authorized notice of a co llective action under the FL SA’s provisions

for collective action s whereby sim ilarly situated employees can o pt into a p ending

lawsuit. The plaintiffs now m ove to clarify that this authorization of notice constitutes

conditional certification of a class under the FLSA and al so to certify a class under

Federal Rule of Civil Procedure 23 to purs ue their state law cl aims. The defendants

cross-move to dismiss the class allegations. For the reason s stated below, the plaintiffs’

motions are granted on the condition that they waive their claim to liquidated dam ages

and the defendants’ cross-motion is denied.

BACKGROUND

Armando Guzman and Jose Garcia are both form er employees of VLM,

which does business as “Reliable B akery,” and sue their form er employer alleging that

they and other em ployees they spoke to re gularly worked over 40 hours a week without

receiving time-and-a-half pay and “spread of hours” com pensation for hours worked

above 10 in a single day. Guzm an Aff., Aug. 14, 2007, ¶¶ 6-9, 11; Guzm an Aff., Sept.

13, 2007, ¶¶ 4-5 (claim ing to have discussed matter with 19 na med employees); Garcia

Aff., Dec. 11, 2007, ¶¶ 4-6 (claim ing to have discussed m atter with 24 name d employees).2 They claim that m ost of these e mployees performed tasks similar to those

performed by the plaintiffs. Guz man Aff., Sept. 13, 2007, ¶ 5; Ga rcia Aff., Dec. 11,

2007, ¶ 5. Guz man also affirms that he asked Vitacco to be paid more m oney, and

2

Guzman provides only two last names, identifying the rest by first names and

nationalities, except for one identified only by a nickname and nationality and one identified only by a

nickname. Guzman Aff., Sept. 13, 2007, ¶ 8. Similarly, Garcia identifies five by first and last name,

providing first names and nationalities for all the rest except for the same two nicknamed individuals cited

by Guzman. Garcia Aff. ¶ 8.

2

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Vitacco replied that he “was paying the res t of the workers the sam e way” as Guz man and thus could not pay Guz man more wit hout paying other workers m ore as well. Guzman Aff., Sept. 13, 2007, ¶ 6. In addition to their affidavits, Guzm an and Ga rcia both submit pay stubs, none of which indicates an hourly rate of pay or the hours worked. Ambinder Decl., Dec. 17, 2007, Ex. A; Ambinder Decl., Dec. 17, 2007, Ex. B.
Additionally, three other putative cl ass members, who are bakers, have submitted affidavits claiming that they were not paid overtime, and also that they worked with numerous other bakers. Rios Aff. ¶¶ 4, 5, 10; Orellana Aff. ¶¶ 4, 6, 10; Ali Aff. ¶¶ 3, 6, 8-10. Nelson Rios alleges that other bake ry employees have told him they did not receive overtime payment, and that he has spoken to 20 na med bakery em ployees regarding the matter, most of whom performed work similar to his. Rios Aff. ¶ 8. 3 Jhon Orellana affirms that he knows his coworkers were not paid overtime compensation from frequent discussions with them , but he does not provide any na mes. Orellana Aff. ¶ 10. Orellana also provides several pay stubs th at do not show his hours worked or hourly rate. Am binder Decl., Dec. 17, 2007, Ex. C. Guzman and Garcia also allege that the “vast majority” of bak ery employees were from Pakistan, South America or Central America, and that they believ e many might be fearful to bring this case on their own. Guzman Aff., Feb. 14, 2008, ¶ 20; accord Garcia Aff., Fe b. 14, 2008, ¶ 16; see also Guzman Aff., Sept. 13, 2007, ¶ 5 (alleging signif icant majority of named individuals to be of Latin American national origin); Garcia Aff., Dec. 11, 2007, ¶ 12 (sam e); Rios Aff. ¶ 8 (same).

3

Rios identifies all but three by first name and nationality. Rios Aff. ¶ 8.

3

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VLM and Vitacco both deny that they have failed to pay V LM employees overtime. They subm it affidavits from 10 current em ployees of the bakery. T hese affiants are 10 out of 18 ind ividuals who submitted earlier affidav its opposing the plaintiffs’ motion to authorize notice for the FLSA opt-in collective action. The original affidavits were rather cursory; all of the affiants claim they were told when they began work that they would be paid m inimum wage on an hourly basis with tim e and a half for overtime; that they “believe” they have been paid for all of the time they worked and are not owed any m oney; that they have “always been paid properly”; and that they have spoken with “dozens” of other em ployees who have also been paid fully. See Ambinder Decl., Dec. 17, 2007, Ex. E.
Each affidavit proffered by the defendant here sets forth the affiant’s hourly rate, indicates that the affiant is paid time-and-a-ha lf pay for hours worked over 40, and includes a chart of the hours worked a nd wages received during the course of the affiant’s employment. Carrasco Aff. ¶¶ 3, 6; Cruz Aff. ¶¶ 3, 6; Jesus Martinez Aff. ¶¶ 3, 6; Lopez Aff. ¶¶ 3, 6; Julio Martinez Aff. ¶¶ 3, 6; Hernandez Aff. ¶¶ 3, 6; Vitale Aff. ¶¶ 3, 6; Baksh Aff. ¶¶ 3, 6; Husa in Aff. ¶¶ 3, 6; Plastina Aff. ¶¶ 3, 6. In a noteworthy contrast to the earlier affidavits, only one of these cha rts sets f orth a wage rate that reflects New York’s minim um wage at the co mmencement of the af fiant’s employment. See Cruz Aff. ¶ 6.4
The charts of e mployee pay all f eature a curious “incentive bonus” apparently intended to insulate the employee’s pay from variation based on hours actually

4

The other affidavits all reflect wages that start above New York’s minimum wage.

However, due to increases in New York’s minimum wage during the period at issue, in two cases wages

starting above minimum wage become minimum wage during the course of the affiant’s employment. See

Lopez Aff. ¶ 6; Plastina Aff. ¶ 6.

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worked. The m ajority of weekly entries for each em ployee reflect incentiv e bonuses which bring the em ployee’s weekly pay up to the sam e level (which te nds to incre ase over the term of the employee’s tenure). On some weeks, the employee receives more or less money than on neighboring weeks, thoug h even in such cas es the incentive bonus always smoothes the amount of weekly pa y to a whole dollar amount, and usually one divisible by 10. Generally, however, the in centive bonuses decrease as the am ount of hours worked in a week increases, so as to maintain the employee’s pay at the same level. Each employee states, “[W]hen I was hired I was told that if I worked my entire schedule for the week, I would receive additional incentive pay that now guarantees m e average earnings of [a dollar am ount that is differe nt for each em ployee] per day. This encouraged me to show up to work each day. . . . Sometimes, if I worked more time than my regular shift, I m ight receive additional monies above the incentiv e pay.” Carrasco Aff. ¶¶ 4, 5; Cruz Aff. ¶¶ 4, 5; Jesus Martin ez Aff. ¶¶ 4, 5; Lopez Aff. ¶¶ 4, 5; Julio Martinez Aff. ¶¶ 4, 5; Hernandez Aff. ¶¶ 4, 5; Vitale Aff. ¶¶ 4, 5; Baksh Aff. ¶¶ 4, 5; Husain Aff. ¶¶ 4, 5; Plastina Aff. ¶¶ 4, 5.
Each employee further states, “I sig n for my weekly pay which indicates the hours I worked, my pay rate, and any incenti ve pay that I receive,” and each includes a pay stub for the week ending January 27, 2008 and a si gned page with a handwritten dollar figure bearing the legend “I agree that the above am ount represents m y weekly incentive bonus for the week ending 1/27/08.” Carrasco Aff. ¶ 7 & Ex. A; Cruz Aff. ¶ 7 & Ex. A; Jesus Martinez Aff. ¶ 7 & Ex. A; Lo pez Aff. ¶ 7 & Ex. A; Julio Martinez Aff. ¶ 7 & Ex. A; Hernandez Aff. ¶ 7 & Ex. A; Vitale Aff. ¶ 7 & Ex. A; Baksh Aff. ¶ 7 & Ex. A; Husain Aff. ¶ 7 & Ex. A; Plastina Aff. ¶ 7 & Ex. A.
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The plaintiffs each deny ever having heard of an incentive bonus or ever having seen pay documents of the sort pro ffered by the defendants’ af fiants. Guzm an Aff., Feb. 14, 2008, ¶¶ 13-14; Garcia Aff., Feb. 14, 2008, ¶¶ 11-12. Garcia also claims to have spoken to several of the defendants’ affiants, who claim ed contrary to their affidavits that they were paid on a daily basis and not paid for overtime. Garcia Aff, Feb. 14, 2008, ¶¶ 6, 9. The plaintiffs also allege th at some of the individuals they recall working with, and even one individual who subm itted an earlier a ffidavit for the defendants, are not reflected on the list of employees provided for notice purposes. Guzman Aff., Feb. 14, 2008, ¶ 8; Garcia Aff., Feb. 14, 2008, ¶ 6; compare Ambinder Aff., Dec. 17, 2007, Ex. E (affidavit of Naseb Choudhy Mohammad, initially proffered by the defendants) with Ambinder Aff., Feb. 8, 2008, Ex. E (list of nam es provided by defendants for notice purposes, excluding Mohammad).
An additional bakery employee, Marcelino Huerta, has recently opted in to the collective action an d provided an affidavit. Huer ta Aff., Feb. 24, 2008. Huerta’s affidavit is substantially similar to the most recent affidavits p rovided by Guzman, Garcia, and Khan, in that he claim s to have worked overtime without receiving overtime or spread-of-hours compensation, id. ¶¶ 4-5, 7, 8; he claim s that he believes the other bakery employees were similarly denied overtime pay, id. ¶ 7; he denies having heard of or received an incentive bonus, id. ¶ 10; and he claims that the vast majority of the workers employed at the bakery were from Pakistan, South America or Central America and would be afraid to bring the case on their own, id. ¶ 9.
Huerta’s affidavit does, however, contain several notable differences from those submitted by Guzman, Garcia, and Khan. First, Huerta acknowledges occasionally receiving approximately $30-$40 extra in cash on certain weeks, starting in
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approximately February of 2007, for what his employer stated was overtime pay. Id. ¶ 5.
Second, he claim s that he hear d from his coworkers that “o ther workers were fired for
asking overtime payment.” Id. ¶ 9. Third, he addresses an e arlier affidavit, submitted by
the defendants under his nam e in oppositio n to the m otion to au thorize notice to the class.5 In the earlier affidavit, Huerta alleged that he believed that he was paid properly
and not owed any m oney. Huerta Aff., Sept. 5, 2007. In his current affidavit, he states
that he does not recog nize the earlier affidavit or rem ember it be ing translated into
Spanish, and that he rem embers being asked by a supervisor to sign various docum ents
he was informed were for com pany records, but that his signatures on those docum ents
were not notarized. Huerta Aff., Feb. 24, 2008, ¶ 6. His signature in the earlier affidavit,
which matches his later signature closely, was notarized. Huerta Aff., Sept. 5, 2007. The
defendants have submitted an affidavit from a supervisor claiming that Huerta understood English and understood that he was being paid overtime. Coppolo ¶¶ 4-9.6
The plaintiffs’ proposed class is defined as follows:
The plaintiffs and all curren t and former employees of VLM, INC. d/b/a/ RELIABLE BAKERY (“VLM”) who worked as bakers, food handler s, storage handlers, landing dock employees and in other job functions related to defendants’ bakery operation from March 16, 2001 through the present. Corporate officers, shareholders, directors and administrative employees shall not be part of the proposed class.

Ambinder Decl., Dec. 17, 2007, ¶ 1. This is authorized notice.

the same group to w hom I previously

5

This earlier affidavit was submitted under the name “Marcelina Huerta,” but bears the

signature “Marcelino,” which closely matches the signature Huerta affixed to his recent affidavit for the

plaintiffs. See Huerta Aff., Feb. 24, 2008; Huerta Aff., Sept. 5, 2007.

6

The affiant also believes that Huerta joined the action because he was recently suspended

for drinking alcohol while working. Id. ¶¶ 10-11.

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DISCUSSION A. The Plaintiffs’ Motion to Clarify That the FLSA Class is Conditionally Certified
In a m emorandum and order dated October 11, 2007, I authorized the plaintiffs to notify potential FLSA class members of the pendency of the action, allowing them to opt in to an FLSA collective action. Guzman v. VLM, Inc., No. 07-CV-1126 (JG) (RER), 2007 WL 2994278, *9 (E.D.N.Y. Oct. 11, 2007). The plaintiffs in their motion papers ask to conditionally cert ify the class as an FLSA coll ective action. Pl.’s Mem . 78. In their reply papers, the plaintiffs argue that the FLSA class is alre ady conditionally certified as a collective action. Pl.’s Reply Mem. 3. I take this as a motion to clarify that my authorization to notify potential class members constituted a conditional certification of the class for the purposes of authorizi ng notice and discovery. For the reasons set forth in m y memorandum and order of Oc tober 11, 2007, the m otion is granted. See Guzman, 2007 WL 2994278, at *2 (noti ng that a class is ty pically conditionally certified at the notice stage of FLSA collective actions). B. The Plaintiffs’ Motion to Certify the State Law Class
1. The Legal Standard for Class Certification Federal Rule of Civil P rocedure 23(a) provides that one or more plaintiffs
may proceed as a representative on behalf of all m embers of a class only if they can establish (1) “numerosity” of the class, see Fed. R. Civ. P. 23(a)(1 ) (“the clas s is so numerous that joinde r of all parties is im practicable”); (2) the “c ommonality” of questions of law or fact, see Fed. R. Civ. P. 23(a)(2) (“there are questions of law or fact common to the class ”); (3) the “typ icality” of the nam ed plaintiffs’ claim s or defenses, see Fed. R. Civ. P. 23(a)(3) (“ the claims or d efenses of the representative parties are typical of the claim s or defenses o f the class”); and (4 ) the “adequacy” of the nam ed
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plaintiffs as class representatives, see Fed. R. Civ. P. 23(b)(4) (“the representative parties will fairly and adequately protect the interests of the class”). See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999) (noti ng that the plaintiff bears the burden of proving these requisites), overruled on other grounds by In re Initial Pub.Offering Sec. Litig. , 471 F.3d 24, 40 (2d Cir. 2006). Rule 23 also contains an “implicit requirement” that the class be precise and ascertainable. Bakalar v. Vavra, 237 F.R.D. 59, 64 (S.D.N.Y. 2006). If the plainti ff establishes these elements, Rule 23(b)(3) allows a class action to be “m aintained” as long as the plaintiff establishes the “predominance” of common legal and fact ual questions over individual ones, see Fed. R. Civ. P. 23(b)(3) (“the questions of law or fact common to class m embers predominate over any questions affecting on ly individual members”) and the “superiority” of a class action compared to other m ethods, see id. (“a class action is superior to other available methods for fairly and efficiently adjudicating the controversy”).
I may certify a cla ss only after I determ ine “that each of the Rule 2 3 requirements has been met,” IPO Sec. Litig., 471 F.3d at 41, which requires me to resolve all relevant factual disputes, ev en if they are id entical with issues go ing to the m erits of the case, id. In order to reso lve these dispu tes, I m ust “receive enou gh evidence, by affidavits, documents, or testim ony, to be satisfied that each Rule 23 requirem ent has been met.” Id. However, in order to ensure that the class certification motion does not “become a pretex t for partial trial on the m erits,” id., I have “am ple discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met,” id. Any factual findings I make in deciding this motion are m ade only for that purpose and do not bind the trier of
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fact. Cordes & Co. F in. Servs., Inc. v. A.G. Edwards & Sons, Inc. , 502 F.3d 91, 108 &

n.13 (2d Cir. 2007) (quoting IPO Sec. Litig., 471 F.3d at 41).

2. Numerosity

Rule 23(a)(1) prev ents certification unless a class is “so num erous that

joinder of all m embers is im practicable.” Fed. R. Civ. P. 23(a)(1). However,

“[i]mpracticable does not mean impossible.” Robidoux v. Celani, 987 F.2d 931, 935 (2d

Cir. 1993). “A class com prised of more than forty m embers generally satisfies

numerosity.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995);

see also Robidoux, 987 F.2d at 935 (similar).

The plaintiffs claim that the class consists of up to 250 m embers based on

their affidavits and those of other employ ees. The defendants have provided 133 nam es

and addresses in authorizing notice to the m embers of the class. It is undisputed, and I

find, that the class as the plaintiffs define it -- individuals the defendants em ployed in

specified positions within the specified time period -- consists of at leas t 133 individuals,

and there no serious dispute that this cl numerosity.7

ass would easily satisf y the requirem ent of

The defendants, however, claim that the class m ust be narrowed under

New York class action law to include only those four individuals who have opted into the

FLSA action. They rely for this proposition on Alix v. Wal-Mart S tores, Inc., 838 N.Y.S.2d 885, 889 (Sup. Ct. 2007), 8 which found that a class com posed of all hourly

employees of Wal-Mart and Sam’s Club in Ne w York included too few individuals with

7

I do not find relevant to this motion, and thus do not decide, whether the class so defined

consists of more than 133 individuals as the plaintiffs claim. See IPO Sec. Litig, 471 F.3d at 40 (specifying

“more than 200” as a hypothetical satisfactory finding as to the size of the class for numerosity purposes).

8

The defendants do not indicate what significance they wish me to attach to New York

courts’ construction of New York’s class action statute.

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even a colorable claim for relief. Whatever the persuasive force this opinion may have as applied to Rule 23, it do es not stand for the proposition that only thos e individuals who opt into an FLSA collective action are proper class members for a NYLL action based on the same conduct. That latter prop osition has been rejected by seve ral federal co urts. See, e.g., Jankowski v. Castaldi , No. 01-CV- 164 (SJF)(KAM), 2006 W L 118973, *2 (E.D.N.Y. Jan. 13, 2006) (declin ing to lim it NYLL class to the num ber of individuals who submitted FLSA opt-in form s for num erosity purposes due to the possibility of intimidation or retaliation by employers); Noble v. 93 Univ. Pl. Corp. , 224 F.R.D. 330, 342 (S.D.N.Y. 2004) (sim ilar in case where only three employees opted into F LSA claims). I rej ect it as well. The cl ass as defined by the plaintiffs is proper, 9 and there is no real dispute that it satisfies the numerosity requirement.10
3. Commonality Rule 23’s requirement of “questions of law or fact common to the class ,”
Fed. R. Civ. P. 23(a)(2), can be satisfied by ev en a single qu estion of law or fact th at is common to all c lass member, if the common question is “‘at the “co re” of the cau se of action alleged.’” Velez v. Majik Cleaning Serv., Inc. , No. 03-CV-8698 (SAS), 2005 W L 106895, at *2 (S.D.N.Y. 2005) (quoting D’Alauro v. GC Sys. Ltd. P ’ship, 168 F .R.D. 451, 456 (E.D.N.Y. 1996)). The defendant s do not dispute that commonality is established here, and I determine that it is.

9

I note that the defendants do not challenge the ascertainability of the class as the plaintiffs

have defined it.

10

As noted infra, the defendants also argue that the pendency of the FLSA action renders

joinder of all of the class members practicable. I address that contention in Section B.6, infra.

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4. Typicality Rule 23(a)(3) “‘requ ires that the claim s of the class rep resentatives be
typical of those of the class, and is s atisfied when each class member’s claim arises from the same course of events, and each clas s member makes similar legal arguments to prove the defendant’s liability.” Robinson v. Metro-North Commuter R.R. Co. , 267 F.3d 147, 155 (2d Cir. 2001) (quoting Marisol A. ex rel. Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (per curiam)).
The evidence put forth here ov erwhelmingly indicates that the p laintiffs’ claims are typical of those of the class. The plaintiffs’ affidavits allege speakin g to numerous fellow employees who made similar claims; Guzman Aff., Aug. 14, 2007, ¶¶ 6-9, 11; Guzman Aff., Sept. 13, 2007, ¶¶ 4-5; Garcia Aff., Dec. 11, 2007, ¶¶ 4-6; Rios Aff. ¶ 8; Orellana Aff. ¶ 10; Guzman alleges that Vitacco told him that he could not raise Guzman’s salary because he was paying all of the other employees the sam e way a nd would have to give them a raise as well; Guzman Aff., Sept. 13, 2007, ¶ 6, and, tellin gly, the defendants’ own affiants each report receiving a fluctuating “in centive bonus” which serves only to guarantee them a certain daily income regardless of hours worked. Carrasco Aff. ¶¶ 4, 5; Cruz Aff. ¶¶ 4, 5; Jesu s Martinez Aff. ¶¶ 4, 5; L opez Aff. ¶¶ 4, 5; Julio Martinez Aff. ¶¶ 4, 5; Hernandez Aff. ¶¶ 4, 5; Vitale Aff. ¶¶ 4, 5; Baksh Aff. ¶¶ 4, 5; Husain Aff. ¶¶ 4, 5; Plastina Aff. ¶¶ 4, 5.
The defendants’ claim that the plaint iffs’ claims and defenses are n ot typical is unconvincing. First, they claim that their affian ts are potential class m embers with claims very different from those of the plaintiffs. The de fendants do not, how ever, explain the inconsistency between the affi ants’ recent s ubmissions and their e arlier
12

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assertions that they were told they would receive minimum wage. More importantly, the affidavits listing the “incentive bonuses” support the plaintiffs’ claims that other bakery employees were paid on a daily and not hourly basis.
Second, the defendants suggest that different employees would face different legal issues in establishing whether Vitacco was their “em ployer” within the meaning of the FLSA. See 29 U.S.C. § 203(d) (defining employer to include “any person acting directly or indire ctly in the in terest of an employer in relation to an employee”). To determine if an individua l is an “em ployer” under that act, courts consider the “economic reality” by assessing such factors as whether the individual (1) was able to hire and fire em ployees; (2) controlled work schedules or em ployment conditions; (3) determined the rate and m ethod of paym ent; and (4) m aintained employment records. Herman v. RSR Sec. Servs. Ltd. , 172 F.3d 132, 139 (2d Cir 1999); see also Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 71-72 (2d Cir. 2003) (noting that Herman factors are not exclusive). Guzman affirms that Vitacco acknowledged his ability to set pay rates for the entire bakery by saying that he could not change Guz man’s wages without changing the wages of the ot her employees. Guzm an Aff., Sept. 13, 2007, ¶ 6. V itacco in his own affidavit acknowledges being Presid ent of VLM and dem onstrates significant knowledge regarding its personnel practices. Vitacco Aff., Jan. 31, 2008, ¶¶ 3-8. As th e defendants have not p roduced any evidence in dicating that Vitacco d id not se rve as an employer with respect to any class m ember, I find that the plain tiffs have carried their burden of demonstrating that their claims are typical of the claims of the class members.
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5. Adequacy Before a court can certify a class, the plaintiffs must establish that they can
“fairly and adequately protect th e interests of the class.” Fe d. R. Civ. P. 23(a)(4). To establish adequacy, a plaintiff must show that “‘class coun sel is qualified, experienced and generally able to conduct the litigation,’” an d that “‘there is no conf lict of interest between the named plaintiffs and other members of the plaintiff’s class.’” Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 87 (S.D.N.Y. 2001) (quoting Marisol A., 126 F.3d at 378); see also Cordes, 502 F.3d at 99 (similar).
The defendants do not challenge the qua lifications or expertise of the plaintiff’s counsel, and which I find fully satisfactory. The defendants object, how ever, to the pla intiffs themselves as rep resentatives. First, they claim that the fact that the plaintiffs are no longer em ployed by the defendants raises a conf lict of interest. I see no conflict in this circum stance. See Ansoumana, 201 F.R.D. at 87 (“Because this is a suit primarily for money damages stemming from past actions, it is not relevant that only one of the named Plaintiffs is still employed [by the defendant].”); see also Iglesias-Mendoza v. LaBelle Farm, Inc. , 239 F.R.D. 363, 372 (S.D.N.Y. 2007) (finding irrelevant the fact that a named plaintiff was fired for misconduct).
Second, the defendants claim that Guz man’s alleged destruction of a bakery alarm and of a bakery clock, for wh ich Guzman was term inated, indicates such moral turpitude that Guzm an could not adequa tely represent a class. While the parties contest the facts of these incidents, I find it unnecessa ry to resolve th ese disputes. It is true that class representatives with credib ility so poor as to m aterially impair the plaintiffs’ case at trial m ay be inadequate for that reason. See, e.g., Savino v. Computer
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Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998) (upholdi ng a determ ination of inadequacy based on the finding that the pl aintiff’s “differing accounts about the letters that form the very basis for his lawsuit surely would create serious concerns as to his credibility at any trial”); but see In re NYSE Specialists Sec. Litig. , 240 F.R.D. 128, 144 (S.D.N.Y. 2007) (“Any allegations concerning th e representative’s adequacy must be relev ant to the claims in the litig ation, such tha t the problems could becom e the f ocus of crossexamination and unique def enses at tr ial, to the detr iment of the class. Plain tiff’s testimony or credibility that is subject to attack must be on an issue critical to one of their causes of action.” (internal quo tation marks and alteratio ns omitted) (citing cas es)). However, even if I found that Guzm an had destroyed bakery pr operty, this would constitute at best only modest evidence of bias if Guzman was called as a witness at trial, and would not m aterially impair his credibilit y. It would not in any way constitute a defense specific to Guzm an or ot herwise impair his representation o f the class. See Iglesias-Mendoza, 239 F.R.D. at 372 (finding plain tiff’s termination for m isconduct irrelevant to whether he was an adequate representative for a class suing under FLSA and NYLL). Therefore, I find that the plaintiffs are adequate class representatives.
6. Predominance For a class action to be m aintained under Rule 23(b)(3), I must determ ine
that “the questions of law or fact comm on to class members predominate over any questions affecting only indivi dual members.” In m aking this determination, I look to “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litig ation concerning the controve rsy already begun by or against class m embers; (C) the desirability or undesirability of
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concentrating the litig ation of the claims in a particular forum; and (D) the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3).
If common questions of law or fact predominate regarding liability, the existence of individual questions as to damages is generally unim portant. See, e.g., Iglesias-Mendoza, 239 F.R.D. at 372-73 (“[W ]hen determining whether common issues predominate, courts focus on the liability issue.” (in ternal quotation m arks omitted)); Noble, 224 F.R.D. at 345-46 (noting possibility of bifurcating trials into liability and damage phases). Predom inance is satisfied he re, where the central is sue is whether the defendants had a uniform policy or practic e of denying overtim e and spread-of-hours compensation to its em ployees. See Noble, 224 F.R.D. at 345 (finding predom inance of common questions when the action was based on “defendants’ alleged policy of requiring employees to work overtime hours without adequate compensation).
7. Superiority The final requirem ent under Rule 23(b)(3) is that a class action be
“superior to other available m ethods for fairly and efficiently adjudicating the controversy.” The same factors relevant to my determination regarding predominance are relevant to my assessment of whether a class action is superior to other methods. Fed. R. Civ. P. 23(b)(3)(A)-(D). The defendants m ake several arguments to suggest that this superiority requirement is not satisfied here.
First, they suggest that it will not lead to judicial economy considering that the FLSA c ollective action already provides for easy partic ipation in this litigatio n.11 This is unp ersuasive. The plaintiffs argue that m any employees will be reluctant to

11

The defendants style this as a challenge to numerosity, but considering the presumption

that joinder is impracticable with a class of over 40, I think this challenge is properly directed at the

superiority of a class action over alternative forms of litigation.

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participate in the action due to f ears of retaliation, and I have seen nothing in the record to convince me that this is not a valid concern. Seen in this light, th e opt-out nature of a class action is a valuable feature la cking in an FLSA collective action. See Noble, 224 F.R.D. at 346 (finding superiority based in part on the possibility that employees would be dissuaded from pursuing individu al claims by fear of reprisal); cf. Ansoumana, 201 F.R.D. at 85-86 (considering likelihood that low-wage immigrant employees would fear reprisal as affecting the likelihood that they would pursue claims independently of a class action). The FLSA’s opt-in procedure is sim ply not an equivalent stand-in for a class action in this case.
The defendants’ next argu ment is that it would be confusing to m ail two sets of notices; one to allow the plaintif fs to opt in to the FLSA collectiv e action and one to allow them to opt out of the class action. It is true that there would be some possibility of confusion, but this can be allayed through careful wording of the class not ice. In any event, of course, the question is not whether a class action would be perfect but whether it would be superior to the alternative. I do not find that any confusion that the dual notices may cause to significantly undermine the superiority of a class action.
The defendants also note that allowi ng Rule 23 class certification would be likely to expand the litigation to include numerous state-law claims and only a handful of federal claim s. This m ay appear particularly incongruous because a vast num ber of the state plaintiffs will have declined to pursue their federal claims but will n evertheless be members in a class seeking redress over essentially the same conduct. The defendants urge that the predom inance of state law c laims will ju stify declining to exer cise supplemental jurisdiction, and suggest that m aintaining a federal cl ass action will thwart
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Congress’s policy in specifying the opt-in procedure for F LSA collective actions and in

enacting the Rules Enabling Act, see 28 U.S.C. § 2072(b) (noting that rules prom ulgated

pursuant to Rules Enabling Act may not abridge substantive rights).

28 U.S.C. § 1367 allows a federal

court to exercise supplem ental

jurisdiction over claim s within the sam e constitutional case or contro versy as a claim

over which it has original jurisdiction. It is clear that the NYLL claims, arising out of the

same conduct as the FL SA claims, fall within the same constitutional case. However, §

1367 allows a court to d ecline to exercise supplemental jurisdiction if the state law claim

“substantially predominates over the claim or claim s over which the court has original

jurisdiction.” § 1367(c)(2). In determining whether to decline to exercise supplem ental

jurisdiction, “district courts should balance the values of judicial economy, convenience,

fairness, and comity.” Klein & Co. Futures, Inc. v. Bd. of Trade , 464 F.3d 255, 262 (2d

Cir. 2006).

Some courts have declined to exercise supplemental jurisdiction over state

labor law claim s where few pl aintiffs had or were predic ted to opt into an F LSA

collective action. See, e.g., Jackson v. City of San Antonio, 220 F.R.D. 55, 60 (W.D. Tex.

2003) (declining to exercise s upplemental jurisdiction based on the size of the state law

class compared to the few indiv iduals who op ted in und er FLSA); see also, e.g. , De

Asencio v. Tyson Foods, Inc., 342 F.3d 301, 312 & n.18 (3d Cir. 2003) (finding district

court abused discretion in exer cising supplemental jurisdiction over state law claim s that

involved different proof than FLSA claims).

Here I find that the values of judi cial economy, convenience, and fairness

all favor exercising supplem ental jurisdiction, and I do not find com ity concerns to be

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strongly implicated. The factual overlap betw een the federal claims and the state claims is virtually total; it would ill serve the interests of conve nience or judicial econom y to relitigate in state court the def endants’ pay practices. To the extent that em ployees may feel intimidated about voluntee ring to participate in an action as suggested by the plaintiffs, fairness counsels in favor of exer cising supplemental jurisdiction to hear their claims. And due to the straightforward nature of the legal questions under state law, no significant comity interest counsels in f avor of allowing state cour ts to decide those claims.
I note that it is routine for courts in the Second Circuit to certify state labor law classes in FLSA actions. See, e.g., Ansoumana, 201 F.R.D. at 90-91 (exercising supplemental jurisdiction over NYLL claim s); Toure v. Cent. Parking Sys. , No. 05-CV5237 (WHP), 2007 WL 2872455, at *9 (S.D.N.Y. Sep. 28, 2007) (certifying NYLL class in FLSA action without explicit discussion of the reason f or exercising supplem ental jurisdiction); Jankowski, 2006 W L 118973, at *9 (sim ilar); Noble, 224 F.R.D. at 346 (similar); but see Neary v. Metro. Prop. & Cas. Ins. Co., 472 F. Supp. 2d 247, 251-53 (D. Conn. 2007) (declining to exercise supplem ental jurisdiction over state-law claim s from all fifty states ). Accordingly I exercise m y supplemental jurisdiction over the NYLL claims.
I reject the defendants’ argum ents that the FLSA or the Ru les Enabling Act in som e way forbid m aintaining this class action. It is true that som e courts have found that FLSA’s opt-in procedures are circ umvented by certifying a Rule 23 class for state law claims regarding similar conduct. See, e.g., Otto v. Pocono Health Sys. , 457 F. Supp. 2d 522, 523-24 (M.D. Pa. 2006) (holding that to allow FLSA and Rule 23
19

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proceedings simultaneously would “essentially nullify Congress’s intent in crafting Section 216(b) [FLSA’s opt-in provision], and eviscerate the purpose of Section 216(b)’s opt-in requirement”); Herring v. Hewitt As soc., Inc., No. 06-267 (GE B), 2006 WL 2347875, at *2 (D.N.J. Aug. 11, 2006) (finding Rule 23 and FLSA opt-in provision “inherently incompatible”). However, it is settled in the Second Ci rcuit that FLSA does not preempt state wage and hour laws. See Overnite Transp. Co. v. Tianti , 926 F.2d 220, 222 (2d Cir. 1991) (affirm ing rejection of th e claim that F LSA preempted Connecticut overtime law). That being the cas e, there is no reason that FLSA’s collective action procedure is incom patible with maintaining a state law class action over the s ame conduct. See Westerfield v. Wash. Mut. Bank , No. 07-CV-2817, 2007 WL 2162989, *1*3 (E.D.N.Y. July 26, 2007) (reje cting argument that Rules Enabling Act prevented class actions from being brought in tandem with FLSA actions); see also id. at *3 (“There is no legal doctrine, of which the C ourt is aware, that perm its the Court to dism iss a cause of action solely on the grounds that it is ‘inherently incompatible’ with another action before it. . . . [The cases which rely solely on] the theory of inherent incompatibility are simply wrongly decided under an im aginary legal doctrine.”). Thus, while FLSA claim s cannot themselves be brought through a class action, neither FLSA nor the Rules Enabling Act preempts the NYLL or its enforcement through a class action.12

12

I fail to grasp the significance of the defendants’ claim that principles of res judicata

could lead an absent Rule 23 class member’s FLSA claim to be finally resolved even though the plaintiff

fails to opt in to the FLSA collective action. The defendants, apparently in an abundance of concern for the

rights of absent Rule 23 class members, are worried that someone who fails to opt out of the Rule 23 class

action will have all claims that could have been brought in that action, including any FLSA claim, resolved

by res judicata without opting in to the FLSA action. But principles of res judicata apply to any class

action, whether it contains a simultaneous FLSA claim or not. If FLSA prevented a Rule 23 class action

from being brought in a case where an FLSA claim was being brought simultaneously, it would also

prevent Rule 23 class actions (or state opt-out actions) in cases where FLSA claims could have been made,

even if they were not in fact made. I do not interpret 29 U.S.C. § 216(b) to sweep so broadly, nor does any

decision of which I am aware.

20

Case 1:07-cv-01126-JG-RER Document 58 Filed 03/02/2008 Page 21 of 21

Therefore, I find a class action superi or to other available m ethods for

fairly adjudicating the controversy.

C. The Defendants’ Cross-Motion to Dismiss the Class Allegations

In addition to reiterating their argu ments against class certification, the

defendants cross-move to dism iss the class allegations based on the unavailability of

liquidated damages in class act ions under New York law. N. Y.C.P.L.R. 901(b). I have

already decided, however, that th e plaintiffs can bring their state law claim s as a class

action if they waive their claims to liquidated damages. See Guzman, 2007 WL 2994278,

at *5. The defendants have provided no reason to reconsider my decision.

CONCLUSION

For the reasons stated above, the pl aintiffs’ motions are granted on the

condition that they waive their claim s to liquidated damages, and the defendants’ cross-

motion is denied.

So

ordered.

John
Dated: March 2, 2008 Brooklyn, New York

Gleeson, U.S.D.J.

21

 
 Case 1:07-cv-01126-KAM-RER Document 134 Filed 08/14/09 Page 1 of 5 PageID #: 1062 Case 1:07-cv-01126-KAM-RER Document 133-1 Filed 07/17/09 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
ARMANDO GUZMAN and JOSE GARCIA, individually and on behalf of all other persons similarly situated who were employed by VLM, INC. d/b/a/ RELIABLE BAKERY,
Plaintiffs, -against-

Index:

07-CV-1126 (KAM) (RER)

VLM, INC. d/b/a/ RELIABLE BAKERY, and JOSEPH VITACCO,
Defendants.

FINAL ORDER
The parties having applied for a Final Order ofthe Court (i) approving the settlement ofthe above-captioned action (the "Action"), pursuant to a Stipulation of Settlement and Procedure for Resolution ("Settlement Agreement") dated March 27, 2009, and (ii) dismissing the Action pursuant to the terms and conditions set forth in the Settlement Agreement and the Notice of Proposed Settlement of Class Action and Settlement Hearing (the "Notice"); and
This matter having come to be heard before the Court on June 16, 2009 pursuant to an Order ofthe Court which directed among other things, that a hearing be held on notice for the purpose of determining whether the settlement provided for in the Settlement Agreement and the Notice is fair, reasonable and adequate and whether it should be approved by the Court; and
The Court having read and considered the Settlement Agreement, the papers filed in support of the settlement, and the fee request; and it appearing
(i) the Notice was mailed by First Class Mail on or before April 8, 2009, each member of the Class as defined in the Notice;

Case 1:07-cv-01126-KAM-RER Document 134 Filed 08/14/09 Page 2 of 5 PageID #: 1063 Case 1:07-cv-01126-KAM-RER Document 133-1 Filed 07/17/09 Page 2 of 5
(ii) the Court having heard, at a Hearing held on June 16, 2009 the attorneys for the respective parties in support of the Settlement; and no objection(s) to the Settlement having been filed, and no objection(s) to the Settlement having appeared at the hearing; and
(iii) Plaintiffs' counsel having notified the Court that the amount of the potential settlement fund created for the benefit ofthe class would not exceed the sum of $1 ,200,000.00, and
(iv) Plaintiffs' counsel having further notified the Court that the FLSA Claims contained in the annexed Exhibit "1" total $340,016.82; and
(v) Plaintifs' counsel having further notified the Court that claimants Evaristo Rosales, David Berrios, Ramon Chavez, Ikram Khan Juan Carlos Rodriguez and Alberto Hernandez, possess Rule 23 claims designated as "Disputed" pursuant to Paragraph 8(d)(i) of the March 27, 2009 Settlement Agreement. The parties have been in active negotiations to settle these claims, and a supplemental order will be submitted to the Court in the event that these Disputed Claims are resolved prior to August 31, 2009.
The Court now finds that: (a) The Settlement was arrived at through arm's length, good faith bargaining among the
parties; (b) The terms ofthe Settlement are fair, reasonable and adequate to the Class members; (c) The Notice given to the members of the Class in both Spanish and English
constituted valid and sufficient notice to all persons entitled thereto; and (d) No persons having requested that they be excluded from the Class.
2

Case 1:07-cv-01126-KAM-RER Document 134 Filed 08/14/09 Page 3 of 5 PageID #: 1064 Case 1:07-cv-01126-KAM-RER Document 133-1 Filed 07/17/09 Page 3 of 5
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: I. This Order shall apply to all past or present employees, representatives, agents and/or servants (including their successors or assigns) of all former and present employees ofVLM, Inc. d/b/a Reliable Bakery and Joseph Vitacco (collectively "VLM") employed between March 2001 and December 31, 2008 who worked as bakers, food handlers, storage handlers, landing dock employees and in other job functions related to defendants' bakery operation. (the "Class"). 2. The Stipulation of Settlement is approved in all respects as fair, reasonable and adequate to and in the best interests of the Class Members, and the parties are directed to consummate the Settlement of the Action in accordance with the terms and provisions of the Stipulation of Settlement and the Notice. 3. With the exception ofEvaristo Rosales, David Berrios, Ramon Chavez, Ikram Khan Juan Carlos Rodriguez and Alberto Hernandez, whose claims have been designated as "Disputed" pursuant to Paragraph 8(d)(i) of the March 27, 2009 Stipulation of Class Action Settlement and Procedure for Resolution , and Marcelino Carrasco, who by separate legal counsel has applied to the Court to be permitted to participate in this settlement, all remaining Class Members possessing a New York Labor Law cause ofaction, as defined in the Settlement Agreement, shall conclusively be deemed to have released, with prejudice, the VLM Defendants, and all past, present and future officers, directors, shareholders, subsidiaries, affiliates, parent corporations, reinsurers, principals, agents, employees, attorneys, accountants, or other representatives ofthe VLM Defendants from any and all claims, causes of action, rights, debts, costs, expenses, or attorney's fees, whether known or unknown, in any and all forums, which have or could have been asserted in the Complaint or which arise out of or relate to the VLM Defendants with respect to the claims that are the subject of this
3

Case 1:07-cv-01126-KAM-RER Document 134 Filed 08/14/09 Page 4 of 5 PageID #: 1065
Case 1:07-cv-01126-KAM-RER Document 133-1 Filed 07/17/09 Page 4 of 5
Action. This provision does not apply to Class Members who may possess a FLSA claim against the Defendants, and nothing in the Settlement Agreement or this Final Order shall be deemed to waive, relinquish or impair any right that a Class Member may have to seek to enforce his or her rights under the FLSA.
4. The aggregate amount of wage and benefits due and owing to the FLSA Claimants appearing on the annexed Exhibit 1 Class is $340,016.82.
5. Claimants are awarded their allowed claims, Jess a fee oftwenty percent (20%) for professional fees and disbursements.
6. In accordance with the terms ofthe Stipulation the VLM Defendants, individually or jointly shall pay the sum of$540,000.00 as follows: (a) $284,182.44 to the FLSA Class Claimants in the amounts set forth on the annexed Exhibit "A"; (b) $252,231.77 to the firm of Virginia & Ambinder, LLP Counsel for plaintiffs representing attorneys' fees; and, (c) $3,585.79 payable to the firm of Virginia & Ambinder for fees, costs and expenses associated with this matter.
7. In furtherance of Paragaph 8(d) of the Settlement Agreement, in order to secure payment ofthe amount of$540,000.00 (representing professional fees and FLSA Class Claims), on or before September 1, 2009, VLM shall execute a security agreement (chattel mortgage) and cause to be filed a UCC 1 filing statement granting to Virginia & Ambinder, LLP ("Secured Party") a security interest in all manufacturing equipment, substitutions, replacements and accessions thereto, owned by VLM, Inc. at 8118 18th Avenue, Brooklyn, New York.
7. The parties shall endeavor to resolve the outstanding disputed claims of Evaristo Rosales, David Berrios, Ramon Chavez, Ikram Khan Juan Carlos Rodriguez and Alberto Hernandez. The parties shall report to the Court on the status ofthese claims by August 31,2009. To the extent
4

Case 1:07-cv-01126-KAM-RER Document 134 Filed 08/14/09 Page 5 of 5 PageID #: 1066 Case 1:07-cv-01126-KAM-RER Document 133-1 Filed 07/17/09 Page 5 of 5

that this claim cannot be resolved by August 31, 2009, these claims shall be referred to a Court-

appointed neutral for trial in accordance with the terms ofthe Stipulation of Settlement. The parties

are directed to submit a status report to the Court on August 31, 2009 regarding the status of the

Disputed Claims.

9. In accordance with Paragraph 8(e) of the Settlement Agreement, the VLM

Defendants shall fund the Settlement Account, including professional fees and costs no sooner than

thirty-one (31) days after the date that this Final Order is So-ordered by the Court, and no later than

October 1, 2009.

10., The Court reserves jurisdiction over the Action and the plaintiffs and defendants

herein for purposes of effectuating and enforcing the Settlement.

Dated: Brooklyn, New York
-Au-gu-st- -1_4, 2009

EN f):

/S/ RER

v

U.S. MAGISTRATE JUDGE

5

 
 Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 1 of 16

U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:07−cv−01126−KAM−RER

CLOSED

Guzman et al v. VLM, Inc et al Assigned to: Judge Kiyo A. Matsumoto Referred to: Magistrate Judge Ramon E. Reyes, Jr
Magistrate Judge Ramon E. Reyes, Jr (Settlement) Cause: 29:206 Collect Unpaid Wages
Plaintiff

Date Filed: 03/16/2007 Date Terminated: 09/28/2010 Jury Demand: Defendant Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Armando Guzman

represented by Lloyd Robert Ambinder Virginia &Ambinder LLP 111 Broadway 14th Floor, Suite 1403 New York, NY 10006 (212) 943−9080 Fax: (212) 943−9082 Email: lambinder@vandallp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

LaDonna Marie Lusher Virginia &Ambinder LLP 111 Broadway Suite 1403 New York, NY 10006 212−943−9080 Fax: 212−943−9082 Email: llusher@vandallp.com ATTORNEY TO BE NOTICED

Plaintiff
Jose Garcia individually and on behalf of all other persons similarly situated who were employed by VLM, Inc. d/b/a Reliable Bakery

represented by Lloyd Robert Ambinder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LaDonna Marie Lusher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nawazish Ali Khan

represented by LaDonna Marie Lusher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marcelino Huerta

represented by LaDonna Marie Lusher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jhou A. Ovellana

represented by LaDonna Marie Lusher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nelson Andres Rios

represented by

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 2 of 16

LaDonna Marie Lusher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Class Plaintiffs

represented by Lloyd Robert Ambinder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant VLM, Inc doing business as Reliable Bakery
Defendant Joseph Vitacco

represented by Joseph M. Labuda Milman Labuda Law Group, PLLC 3000 Marcus Avenue, Suite 3W3 Lake Success, NY 11042 516−328−8899 Fax: 516−328−0882 Email: joelabuda@mllaborlaw.com ATTORNEY TO BE NOTICED
Netanel Newberger Law Offices of Richard M. Greenspan, P.C. Parkway Plaza II Elmsford, NY 10523 914−345−2100 Fax: 914−345−9690 Email: shwarma1@hotmail.com ATTORNEY TO BE NOTICED
represented by Gary J. Dmoch Gary John Dmoch &Associates 171−22 Northern Boulevard Flushing, NY 11358 718−939−4444 Fax: 718−445−2520 Email: gdmoch@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/16/2007
03/16/2007 04/10/2007

# Docket Text
1 COMPLAINT against VLM, Inc, Joseph Vitacco $ 350, filed by Armando Guzman, Jose Garcia. (Attachments: # 1 Civil Cover Sheet) (Davis, Kimberly) (Entered: 03/16/2007)
Summons Issued as to VLM, Inc, Joseph Vitacco. (Davis, Kimberly) (Entered: 03/16/2007)
2 SCHEDULING ORDER:Initial Conference set for 7/16/2007 @11:00 AM in Courtroom A,North Wing before Magistrate−Judge Ramon E. Reyes Jr. All counsel must be present, adhere to Judge Reyes' Individual Practice Rules, and bring a completed Case Management Plan to the scheduled conference (see attached order). Plaintiffs counsel is directed to confirm with defendants counsel that all necessary participants are aware of this conference. Absent exigent circumstances, requests for adjournment will not be considered unless made in writing and received at least forty−eight(48) hours before a scheduled conference.So Ordered by Judge Ramon E. Reyes Jr. on 4/10/07. (Vertus, Miriam)

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06/15/2007 06/15/2007 06/15/2007 07/12/2007 07/12/2007
07/25/2007
08/10/2007 08/13/2007 08/14/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 09/07/2007 09/07/2007

(Entered: 04/10/2007)
3 Corporate Disclosure Statement by VLM, Inc (Labuda, Joseph) (Entered: 06/15/2007)
4 ANSWER to Complaint by VLM, Inc. (Labuda, Joseph) (Entered: 06/15/2007)
5 Defendant, Joseph Vitacco's ANSWER to Complaint by Joseph Vitacco. (Dmoch, Gary) (Entered: 06/15/2007)
AMENDED SCHEDULING ORDER:Initial Conference currently set for 7/16/07 has been adjourned to 7/24/2007 @10:45 AM in Courtroom A, North Wing before Magistrate−Judge Ramon E. Reyes Jr. Ordered by Judge Ramon E. Reyes Jr. on 7/12/07. (Vertus, Miriam) (Entered: 07/12/2007)
NOTICE of Hearing Correction: re AMENDED SCHEDULING ORDER:Initial Conference currently set for 7/16/07 has been adjourned to July 25, 2007 @10:45 AM in Courtroom A, North Wing before Magistrate−Judge Ramon E. Reyes Jr. Ordered by Judge Ramon E. Reyes Jr. on 7/12/07. (Vertus, Miriam) (Entered: 07/12/2007) (Vertus, Miriam) (Entered: 07/12/2007)
6 Minute Entry for proceedings held before Ramon E. Reyes Jr.: Initial Conference Hearing held on 7/25/2007.All counsel present. Discussions held. All Discovery to be completed by 1/16/2008 (see attached order).Plaintiff to file motion for issuance of notice of pendenacy by 8/10/07, Defendant's Opposition due by 8/24/07, Plaintiff's Reply due by 8/31/07. The Pre−Class Certification discovery to be completed by 10/1/07. Class Certification Motion to be served by 10/22/07, Opposition to Class Certification Motion due by 11/12/07.,and Plaintiff's Reply due by 11/26/07. Further conferences to be scheduled upon conclusion of class certification briefing.(Tape #FTR:#(10:56:37−11:17:28).) (Vertus, Miriam) (Entered: 07/25/2007)
7 Letter MOTION for Extension of Time to File Motion for Notice of Pendency by all plaintiffs. (Lusher, LaDonna) (Entered: 08/10/2007)
ORDER granting 7 Motion for Extension of Time for plaintiffs' deadline to File a motion for issuance of notice of pendency due by 8/14/07. Ordered by Judge Ramon E. Reyes Jr. on 8/13/07. (Vertus, Miriam) Modified on 8/13/2007 (Vertus, Miriam). (Entered: 08/13/2007)
8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms by all plaintiffs.Responses due by 8/31/2007 (Attachments: # 1) (Ambinder, Lloyd) (Entered: 08/14/2007)
9 MOTION for Extension of Time to File opposition and reply papers by VLM, Inc. (Labuda, Joseph) (Entered: 08/21/2007)
10 MOTION for Extension of Time to File Response/Reply by VLM, Inc. (Labuda, Joseph) (Entered: 08/21/2007)
Motions terminated: 9 MOTION for Extension of Time to File opposition and reply papers filed by VLM, Inc.. Ordered by Judge Ramon E. Reyes Jr. on 8/21/07. (Vertus, Miriam) (Entered: 08/21/2007)
ORDER granting 10 Motion for Extension of Time to Response/Reply to plaintiff's motion for collective action certification.Defendant's Opposition due by 9/7/07, Plaintiff's Reply due by 9/21/07. Ordered by Judge Ramon E. Reyes Jr. on 8/21/07. (Vertus, Miriam) (Entered: 08/21/2007)
11 RESPONSE in Opposition re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms filed by VLM, Inc. (Labuda, Joseph) (Entered: 09/07/2007)
12 AFFIDAVIT in Opposition re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms filed by VLM, Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Labuda, Joseph) (Entered: 09/07/2007)

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09/07/2007 09/10/2007 09/11/2007 09/19/2007 09/21/2007 09/21/2007
10/03/2007 10/05/2007
10/09/2007 10/09/2007 10/10/2007 10/10/2007 10/10/2007

13 RESPONSE in Opposition re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms filed by Joseph Vitacco. (Dmoch, Gary) (Entered: 09/07/2007)
14 RESPONSE in Opposition re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms Exhibit B filed by VLM, Inc. (Attachments: # 1 Exhibit B (cont'd)) (Labuda, Joseph) (Entered: 09/10/2007)
SCHEDULING ORDER: All parties are to appear for an Oral Argument on 9/28/2007 at 9:30 AM in 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 9/11/2007. (Lee, Ilene) (Entered: 09/11/2007)
15 NOTICE GRANTING Adjournment request as per telephone conversation with defense counsel: the Oral Argument is now set for 10/5/2007 at 11:30 AM in 6C South before Judge John Gleeson. The defense counsel is directed to contact all parties involved of the new date and time. (Lee, Ilene) (Entered: 09/19/2007)
16 REPLY to Response to Motion re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms filed by all plaintiffs. (Lusher, LaDonna) (Entered: 09/21/2007)
17 AFFIDAVIT in Support re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms filed by all plaintiffs. (Attachments: # 1 Exhibit A − Guzman Affidavit# 2 Exhibit B − Garcia Affidavit# 3 Exhibit C − Orellana Affidavit# 4 Exhibit D − Rios Affidavit# 5 Exhibit E − VLM Affidavit Summary# 6 Exhibit F − Proposed Notice of Pendency# 7 Exhibit G − Consent to Joinder) (Lusher, LaDonna) (Entered: 09/21/2007)
18 NOTICE of a Change in the time for Oral Argument as per fax: The Oral Argument set for 10/5/2007 has been changed to 10:00 AM in courtroom 6C South before Judge John Gleeson. Defense counsel is directed to contact all parties involved regarding the new time. (Lee, Ilene) (Entered: 10/03/2007)
19 Minute Order. Proceedings held before Judge John Gleeson : Case called. Plaintiffs represented by Lloyd R. Ambinder, Esq. and LaDonna M. Lusher, Esq. Defendants represented by Joseph M. Labuda, Esq. and Pantelis Skulikidis, Esq. Motion Hearing held on 10/5/2007 re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms filed by Armando Guzman, Jose Garcia. The court's decision is reserved. The defendants are directed to file their supplemental submissions and responses to this motion by 10/10/2007. (Court Reporter Henry Shapiro.) (Lee, Ilene) (Entered: 10/05/2007)
20 AFFIDAVIT in Opposition re 9 MOTION for Extension of Time to File opposition and reply papers Sur reply affirmation filed by VLM, Inc. (Attachments: # 1 Exhibit A) (Newberger, Netanel) (Entered: 10/09/2007)
21 RESPONSE in Opposition re 9 MOTION for Extension of Time to File opposition and reply papers Sur reply brief filed by VLM, Inc. (Newberger, Netanel) (Entered: 10/09/2007)
22 RESPONSE in Support re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms and sur−reply to Defendants' submission of a DOL Report filed by all plaintiffs. (Lusher, LaDonna) (Entered: 10/10/2007)
23 RESPONSE in Support re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms and sur−reply to Defendants' submission of a DOL Report (with Exhibit A) filed by all plaintiffs. (Attachments: # 1 Exhibit A) (Lusher, LaDonna) (Entered: 10/10/2007)
24 RESPONSE in Opposition re 8 First MOTION to Certify Class for limited purpose of publication of FLSA notice of pendency and filing 'consent to joinder' forms, 9 MOTION for Extension of Time to File opposition and reply papers Sur Reply filed by Joseph Vitacco. (Attachments: # 1 Exhibit A: DOL Report# 2 Exhibit B: Letter to DOL dated 3/27/06) (Dmoch, Gary) (Entered: 10/10/2007)

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10/11/2007 10/15/2007 10/15/2007
10/19/2007 10/24/2007 10/24/2007 10/24/2007
10/25/2007 10/26/2007 10/26/2007
12/07/2007 12/14/2007 12/17/2007 12/19/2007 01/03/2008 01/04/2008

25 ORDER granting in part and denying in part 8 Motion to Certify Class. Please see attached Memorandum and Order. Ordered by Judge John Gleeson on October 11, 2007. (Gleeson, John) (Entered: 10/11/2007)
26 First MOTION for Extension of Time to File Motion for class certification by all plaintiffs. (Attachments: # 1) (Ambinder, Lloyd) (Entered: 10/15/2007)
ORDER granting 26 First MOTION for Extension of Time to File Motion for pre− class certification discovery due by 11/26/07, plaintiff's motion for class certification due by 12/17/07, defendant's opposition papers due by 1/7/08, and plaintiff's Reply due by 1/21/08.Ordered by JudgeRamon E. Reyes Jr. on 10/15/07. (Vertus, Miriam) (Entered: 10/15/2007)
27 NOTICE by Armando Guzman, Jose Garcia to publish notice of pendency (Attachments: # 1 Text of Proposed Order FLSA Publication Order# 2 # 3) (Ambinder, Lloyd) (Entered: 10/19/2007)
28 ORDER directing changes to proposed notice. Please see attached order. Ordered by Judge John Gleeson on October 24, 2007. (Gleeson, John) (Entered: 10/24/2007)
29 NOTICE by Armando Guzman, Jose Garcia with revised Notice of Pendency and Consent to Joinder per Court's 10−24−07 Order (Attachments: # 1 Revised Notice of Pendency per Court's 10−24−07 Order) (Ambinder, Lloyd) (Entered: 10/24/2007)
ORDER: Plaintiffs are directed to file a proposed Order authorizing publication of the revised notice and consent to joinder forms submitted today, 29 . If the defendants have any objections that have not been addressed already, they shall make them by the end of the day today. Ordered by Judge John Gleeson on October 24, 2007. (Gleeson, John) (Entered: 10/24/2007)
30 NOTICE by Armando Guzman, Jose Garcia Letter and revised Publication Order, Notice of Pendency and Consent ot Joinder (Attachments: # 1 # 2 # 3) (Ambinder, Lloyd) (Entered: 10/25/2007)
31 ORDER/Notice of Pendency (Consent to Joinder attached). Ordered by Judge John Gleeson on 10/26/07. (Fernandez, Erica) (Entered: 10/26/2007)
32 PUBLICATION ORDER: It is hereby ordered that on or before (30) days after entry of this Order, the plaintiffs or their designated representatives shall cause a copy of the Notice of Pendency and Consent to Joinder Form to be mailed by first class mail (see order for further details). Ordered by Judge John Gleeson on 10/26/07. (Fernandez, Erica) (Entered: 10/26/2007)
37 CONSENT to become party in a class action. by Nawazish Ali Khan (Piper, Francine) (Entered: 01/09/2008)
SCHEDULING ORDER:Telephone Conference set for 1/4/2008 at 11:15 AM, call to be initiated by plaintiff before Magistrate Judge Ramon E. Reyes Jr..Ordered by Magistrate Judge Ramon E. Reyes, Jr on 12/14/07. (Vertus, Miriam) (Entered: 12/14/2007)
33 First MOTION to Certify Class by Armando Guzman, Jose Garcia. Responses due by 1/17/2008 (Attachments: # 1 Notice of Motion for Class Certification, # 2 Memo of Law, # 3 Declaration of Lloyd Ambinder, # 4 Exhibit Exhibits A through I, # 5 Affirmation of Service) (Ambinder, Lloyd) (Entered: 12/17/2007)
ORDER: A response to the Motion for Class Certification, 33 , is due on or before January 17, 2008. A reply, if any, shall be due on or before January 28, 2008. Oral argument shall be held on February 8, 2008 at 9:30 AM. Ordered by Judge John Gleeson on December 19, 2007. (Gleeson, John) (Entered: 12/19/2007)
34 First MOTION for Extension of Time to File Response/Reply as to 33 First MOTION to Certify Class by VLM, Inc. (Newberger, Netanel) (Entered: 01/03/2008)
35 CONSENT to become party in a class action. by Armando Guzman, Jose Garcia (Virginia, Charles) (Entered: 01/04/2008)

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01/04/2008
01/07/2008
01/29/2008 01/29/2008 01/29/2008 01/29/2008 01/30/2008 01/31/2008
01/31/2008 01/31/2008 01/31/2008 01/31/2008

36 Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Telephone Conference held on 1/4/2008. Counsel for all parties present. Discussions held. Parties to submit consent scheduling order within thirty days of the entry of Judge Gleeson's order on the motion for class certification. If the motion is granted, the consent scheduling order must provide for the completion of all discovery and pretrial proceedings within 9 months, and provide blanks for the Court's entry of dates/time for 2 status and 1 final pretrial conference. If the motion is denied, the consent scheduling order must provide for the completion of discovery and all pretrial proceedings within 3 months, and provide a blank for the Court's entry of date/time for the final pretrial conference. (Court Reporter none.) (Reyes, Ramon) (Entered: 01/04/2008)
ORDER granting in part and denying in part 34 Motion for Extension of Time to File Response/Reply: The motion to enlarge the time in which to respond to the motion for class certification is granted to the extent that the defendant's response is due on or before January 31, 2008. A reply, if any, is due on or before February 11, 2008. Oral argument shall be held on February 15, 2008 at 9:30 AM. Ordered by Judge John Gleeson on January 7, 2008. (Gleeson, John) (Entered: 01/07/2008)
38 NOTICE by VLM, Inc re 31 Order, 32 Order, request for Court to set deadline for collective action opt−in forms to be received by the Court (Newberger, Netanel) (Entered: 01/29/2008)
39 Letter MOTION to Take Deposition from Representative of VLM by Nawazish Ali Khan, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 01/29/2008)
40 RESPONSE in Opposition re 39 Letter MOTION to Take Deposition from Representative of VLM filed by VLM, Inc. (Newberger, Netanel) (Entered: 01/29/2008)
ORDER: The plaintiffs are directed to respond in writing, on or before February 6, 2008, to the defendants' request to impose a deadline on the collection of collective action opt−in forms, 38 . Ordered by Judge John Gleeson on January 29, 2008. (Gleeson, John) (Entered: 01/29/2008)
SCHEDULING ORDER: Telephone Conference set for 1/31/2008 at 10:00 AM, call to be initiated by plaintiff,to discuss doc# 39 Letter MOTION to Take Deposition from Representative of VLM filed by Nawazish Ali Khan, Armando Guzman, Jose Garcia. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 1/30/2008. (Vertus, Miriam) (Entered: 01/30/2008)
Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Telephone Conference held on 1/31/2008. LaDonna Lusher for plaintiffs, Joseph Labuda and Netanel Newberger for defendants. Discussions held concerning plaintiffs' motion to take defendants' deposition 39 . Parties directed to contact Judge Gleeson's chambers concerning the motion as a decision on the motion will effect the oral argument date on plaintiffs' motion for class certification, which is currently scheduled to be heard before Judge Gleeson on 2/15/08. (Reyes, Ramon) (Entered: 01/31/2008)
41 MOTION for Leave to File Excess Pages to Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification and Collective Action Status by VLM, Inc. (Newberger, Netanel) (Entered: 01/31/2008)
ORDER granting 41 Motion for Leave to File Excess Pages: The motion for leave to file excess pages is granted. Ordered by Judge John Gleeson on January 31, 2008. (Gleeson, John) (Entered: 01/31/2008)
42 MEMORANDUM in Opposition to Plaintiffs' Motion for Class Certification and in Support of Defendant's Cross−Motion to Dismiss Plaintiffs' Class Action Claims filed by VLM, Inc. (Newberger, Netanel) (Entered: 01/31/2008)
43 AFFIDAVIT/DECLARATION in Opposition re 33 First MOTION to Certify Class Certification and in Support of Defendant's Cross−Motion to Dismiss Plaintiffs' Class Action Claims filed by VLM, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit A, # 3 Exhibit A, # 4 Exhibit A, # 5 Exhibit A, # 6 Exhibit A, # 7 Exhibit A, # 8 Exhibit A, # 9 Exhibit A, # 10 Exhibit A, # 11 Exhibit A, # 12 Exhibit A, # 13 Exhibit A, # 14 Exhibit A, # 15 Exhibit A, # 16 Exhibit A, # 17 Exhibit A, # 18

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 7 of 16

01/31/2008 02/01/2008 02/05/2008 02/06/2008 02/08/2008 02/11/2008 02/14/2008
02/14/2008
02/18/2008 02/18/2008

Exhibit A, # 19 Exhibit A, # 20 Exhibit A, # 21 Exhibit B, # 22 Exhibit C, # 23 Exhibit C) (Newberger, Netanel) (Entered: 01/31/2008)
44 AFFIDAVIT/DECLARATION in Opposition re 33 First MOTION to Certify Class Opposition to Plaintiffs' Motion filed by Joseph Vitacco. (Dmoch, Gary) (Entered: 01/31/2008)
45 Letter MOTION for Extension of Time to File Response/Reply as to 33 First MOTION to Certify Class, 42 Memorandum in Opposition, 44 Affidavit in Opposition to Motion, 43 Affidavit in Opposition to Motion,, by Nawazish Ali Khan, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 02/01/2008)
ORDER granting 45 Motion for Extension of Time to File Response/Reply: The plaintiffs' reply and response to the cross−motion shall be due on or before February 18, 2008. The defendants' reply in support of their cross−motion shall be due on or before February 25, 2008. Oral argument shall be held on February 29, 2008 at 11:00 AM. Ordered by Judge John Gleeson on February 5, 2008. (Gleeson, John) (Entered: 02/05/2008)
46 Letter to Judge Gleeson re; setting a bar−date to opt−in to FLSA class by Nawazish Ali Khan, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 02/06/2008)
ORDER: The parties are directed to appear for a status conference at 9:30 AM on February 14, 2008 to discuss setting a deadline for the receipt of opt−in forms. Unless persuaded otherwise by the parties at the status conference, the court is inclined to authorize a renewed notice that is amended to advise potential class members that any opt−in forms received after April 15, 2008 will not be accepted absent a showing of good cause for the delay. Ordered by Judge John Gleeson on February 8, 2008. (Gleeson, John) (Entered: 02/08/2008)
47 REPLY in Support of Notice by VLM, Inc. of request for Court to set deadline for collective action opt−in forms to be received by the Court filed by VLM, Inc. (Newberger, Netanel) (Entered: 02/11/2008)
48 Minute Entry for proceedings held before Judge John Gleeson: Case called. Plaintiffs represented by Lloyd R. Ambinder, Esq. and LaDonna M. Lusher, Esq. Defendants represented by Joseph M. Labuda, Esq. and Gary J. Dmoch, Esq. Status Conference held on 2/14/2008. The court grants the posting of a second notice of lawsuit on the defendant. The parties are directed to work out the details and agreed upon area to post such notice by 2/21/08 and a status report of these agreed upon details shall be filed to the court by 2/21/08 as well. (Court Reporter Anthony Frisolone.) (Lee, Ilene) (Entered: 02/14/2008)
ORDER: As stated on the record at today's appearance, the plaintiffs are authorized to issue a second notice substantially similar to the first notice, with the addition of language indicating that opt−in forms received after April 15, 2008 will be rejected unless good cause is shown for a delay. The notice shall direct potential plaintiffs to submit opt−in forms to the Clerk of Court and shall not inform them that they may submit these forms to the plaintiffs' law firm. The notice may inform potential plaintiffs that they can contact the Court at the Court's chambers telephone number to obtain copies of the opt−in form. The notice may be translated into Urdu and Spanish and shall be posted conspicuously, along with opt−in forms, in the defendants' workplace. The parties are directed to agree upon the content and form of the notice as well as the location and manner of its posting, and are directed to submit a written status report on February 21, 2008 advising if they have been able to do so. Ordered by Judge John Gleeson on February 14, 2008. (Gleeson, John) (Entered: 02/14/2008)
49 REPLY in Support of Plaintiffs' motion for class certification and collective action status filed by Nawazish Ali Khan, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 02/18/2008)
50 REPLY in Support of Plaintiffs' motion for class certification and collective action status filed by Nawazish Ali Khan, Armando Guzman, Jose Garcia. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F) (Lusher, LaDonna)

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 8 of 16

02/21/2008 02/21/2008 02/25/2008
02/25/2008 02/26/2008 02/28/2008
02/28/2008
02/29/2008
03/02/2008 03/20/2008 03/25/2008 03/26/2008

(Entered: 02/18/2008)
51 CONSENT to become party in a class action. by Nawazish Ali Khan, Armando Guzman, Jose Garcia (Virginia, Charles) (Entered: 02/21/2008)
52 Letter from Plaintiffs' counsel by Nawazish Ali Khan, Armando Guzman, Jose Garcia (Attachments: # 1 Status letter regarding Notice of Pendency publication, # 2 Text of Proposed Order, # 3 Notice of Pendency and Consent ot Joinder form) (Ambinder, Lloyd) (Entered: 02/21/2008)
ORDER: The plaintiffs' proposed notice and publication order are "so ordered" provided that the plaintiffs remove the stray punctuation mark after the word "joinder" on the third page of the notice; provide 718−613−2453 as the chambers number to call in order to obtain a copy of the consent form; and add language directing non−English−speakers who call chambers requesting a consent form to state their name, the docket number (07−1126), and a telephone number at which they can be contacted. Ordered by Judge John Gleeson on February 25, 2008. (Gleeson, John) (Entered: 02/25/2008)
53 CONSENT to become party in a class action. by Nawazish Ali Khan, Armando Guzman, Jose Garcia (Virginia, Charles) (Entered: 02/25/2008)
54 REPLY in Support of Class Certification Motion filed by Nawazish Ali Khan, Marcelino Huerta, Armando Guzman, Jose Garcia. (Attachments: # 1 Letter to Judge Gleeson and affidavit of Huerta in support of class certification) (Ambinder, Lloyd) (Entered: 02/26/2008)
55 REPLY to Response to Motion re 45 Letter MOTION for Extension of Time to File Response/Reply as to 33 First MOTION to Certify Class, 42 Memorandum in Opposition, 44 Affidavit in Opposition to Motion, 43 Affidavit in Opposition to Motion,,Letter MOTION for Extension of Time to File Response/Reply as to 33 First MOTION to Certify Class, 42 Memorandum in Opposition, 44 Affidavit in Opposition to Motion, 43 Affidavit in Opposition to Motion,, filed by VLM, Inc. (Attachments: # 1 Affidavit of J. Coppolo, # 2 Affidavit of Reliable Bakery employees (Part I), # 3 Affidavit of Reliable Bakery employees (Part II)) (Labuda, Joseph) (Entered: 02/28/2008)
56 RESPONSE in Opposition re 45 Letter MOTION for Extension of Time to File Response/Reply as to 33 First MOTION to Certify Class, 42 Memorandum in Opposition, 44 Affidavit in Opposition to Motion, 43 Affidavit in Opposition to Motion,,Letter MOTION for Extension of Time to File Response/Reply as to 33 First MOTION to Certify Class, 42 Memorandum in Opposition, 44 Affidavit in Opposition to Motion, 43 Affidavit in Opposition to Motion,, Supplemental timesheets of M. Huerta filed by VLM, Inc. (Labuda, Joseph) (Entered: 02/28/2008)
57 Minute Entry for proceedings held before Judge John Gleeson: Case called. Plaintiffs represented by Lloyd Ambinder, Esq. and LaDonna M. Lusher, Esq. Defendants represented by Joseph M. Labuda, Esq. and Gary J. Dmoch, Esq. Oral Argument held on 2/29/2008 re 33 First MOTION to Certify Class filed by Armando Guzman, Jose Garcia. The court's decision is reserved. A decision will be filed separately via ECF. (Court Reporter Marie Foley.) (Lee, Ilene) (Entered: 02/29/2008)
58 ORDER granting 33 Motion to Certify Class on the condition that the plaintiffs waive their claims for liquidated damages. Please see attached memorandum and order. Ordered by Judge John Gleeson on March 2, 2008. (Gleeson, John) (Entered: 03/02/2008)
59 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 03/20/2008)
104 CONSENT to become party in a class action by Jose Luis Roque. (Piper, Francine) (Entered: 09/05/2008)
60 Letter to Judge Gleeson re notice of pendency posting by Nawazish Ali Khan, Marcelino Huerta, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 03/26/2008)

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 9 of 16

03/26/2008 03/26/2008 03/28/2008 03/28/2008 03/31/2008
03/31/2008 04/02/2008 04/02/2008 04/04/2008 04/04/2008 04/04/2008 04/07/2008
04/14/2008

ORDER TO SHOW CAUSE: The parties are directed to appear for a status conference at 2:00 PM on March 27, 2008, where the defendants shall orally show cause why the relief requested in the plaintiffs' letter of March 25, 2008, 60 , should not be granted. Ordered by Judge John Gleeson on March 26, 2008. (Gleeson, John) (Entered: 03/26/2008)
61 NOTICE of Status Conference Adjournment as per fax from defense counsel: The new status conference date is set for Monday 3/31/2008 at 11:00 AM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 03/26/2008)
62 Letter to Judge Gleeson in response to Plaintiffs' letter re notice of pendency posting by VLM, Inc (Newberger, Netanel) (Entered: 03/28/2008)
63 AFFIDAVIT/AFFIRMATION re 62 Letter to Judge Gleeson in response to Plaintiffs' letter re notice of pendency posting by VLM, Inc (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F Part One, # 7 Exhibit F Part Two) (Newberger, Netanel) (Entered: 03/28/2008)
64 Minute Entry for proceedings held before Judge John Gleeson: Case called. Plaintiffs represented by Lloyd Ambinder, Esq. Defendants represented by Joseph Labuda, Esq.; Gary Dmoch, Esq.; and Netanel Newberger, Esq. Status Conference held on 3/31/2008 in re: letter application regarding Notice of Pendency Posting filed by defendants. The application was GRANTED in part and DENIED in part. The Court grants: (1) Defendants shall post a second set of opt−in forms by the original time−clock location. (2) Photographs shall be taken of this location and supplied to plaintiff's counsel and to the court. (3) The time−clock shall not be moved again from its current location. A set of opt−in forms shall remain by the time−clock. (4) Additional photographs shall be taken from the old time−clock location and including the area around that location. These photos shall be supplied to the court for a 360 degree view of the factory area. (5) The opt−in deadline has been extended to May 31, 2008. (6) Defense counsel shall serve defendant, Joseph Vitacco, a copy of today's conference transcript by no later than April 4, 2008. (7) Defendants are to comply with the court's order today and subsequently. If not, the defendant Joseph Vitacco may be held in contempt of the court through an order to show cause. The Court DENIES (1) Defendant's application to move the time−clock again. (2) Plaintiff's application to visit and inspect the factory premises. (Court Reporter Nicole Warren.) (Lee, Ilene) (Entered: 03/31/2008)
65 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 03/31/2008)
66 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 04/02/2008)
105 CONSENT to become party in a class action. by Jhou A. Ovellana (Piper, Francine) (Entered: 09/08/2008)
67 Letter to Judge Gleeson Regarding Notices by Joseph Vitacco (Dmoch, Gary) (Entered: 04/04/2008)
68 Letter to Judge Gleeson Regarding Forms by Joseph Vitacco (Dmoch, Gary) (Entered: 04/04/2008)
69 Letter to Judge Gleeson requesting that opt−out form be placed in the Notice of Pendency by VLM, Inc (Attachments: # 1 Exhibit A) (Newberger, Netanel) (Entered: 04/04/2008)
ORDER: The plaintiffs are directed to respond to VLM's April 4, 2008 letter regarding the notice of pendency for the Rule 23 class action, 69 , on or before April 14, 2008. I am inclined, unless the plaintiffs persuade me otherwise, to authorize notice substantially identical to the defendant's proposed notice including opt−out forms, but in order to minimize confusion, without any opt−in forms or language instructing the plaintiffs how to file opt−in forms. Ordered by Judge John Gleeson on April 7, 2008. (Gleeson, John) (Entered: 04/07/2008)
70 REPLY in Opposition to Defendants' Letter Application for an Opt−Out Form filed by all plaintiffs. (Attachments: # 1 Exhibit A) (Lusher, LaDonna) (Entered:

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 10 of 16

04/15/2008
04/21/2008 04/21/2008 04/22/2008 04/22/2008 04/22/2008 04/23/2008 04/25/2008 05/02/2008 05/02/2008 05/06/2008 05/08/2008 05/08/2008
05/09/2008
05/09/2008 05/12/2008 05/12/2008

04/14/2008)
ORDER: The notice of pendency of the Rule 23 class action shall be substantially identical to the defendants' proposed notice, and shall include an opt−out form, but in order to minimize confusion it shall not include any language instructing the plaintiffs how to file opt−in forms and shall not include an opt−in form. Ordered by Judge John Gleeson on April 15, 2008. (Gleeson, John) (Entered: 04/15/2008)
71 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 04/21/2008)
72 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 04/21/2008)
73 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 04/22/2008)
74 CONSENT to become party in a class action by Nelson Andres Rios. (Abdallah, Fida) (Entered: 04/22/2008)
106 CONSENT to become party in a class action by Fidel Martinez. (Piper, Francine) (Entered: 09/08/2008)
107 CONSENT to become party in a class action by Victorino Barrera Hernandez. (Piper, Francine) (Entered: 09/08/2008)
108 CONSENT to become party in a class action by Fernando Herrera. (Piper, Francine) (Entered: 09/08/2008)
75 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 05/02/2008)
76 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 05/02/2008)
77 Letter to Judge Gleeson regarding improper solicitation of employees by VLM, Inc (Attachments: # 1 Exhibit A) (Newberger, Netanel) (Entered: 05/06/2008)
78 Letter from Lloyd ambinder in response to Newberger 5/6/08 letter by Marcelino Huerta (Ambinder, Lloyd) (Entered: 05/08/2008)
ORDER: The defendants' motion to change the deadline for opt−in forms to be received, 77 , is denied. The defendants' motion to "impose a bar against any people who have opted into this action from soliciting other employees to join this matter," 77 , is denied without prejudice to renewal upon an application setting forth the legal basis on which such relief is sought and proposing an order which makes clear exactly what conduct is prohibited. Ordered by Judge John Gleeson on May 8, 2008. (Gleeson, John) (Entered: 05/08/2008)
82 OPT−OUT FORM filed by Fernando Flores, Javier Chavez San German, Arnold Chai, Alberto Hernandez, Jose Acevedo, Juan Carlos Rodriguez, Jesus Martinez Garcia, Diego Marulanda, Fernando Galindo Gonzalez. (Piper, Francine) (Entered: 05/21/2008)
83 OPT OUT FORMS filed by MaryAnn Vitacco, Vito Vitale, Chuadry Igbal Haji, Jarod Coppolo, Raheel Abbas, Catherine Maher, Jameed Baskh. (Piper, Francine) (Entered: 05/21/2008)
81 Opt−Out Forms filed by Joseph Livorsi, Naseeb Ahmad, Nadine DeMonda and Anton Borgic. (Piper, Francine) (Entered: 05/19/2008)
84 OPT−OUT FORMS filed by Danile Lazcano Garcia, Luis Perez, Francisco Cecilio Campos, F [rancis] co Javier Joya, Eulalio Lopez, Gabriel Segovia, Vicente Lopez, Julio Martinez Garcia, Braulio Primero Analco, Evaristo Rosales, David Zainos,

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 11 of 16

05/13/2008 05/14/2008 05/15/2008 05/15/2008 05/16/2008
05/16/2008
05/19/2008 05/19/2008 05/20/2008
05/20/2008 05/22/2008 05/23/2008 05/27/2008
05/27/2008 05/30/2008 06/04/2008 06/06/2008 06/09/2008 06/12/2008 06/12/2008 06/13/2008

Omar Viscarra, Carlos Martinez, Guillermo Hernandez Esteban. (Piper, Francine) (Entered: 05/21/2008)
85 OPT−OUT FORM filed by Jorge Torres, Guido N. Aguilar, Josue Gonzalez, Albaro Lopes. (Piper, Francine) (Entered: 05/21/2008)
91 CONSENT to become party plaintiff in a class action. by Nawazish Ali Khan (Piper, Francine) (Entered: 05/23/2008)
86 OPT−OUT FORM filed by Iasadaq Hussain, Qurban Baig. (Piper, Francine) (Entered: 05/21/2008)
90 OPT−OUT FORMS filed by Nicolas Hernandez, Oswaldo Cordero, Luis Mendoza, Daniel Marino. (Piper, Francine) (Entered: 05/23/2008)
79 Proposed Scheduling Order by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia, VLM, Inc, Joseph Vitacco (Attachments: # 1 Proposed Order Regarding Scheduling) (Lusher, LaDonna) (Entered: 05/16/2008)
80 SCHEDULING ORDER: All Discovery to be completed by 12/1/2008. Final Pretrial Conference set for 12/5/2008 at 10:00 AM before Magistrate Judge Ramon E. Reyes Jr., In person Status Conference set for 11/5/2008 at 10:00 AM in Courtroom A North before Magistrate Judge Ramon E. Reyes Jr., In person Status Conference set for 10/2/2008 at 10:00 AM in Courtroom A North before Magistrate Judge Ramon E. Reyes Jr. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 5/16/2008. (Vertus, Miriam) (Entered: 05/19/2008)
88 OPT−OUT FORM filed by Joseph Savattore, Provvidenza Gebbia, Frank Vitacco, Andrea Plastina, Joseph Vitacco. (Piper, Francine) (Entered: 05/21/2008)
Incorrect Case/Document/Entry Information. Document no 87 has been deleted due to duplicated document of no. 88. (Piper, Francine) (Entered: 05/22/2008)
89 OPT−OUT FORMS filed by Anthony Meola, William Maggio, Anthony Tart, Jerry Mandaro, Christopher Curigle, Christopher Ernandis, Anthony Torturella. (Piper, Francine) (Entered: 05/21/2008)
92 OPT−OUT FORM filed by Gevani Chaj (Piper, Francine) (Entered: 05/27/2008)
93 OPT−OUT FORM filed by Aneta Macikonska, Majid Khan, Cristine Polito. (Piper, Francine) (Entered: 05/28/2008)
94 OPT−OUT FORM filed by Martha Martinez, Carmelo Scinndra. (Piper, Francine) (Entered: 05/28/2008)
95 OPT−OUT FORM filed by Andrea Viola, Thomas Ruff, Peter Ruggeri, Angela Bartolone, Michael Bolino, Salvatore Siawgula, Giovanni Lodvca, Anthony Peduto. (Piper, Francine) (Entered: 06/02/2008)
97 OPT−OUT FORM filed by Francisco Celderon Zacatelco. (Piper, Francine) (Entered: 06/04/2008)
96 OPT−OUT FORM filed by Marcelino Carrasco. (Piper, Francine) (Entered: 06/02/2008)
98 OPT−OUT FORM: by Carmela Loduca (Lagana, Michael) (Entered: 06/11/2008)
99 OPT−OUT FORM by Maria Gebbia (Lagana, Michael) (Entered: 06/11/2008)
102 OPT−OUT FORMS filed by Fernando Peralta, Margarito Cruz, and Louis Munive (Piper, Francine) (Entered: 06/17/2008)
100 OPT−OUT FORM by Ernesto Lopez (Lagana, Michael) (Entered: 06/12/2008)
101 OPT−OUT FORM for Thomas J. Dufficy (Lagana, Michael) (Entered: 06/12/2008)
103 OPT−OUT FORM filed by Emerson Gonzalez and Pablo Lazcano Sanchez. (Piper, Francine) (Entered: 06/23/2008)

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 12 of 16

09/10/2008 09/10/2008 10/02/2008
10/06/2008 11/03/2008 11/03/2008 11/03/2008 11/07/2008 11/07/2008 11/14/2008
11/20/2008 11/21/2008 11/21/2008 11/21/2008

109 OPT−IN FORM filed by Jose Maximo Garcia. (Piper, Francine) (Entered: 09/10/2008)
Judge Kiyo A Matsumoto added. Judge John Gleeson no longer assigned to case. (Vaughn, Terry) (Entered: 09/10/2008)
110 Minute Order for proceedings held before Magistrate Judge Ramon E. Reyes, Jr: Status Conference held on 10/2/2008. Counsel for all parties present. Ruling re 39 Motion to Take Deposition "terminating as moot".The parties report that paper discovery is largely completed but for request that may arise during depositions. Twelve employees have been identified as belonging to the Rule 33 class. Parties in process of scheduling defendant's depositions (Messrs. Vitacco &Coppolo); plaintiff's depositions (12 "option" &sampling of Rule 23 class members. Parties discussing settlement. Further proceedings pursuant to existing schedule 80 . The 11/5/08 conference will be a Status/Settlement conference. (Tape #10:13:44 −10:31:43.) (Vertus, Miriam) (Entered: 10/03/2008)
111 CONSENT to become party in a class action. by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia (Ambinder, Lloyd) (Entered: 10/06/2008)
112 Letter re: status conference and discovery by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia (Lusher, LaDonna) (Entered: 11/03/2008)
113 MOTION to Adjourn Conference by VLM, Inc. (Labuda, Joseph) (Entered: 11/03/2008)
ORDER granting 113 Motion to Adjourn 11/5/08 Status Conference to 11/13/2008 at 12:30 PM in Courtroom A North before Magistrate Judge Ramon E. Reyes Jr. (Vertus, Miriam) (Entered: 11/03/2008)
114 Letter MOTION to Adjourn Conference on 11−8−08 from 12:30 to 4:30 pm by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Ambinder, Lloyd) (Entered: 11/07/2008)
ORDER re 114 Letter MOTION to Adjourn TIME of Status Conference. The 11/13/2008 Status Conference is moved from 12:30 PM to 4:30 PM. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 11/7/2008. (Rivera, Marta) (Entered: 11/07/2008)
Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Status Conference held on 11/14/2008. Lloyd Ambinder and LaDonna Lusher for plaintiffs, Joseph Labuda for defendant. Discussions held. Parties to submit letter briefs on opt−in deposition issue by 11/21/08. 12/5 conference adjourned. final pretrial conference will be hled on 12/16/06 at 2:00 p.m. Discovery extended to 12/16/08. Parties urged to discuss settlement and structure of settlement conference, and advise the court promptly whether settlement will be discussed at the 12/16 conference. (Tape #4:37:07−5:35:32.) (Reyes, Ramon) (Entered: 11/14/2008)
115 Letter MOTION for Protective Order precluding depositions of every opt−in Plaintiff by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 11/20/2008)
116 RESPONSE in Opposition re 115 Letter MOTION for Protective Order precluding depositions of every opt−in Plaintiff filed by VLM, Inc. (Attachments: # 1 Exhibit A) (Newberger, Netanel) (Entered: 11/21/2008)
117 RESPONSE in Opposition re 115 Letter MOTION for Protective Order precluding depositions of every opt−in Plaintiff filed by Joseph Vitacco. (Dmoch, Gary) (Entered: 11/21/2008)
ORDER granting in part and denying in part 115 Motion for Protective Order. After reviewing the parties submissions and considering their arguments, the Court will permit defendants to take the depositions of the two named plaintiffs and five opt−in plaintiffs (selected at defendants' discretion), prior to the 12/16/08

Case: 1:07-cv-01126-KAM-RER As of: 05/24/2012 02:56 PM EDT 13 of 16

12/09/2008
12/16/2008
12/17/2008 12/17/2008 12/22/2008 12/31/2008 01/03/2009
01/20/2009 01/20/2009 01/21/2009 01/29/2009

settlement conference. Each opt−in deposition will be limited to 3.5 hours. Should the case not settle at the 12/16/08 conference, the Court will discuss with the parties the scheduling of further depositions. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 11/21/08. (Reyes, Ramon) (Entered: 11/21/2008)
ORDER. Having been notified that settlement will be discussed at the upcoming conference on 12/16/2008, the parties are directed to submit, BY FAX, confidential settlement letters to the court by 12/12/2008. Given the unusual nature of this litigation, these letters should reflect, to the extent possible, the parties' bottom line position on settlement. Counsel shall ensure that persons with settlement authority are available during the conference. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 12/9/2008. (Rodriguez, Adam) (Entered: 12/09/2008)
Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Settlement Conference held on 12/16/2008. All counsel present. Discussion held. Case not settlement. Defendant's letter motion of Protective Order due by 12/19/08; Plaintiff's reply due by 12/24/08. Discovery to close on 1/29/2009. In person Final Pretrial Conference set for 1/29/2009 at 2:00 PM in Courtroom A North Wing before Magistrate Judge Ramon E. Reyes Jr. (Vertus, Miriam) (Entered: 12/16/2008)
118 First MOTION for Extension of Time to File Letter Motion for Protective Order by VLM, Inc. (Newberger, Netanel) (Entered: 12/17/2008)
ORDER granting 118 Motion for Extension of Time to File. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 12/17/08. (Reyes, Ramon) (Entered: 12/17/2008)
119 Letter MOTION for Protective Order by VLM, Inc. (Labuda, Joseph) (Entered: 12/22/2008)
120 RESPONSE in Opposition re 119 Letter MOTION for Protective Order filed by all plaintiffs. (Lusher, LaDonna) (Entered: 12/31/2008)
ORDER denying 119 Motion for Protective Order. Defendants (and the individual witnesses) have not established good cause for the protective order pursuant to FRCP 26(c). The information sought (whether non−class members and managers were paid cash wages and whether they know if VLM reported those cash wages on the employees/managers W−2 forms) is not privileged. Further, the information sought is relevant (to establish that defendants "engaged in a pattern and practice of paying their employees in cash on a regular basis 'off the books'"). The information is also not sought for purposes of harassment, oppression, or embarrassment. Moreover, plaintiffs have proffered that they will not inquire of the witnesses whether they reported their cash wages on their personal tax returns. The cases cited by defendants are inapposite, and their objections to the information sought are overruled. Other objections to particular questions asked will be handled as they arise at each deposition. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 1/4/08. (Reyes, Ramon) (Entered: 01/03/2009)
121 First MOTION for Discovery Production of Defendants' witnesses for depostion by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Ambinder, Lloyd) (Entered: 01/20/2009)
122 RESPONSE in Opposition re 121 First MOTION for Discovery Production of Defendants' witnesses for depostion filed by Joseph Vitacco. (Dmoch, Gary) (Entered: 01/20/2009)
ORDER granting 121 Motion for Discovery. Defendants to provide plaintiffs with dates for the requested depositions no later than January 23, 2009. Unless the parties agree otherwise, the depositions will not be stayed pending settlement discussions. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 1/21/2009. (Reyes, Ramon) (Entered: 01/21/2009)
Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Initial Pretrial Conference held on 1/29/2009. Lloyd Ambinder, Esq and LaDonna Lusher, Esq for plaintiffs, Joseph Labuda, Esq for defendants VLM, Inc., Gary Dmoch,Esq for defendant for Joseph Vitacco. Discussions held. Rulings on the record. Parties to split the cost of transcript. (Contact the ESR Dept.

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01/29/2009 02/06/2009 02/16/2009 02/19/2009
02/24/2009
03/16/2009 03/16/2009 03/25/2009 03/26/2009 03/31/2009 04/06/2009 04/06/2009 04/07/2009
04/08/2009

(718)613−2390 to order the transcript) Tape #2:18:05−2:23:32 cont. 3:11:54 −3:40:03.) (Vertus, Miriam) (Entered: 01/29/2009)
SCHEDULING ORDER: In person Final Pretrial Conference set for 5/14/2009 @2:00 PM before Magistrate Judge Ramon E. Reyes Jr. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 1/29/2009. (Vertus, Miriam) (Entered: 01/29/2009)
123 Letter MOTION for Protective Order by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 02/06/2009)
124 Letter regarding notice of settlement of matter in principal by VLM, Inc (Newberger, Netanel) (Entered: 02/16/2009)
ORDER re 124 Letter regarding notice of settlement of matter in principal filed by VLM, Inc. The parties are directed to file a stipulation of discontinuance no later than 3/16/09. 5/14/2009 Final Pretrial conference is adjourned sine die. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 2/19/2009. (Vertus, Miriam) (Entered: 02/19/2009)
126 USCA MANDATE − Petitioners VLM Inc. and Joseph Vitacco move, pursuant to Federal Rules of Civil Procedure 23(f), for leave to appeal the District Court's order granting Respondents' motion for class certification. It is Ordered that the petition is denied because an immediate appeal is unwarranted. Issued as Mandate: 2/03/09. USCA#08−1395−mv. (McGee, Mary Ann) (Entered: 03/19/2009)
125 Letter MOTION for Extension of Time to File stipulation of discontinuance by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 03/16/2009)
ORDER granting 125 Motion for Extension. The parties are directed to file a stipulation of discontinuance no later than 3/25/09. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 3/16/2009. (Rodriguez, Adam) (Entered: 03/16/2009)
127 Letter MOTION for Extension of Time to File stipulation of settlement by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 03/25/2009)
ORDER granting 127 Letter MOTION for extension of time to file stipulation of settlement by March 27, 2009. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 3/26/2009. (Rivera, Marta) (Entered: 03/26/2009)
SCHEDULING ORDER: Telephone Conference set for 4/6/2009 at 10:15 AM before Judge Reyes. Plaintiffs' counsel is to initiate the call and dial chambers when all parties are on the line. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 3/31/2009. (Rivera, Marta) (Entered: 03/31/2009)
Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Telephone Conference held on 4/6/2009. All counsel present by telephone. Discussions held. Rulings on the record. Fairness hearing set for 6/16/09@10:30 AM (ESR Dept.(SMG) FTR Folder) (Vertus, Miriam) (Entered: 04/07/2009)
SCHEDULING ORDER:Fair Hearing set for 6/16/2009 @10:30 AM in Courtroom A North before Magistrate Judge Ramon E. Reyes Jr. (Vertus, Miriam) (Entered: 04/07/2009)
128 CONSENT ORDER: The parties hereby consent to have Magistrate Judge Ramon E. Reyes, Jr. oversee all aspect of the settlement process including terms of the Implementing Order, and conducting the Fairness Hearing. Judge Reyes shall not participate in, or oversee any aspect of the Rule 23 Disputed Claim process.So Ordered by Magistrate Judge Ramon E. Reyes, Jr on 4/7/2009. (Vertus, Miriam) (Entered: 04/07/2009)
ORDER re 128 Consent Order in which the parties consent to the action remaining before Judge Reyes for all purposes. The court hereby approves and "So Orders" the parties' Consent Order. Ordered by Judge Kiyo A. Matsumoto on 4/8/2009. (Matsumoto, Kiyo) (Entered: 04/08/2009)

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04/08/2009 04/17/2009
05/12/2009 05/12/2009 06/16/2009
07/17/2009 08/14/2009
09/29/2009 01/13/2010 01/14/2010
01/25/2010 01/26/2010 02/17/2010 02/18/2010

129 ORDER re 128 Consent Order. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 4/8/2009. (Attachments: # 1 Ex. A − Notice of Settlement, # 2 Ex. B − Notice, # 3 Ex. C − Proof of Claim) (Rodriguez, Adam) (Entered: 04/08/2009)
130 TRANSCRIPT of Proceedings held on 1/29/09, before Judge Reyes. Court Transcriber ARIA TRANSCRIPTIONS, Telephone number 215−767−7700. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/8/2009. Redacted Transcript Deadline set for 5/18/2009. Release of Transcript Restriction set for 7/16/2009. (Hong, Loan) (Entered: 04/17/2009)
131 Letter MOTION to Adjourn Conference regarding pretrial matters by Nawazish Ali Khan, Marcelino Huerta, Jhou A. Ovellana, Nelson Andres Rios, Armando Guzman, Jose Garcia. (Lusher, LaDonna) (Entered: 05/12/2009)
ORDER granting 131 Motion to Adjourn 5/14/2009 final Pre−trial Conference sine die. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 5/12/2009. (Vertus, Miriam) (Entered: 05/13/2009)
132 Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Fair Hearing Settlement Conference held on 6/16/2009. Plaintiffs represented by Lloyd R. Ambinder, Esq. and LaDonna M. Lusher, Esq. Defendants represented by Joseph M. Labuda, Esq. and Gary J. Dmoch, Esq. Discussions held. Parties to submit a final order of settlement due on 7/16/2009. The Court rules that proposed settlement is fair. No objections to settlement were filed and no objections made on the record. (Tape #10:50:37 − 11:00:06.) (Vertus, Miriam) (Entered: 06/17/2009)
133 SETTLEMENT AGREEMENT Final Order by Jose Garcia, Armando Guzman, Marcelino Huerta, Nawazish Ali Khan, Jhou A. Ovellana, Nelson Andres Rios (Attachments: # 1 Proposed Order, # 2 Exhibit A) (Lusher, LaDonna) (Entered: 07/17/2009)
134 ORDER re 133 Settlement Agreement. Having previously found that the proposed settlement is fair and reasonable (especially in light of the fact that no objections to said settlement were filed or raised at the 6/16/09 fairness hearing), the Final Order approving the settlement in this matter is So Ordered. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 8/14/2009. (Rodriguez, Adam) (Entered: 08/14/2009)
ORDER terminating 123 Motion for Protective Order. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 9/29/2009. (Vertus, Miriam) (Entered: 09/30/2009)
SCHEDULING ORDER:The Court will initiate the Telephone Conference set for 1/14/2010 at 11:00 AM before Magistrate Judge Ramon E. Reyes Jr. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 1/13/2010. (Vertus, Miriam) (Entered: 01/13/2010)
Minute Entry for proceedings held before Magistrate Judge Ramon E. Reyes, Jr:Telephone Conference held on 1/14/2010. Plaintiffs represented by Lloyd R. Ambinder, Esq.,Defendants represented by Joseph M. Labuda, Esq. Discussions held. Status Report due by 1/20/2010. (Tape #10:59:00−11:04:08.) (Vertus, Miriam) (Entered: 01/14/2010)
135 STATUS REPORT re settlement of disputed claims by Jose Garcia, Armando Guzman, Marcelino Huerta, Nawazish Ali Khan, Jhou A. Ovellana, Nelson Andres Rios (Ambinder, Lloyd) (Entered: 01/25/2010)
STATUS REPORT ORDER re 135 Status Report re settlement of disputed claims. Status report on two remaining disputed claims due on 2/26/2010. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 1/26/2010. (Rivera, Marta) (Entered: 01/26/2010)
136 First MOTION for Settlement order by Class Plaintiffs. (Attachments: # 1 Exhibit 1−25−10 Status report letter) (Ambinder, Lloyd) (Entered: 02/17/2010)
137 Letter to Judge Reyes regarding payment to class members by VLM, Inc (Labuda, Joseph) (Entered: 02/18/2010)

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09/21/2010 09/24/2010 09/28/2010

ORDER: The parties are directed to file a stipulation of dismissal no later than 9/24/10. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 9/21/2010. (Vertus, Miriam) (Entered: 09/21/2010)
138 STIPULATION of Dismissal by Jose Garcia, Armando Guzman, Marcelino Huerta, Nawazish Ali Khan, Jhou A. Ovellana, Class Plaintiffs, Nelson Andres Rios (Lusher, LaDonna) (Entered: 09/24/2010)
139 ORDER DISMISSING CASE: SO ORDERED. Ordered by Judge Kiyo A. Matsumoto on 9/27/2010. (Williams−Jackson, Sandra) (Entered: 09/28/2010)