IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ERIK JOHNSON and MATTHEW TOPORSKI, on )

behalf of themselves and all other persons similarly )

situated, known and unknown, )

) Case No. 12 C 1018

Plaintiffs, )

) Judge Gettleman

v. )

) Magistrate Judge Keys

PINSTRIPES, INC., PINSTRIPES NORTHBROOK, )

LLC, and DALE R. SCHWARTZ, )

)

Defendants. )

REPLY IN SUPPORT OF PLAINTIFFS’ COMBINED MOTION

FOR CLASS CERTIFICATION OF THEIR IMWL CLAIMS AND 

FOR COLLECTIVE ACTION NOTICE UNDER THE FLSA

Plaintiffs, for themselves and similarly-situated persons, submit their reply in support of 

their combined motion for class certification under the Illinois Minimum Wage Law (IMWL), 

and for notice under the Fair Labor Standards Act (FLSA), for Defendants’ failure to pay 

minimum wages, and state as follows:

Douglas M. Werman Jamie G. Sypulski

Maureen A. Salas Law Office Jamie Golden Sypulski

David E. Stevens 150 South Michigan Avenue, Suite 1000

Werman Law Office, P.C. Chicago, Illinois 60601

77 West Washington, Suite 1402 312/332-6202

Chicago, Illinois 60602

312/419-1008

Attorneys for Plaintiffs
1

I. INTRODUCTION

Defendants characterize their failure to properly pay their tipped employees the lawful 

tip-credit wage rate effective in 2010 as an “honest mistake.” Perhaps that may be true, but what 

is absolutely false is their claim that they “voluntarily and promptly” corrected that “mistake,” or 

the “mistake” of unlawfully calculating the overtime rate of tipped employees. 

Plaintiff Johnson informed Defendants that they had failed to properly pay tipped 

employees, by e-mail and in two different meetings, in January and February 2011. Defendants’ 

“prompt” response was to do nothing: they did not pay their tipped employees the owed wages,

nor did they attempt to determine if they had made other mistakes in paying those employees. 

They had. In July 2011, six months after Plaintiff Johnson informed Pinstripes of the improper 

wage rate, and a year after that rate had gone into effect, Pinstripes received notice from the 

Illinois Department of Labor that the Northbrook Pinstripes would be audited. 

Laura Kilburg immediately wrote an e-mail to Defendant Schwartz, which read in part: “I 

didn't want to ask too many questions [of the IDOL auditor] in case it was just Northbrook I 

didn't want her looking into South Barrington as well. She wanted to go back to 2008, but I told 

her our records on Paylocity only went back to 2009 and she was fine with that. I'm sure she'll 

see that we did not pay minimum wage to the servers during that wage increased time. I do not 

know how to avoid the IL Dept of Labor. I hope to find out during the audit who the employee 

is.” Ex. D, Kilburg e-mail Schwartz re IDOL Audit, PINJ 8118-19 (emphasis added). 

The IDOL auditor did perform a payroll audit in August 2011, of Northbrook employees 

only, and found not only that Defendants had failed to pay tipped employees the proper tip-credit 

wage rate for the preceding 13 months, but that they had also unlawfully calculated overtime pay 
2

for the tipped employees. But, Defendants were successful in hiding from the IDOL auditor that 

they had another restaurant in South Barrington with the same unlawful pay practices. 

Defendants’ response is silent as to whether that was an honest mistake.

Even after the IDOL audit, Defendants did not pay the owed wages to the Northbrook 

tipped employees. On November 21, 2011, Defendants received a “NOTICE OF LEGAL 

ACTION” letter from the IDOL stating that, because Defendants had failed to comply, the 

Department was referring the matter to the Attorney General’s office for court action. Ex. C, 

IDOL Audit Documents, PINJ 5769. It was only then, months after the August 4 audit, and 

close to one year after Plaintiff Johnson apprised Defendants of the unlawful wage rates, did 

Defendants finally pay their Northbrook tipped employees – or at least some of them. 

In the meantime, Defendants knew that they had the same unlawful pay practices at the 

South Barrington Pinstripes. They “promptly” did nothing there too. Only on March 29, 2012, 

some 13 or 14 months after Plaintiff Johnson report the violation, 21 months after the minimum 

wage law changed, and six weeks after this lawsuit had been filed, did Defendants make certain 

payments to tipped employees at South Barrington and some tipped employees at Northbrook. 

Ex. B, Rule 30(b)(6) Dep. (Soukop 2d) 74:24 – 76:21; Ex. B, Rule 30(b)(6) Dep. (Soukop 1st) 

172:8-20 (no one other than Pinstripes determined whether the “internal audit” correctly paid all 

owed wages); see also Ex. H, Pinstripes Check Register, dtd 3/29/2012 (under seal). 

Neither the IDOL, nor any court, was involved in that March 2012 payment, and 

Defendants paid no liquidated damages or two percent additional damages to the affected tipped 

employees. Ex. B, Rule 30(b)(6) Dep. (Soukop 2d) 23:9 – 23:19. Because such damages cannot 

be waived by employees in an employer’s attempt at private resolution, all employees that were 
3

purportedly paid in March 2012 at South Barrington and Northbrook retain the right to seek 

those damages, as well as any other wages that may have been missed in Defendants’ effort to 

“promptly” correct their “brief, honest mistake.” Defs.’ Mem. Opp. at i, 11. 

The record before this Court reflects in Pinstripes a bumbling, feckless employer that 

failed to apprise itself of the most fundamental obligations of federal and state wage laws. And 

of course, employers are not excused from their actions, or inaction, taken out of ignorance. But 

when an employer knowingly fails to pay their employees, particularly low-wage employees, 

knowingly withholds material information from a state agency empowered by the Illinois 

legislature to enforce the wage laws on behalf of those employees, and then pays those 

employees only under compulsion of litigation, actual or threatened, such an employer has burst 

the bounds of ignorance and fecklessness, and entered deeply into the territory of willful, 

knowing and unlawful conduct. 

Defendants’ response to Plaintiffs’ combined motion likewise reflects their view of 

‘honest mistakes.’ Both as to the substantive laws, and as to the showing necessary for class 

certification and for Section 216(b) collective action notice, Defendants either do not know or do 

not care to learn. Defendants nonetheless make crucial concessions that demonstrate that 

Plaintiffs’ combined motion should be granted.

Plaintiffs allege that Defendants violated federal and state minimum wage and overtime 

laws in the following manner: (1) utilizing tipped employees paid less than minimum wage to 

perform duties outside the tipped occupation; (2) failing to inform tipped employees of the 

provisions of Section 3(m) of the FLSA; (3) utilizing gratuities of tipped employees, what 

Defendants call the “house tip,” for their own purposes, in violation of Section 3(m); and as 
4

noted above (4) failing to pay South Barrington tipped employees, and certain Northbrook tipped 

employees, proper tip-credit and overtime wages, which includes liquidated damages under the 

FLSA and two percent damages under the IMWL.

Regarding their use of tipped employees to perform non-tipped duties, Defendants admit 

that they required tipped employees to perform extensive “sidework” duties, duties that are 

amply established in Pinstripes training, operation and SOP manuals, and that while performing 

that work Defendants paid tipped employees the sub-minimum, tip-credit wage rate. 

For purposes of Plaintiffs’ motion, these admissions are enough. Defendants’ practice of 

requiring tipped employees to perform these duties at less than minimum wage is the “glue” that 

satisfies commonality and results in common issues predominating over individual ones in the 

claim. While Defendants assert that the performance of the “sidework” duties by tipped 

employees is permissible, and does not result in the forfeiture of the tip-credit, that is of course 

an issue for this Court on the merits. However this Court will decide that question, that decision

will resolve “in one stroke” the issue of liability on that claim for all tipped employees. 

Defendants also failed to comply with the FLSA Section 3(m) requirement that 

employees be “informed” of the provisions of that subsection by the employer before that 

employer can take the tip credit on the wages if those employees. While their coverage of this 

issue is scant, Defendants contend that Plaintiffs must prove this claim, and in order to do so 

must offer testimony from each class member. It is, however, black-letter law that the Section 

3(m) tip credit is an exception to an employer’s minimum wage obligation, and as such the 

employer has the burden of establishing its entitlement to take that credit. Furthermore, 

establishing FLSA violations by representative evidence goes back as far as the Supreme Court’s 
5

decision in Mt. Clemens in 1946.

Plaintiffs also claim that Defendants took a portion of the “service charge” earned by 

tipped employees at banquet events, called “house tips” by Defendants, and unlawfully used 

them for their own purposes. (When working events, tipped employees are paid the tip-credit 

wage rate.) Plaintiffs make this claim because portions of the “service charge” are paid to the 

tipped employees working those events, and the non-tipped event sales staff, and thus never 

becomes part of Pinstripes’s gross receipts. But even assuming the 20 percent event charge is a 

bona fide service charge, the proceeds of that service charge are not tips, and cannot be used as 

tip credit toward minimum wage under Section 3(m). In other words, if this Court determines 

that the event service charge is a genuine service charge, then Defendants were obligated to pay 

tipped employees working the events full minimum wage. They did not. 

Plaintiffs have met the prerequisites of Rule 23 and the ‘modest factual showing’ 

standard of Section 16(b), and ask that the Court grant their motion.

II. LEGAL STANDARD UNDER SECTION 16(b)

In their principal brief in support, Plaintiffs identified the legal standards under which this 

Court must rule on Rule 23 class certification and notice under Section 16(b). Mem. Supp. at 16-

17, ECF No. 51.

Defendants claim that the Section 16(b) notice motion must be analyzed under the same 

standard as the Rule 23 class certification. Defs.’ Mem. Opp. at 2-3, ECF No. 58. To the 

contrary, these two procedures have different requirements that have been accepted by the courts 

of this Circuit, and those requirement have not be changes by dictum in Espenscheid v. DirectSat 

USA, LLC. 707 F.3d 770 (7th Cir. 2013). In Espenscheid, the Court was reviewing the 

decertification order of a Wisconsin case that included 12 subclasses, including claims under the 
6

FLSA. That decertification order was entered by the district court just two weeks before the jury 

trial was to begin. Espenscheid v. DirectSat USA, LLC, No. 09-cv-625-bbc, 2011 U.S. Dist. 

LEXIS 56062, at *4 (W.D. Wis. May 23, 2012). Thus, the decertification order, using the 

stricter standard, came well after both the opt-in period and discovery had closed.

The district courts of this Circuit use a two-stage approach to determine whether 

employees are similarly situated under Section 16(b) of the Act. Nehmelman v. Penn Nat’l 

Gaming, Inc., No. 11 C 23, 2011 U.S. Dist. LEXIS 111485, at *9-11 (N.D. Ill. Sept. 29, 2011). 

In order for court-ordered notice to issue, plaintiffs at stage one need only make a “modest 

factual showing” that they are similarly situated to other potential claimants. Anyere v. Wells 

Fargo, Co., No 09 C 2769, 2010 U.S. Dist. LEXIS 35599, at *3 (N.D. Ill. Apr. 12, 2010). After 

notice has issued and discovery concluded, the court makes a determination at the second stage, 

utilizing a stricter standard. Id.at 8. “The second stage does not begin, however, ‘until potential 

plaintiffs have been given a chance to “opt-in” to the collective action and discovery is 

complete.’” Betancourt, 2011 U.S. Dist. LEXIS 43228, at *15 quoting Persin v. CareerBuilder, 

LLC, 2005 U.S. Dist. LEXIS 29727, 2005 WL 3159684, at *1 (N.D. Ill. Nov. 23, 2005).

No opted-in period has begun, much less ended, and merits discovery has not yet begun, 

much less closed. Defendants’ effort to create a new “intermediate” standard for Section 16(b) 

notice approval must be rejected. 

III. ARGUMENT

A. It Is Irrelevant To Commonality Or Predominance That Tipped Employees 

May Perform Different Duties On Different Shifts, Or That Employees Work 

Shifts Of Longer Or Shorter Duration, Because Liability For All Claims In 

This Case Can Be Determined On A Class-Wide Basis

The commonality requirement of Rule 23(a)(2) depends on a common contention that is 
7

capable of class-wide resolution, allowing the truth of an issue central to the claim to be 

determined “in one stroke.” Wal-Mart Store, Inc., v. Dukes, 564 U.S. __, 131 S. Ct. 2541, 2551 

(2011); and see Clark v. Honey-Jam Café, LLC, No. 11 C 3842, 2013 U.S. Dist. LEXIS 62461, * 

7 (N.D. Ill. Mar. 21, 2013) (company-wide policy mandating performance of particular tasks 

principal issue of case along with whether compensation must paid at full minimum wage); 

Driver, et al. v. AppleIllinois, LLC, et al., 265 F.R.D. 293, 311-12 (N.D. Ill. 2010) (common 

proof for liability whether defendant require tipped employees to perform non-tipped duties at 

tip-credit rate); Haschak v. Fox & Hound, Rest. Grp., et al., 10 C 8023, 2012 U.S. Dist. 162476, 

at * 4 (N.D. Ill. Nov. 14, 2012) (same).

Conceptually, there is a gap between an employee’s claim that he or she has been 

improperly paid a sub-minimum, “tipped” wage for “untipped” labor on the one hand, 

and the existence of a class of persons who have suffered the same injury, such that the 

employee’s claim and the class claim will share common questions of law or fact. Cf. 

Wal-Mart, 131 S.Ct at 2553 (citing Falcon, 457 U.S. at 157-58). Here, Plaintiffs have 

bridged this gap by demonstrating that Defendants maintained a company-wide policy 

requiring its employees to perform “sidework” on a regular basis. 

Haschak, 2012 U.S. Dist. 162476, at *6 (emphasis added).

The predominance prong of Rule 23(b)(3) is met where a “‘common nucleus of operative 

facts and issues’ underlies the claims brought by the proposed class.” Messner v. Northshore 

Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012). Thus, when common questions 

representing a significant aspect of the litigation can be resolved for all class members, 

predominance is satisfied. Messner, 669 F.3d at 815, quoting 7AA Wright & Miller, Federal 

Practice & Procedure § 1778 (3d ed. 2011). “[A] company-wide policy and its consistency with 

the law vel non creates a common question that predominates over the individual questions to 

which Defendants point.” Haschak, 2012 U.S. Dist. 162476, at *11.
8

Further, it is black-letter law that where issues of liability can be made, applicable across 

the class, the predominance prong of Rule 23(b)(3) is satisfied. See e.g., Messner, 669 F.3d at 

815; Arreola v. Godinez, 546 F.3d 788, 801 (7th Cir. 2008); Carnegie v. Household Inter’l, Inc.,

376 F.3d 656, 661 (7th Cir. 2004). There are “legions” of such appellate decisions across the 

circuits. Comcast Corp. v. Behrend. ___ U.S. ___, 133 S. Ct. 1426, 1437 (2013) (Ginsburg and 

Breyer, JJ., dissenting) (citing cases). 

1. Defendants Admit That Tipped Employees Were Required To 

Perform “Sidework” Duties, And Thus That They Had A Common 

Policy

Defendants admit, as they must given the detailed and extensive documentary evidence

that they themselves created, that tipped employees were required to perform specific duties that 

Defendants euphemistically called “sidework.” Defs.’ Mem. Opp. at 5. Specific duties were 

assigned for specific shifts and specific stations within the venue, and Defendants’ training and 

operational documents confirm that tipped employees were required to perform those specific 

duties. See Pls.’ Mem. Supp., 7-9 (ECF No. 51).

Defendants maintain that they can require tipped employees to perform the various 

“sidework” duties while taking the tip-credit for that time.1 Defs.’ Mem. Opp. at 7-10. Plaintiffs 

assert that sidework duties like food preparation, cleaning, and event set-up are duties unrelated 

to2duties of a tipped occupation, and therefore the time tipped employees spend on those duties 

 

1 Defendants’ assertion that tipped employees can be required to perform duties “not 

directly related to” tipped duties at the tip-credit wage rate, Defs.’ Mem. Opp. at 8, is absolutely 

false. As the regulation that Defendants cite for that statement unambiguously states, “Such 

related duties in an occupation that is a tipped occupation need not by themselves be directed 

toward producing tips.” Id. quoting 29 C.F.R. § 531.56(e).

2 Contrary to Defendants’ assertion about Plaintiffs’ non-tipped duties claim, Mem. Opp. at 
9

must be compensated at minimum wage. See Driver v. AppleIllinois, LLC, No. 06-6149, 2012 

U.S. Dist. LEXIS 121332, at *63-67 (N.D. Ill. Aug. 27, 2012) (identifying tasks that cannot be 

duties related to the tipped occupation, which must be paid at full minimum wage, and granting 

class summary judgment). 

Did Defendants’ admitted company-wide practice requiring tipped employees to perform

daily “sidework” duties, while paying them at the tip-credit rate, violate minimum wage laws 

outside their tipped occupation? With respect to both commonality and predominance, this

Court will determine as a matter of law whether those duties are, or are not, tasks of a non-tipped 

occupation. See Driver, 265 F.R.D. at 312 (determining nature of duties legal issue for court). 

That determination will apply across the entire class of tipped employees. 

2. Defendants Bear The Burden Of Establishing That They Informed 

Tipped Employees Of Section 3(m)

The FLSA is a remedial statute, and an employer who seeks to raise an exception to the 

minimum wage provisions of the Act bears the burden of proving its entitlement. Auer v. 

 

8, that claim has nothing to do with the 20 percent maximum for related duties found in the U.S. 

Department of Labor Field Operations Handbook. DOL Handbook § 30d00(e), interpreting 29 

U.S.C. § 531.56(e); ); Fast v. Applebee’s Int’l, Inc., 638 F.3d 872, 876 (8th Cir. 2011). “The 

Handbook states that an employer can take ‘the tip credit for time spent in duties related to the 

tipped occupation . . . such duties must be ‘incidental to the regular duties of the server’ and 

must be ‘generally assigned to the servers.’” Fast, 638 F.3d at 876 (citations omitted) (emphasis 

added). Plaintiffs’ claim addresses the performance of unrelated duties – duties of a non-tipped 

occupation. See Dole v. Bishop, 740 F.Supp. 1221, 1228 (S.D. Miss. 1990) (“Because these 

cleaning and food preparation duties were not incidental to the waitresses’ tipped duties, the 

waitresses were entitled to the full statutory minimum wage during these periods of time.”); 

Hodgson v. Frisch’s Dixie, Inc., No. 6641, 1971 U.S. Dist. LEXIS 12029, at * 13 (W.D. Ky. 

Aug. 16, 1971) (“No tip credit can be taken by defendants for those hours the waitresses and 

carhops spent in performing ‘nontipped’ work as mentioned in Finding of Fact No. 12 above. 

See 29 CFR 531.56(e).”).
10

Robbins, 519 U.S. 452, 462 (1997). An employer bears the burden of establishing its entitlement 

to the tip credit. Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 467 (5th Cir. 1979); 

Pedigo v. Austin Rumba, Inc., 722 F. Supp. 2d 714, 722-25 (W.D. Tex. 2010). The requirements 

to take that tip credit are strictly construed. Chu Chung v. New Silver Palace Rest., 246 

F.Supp.2d 220, 229 (S.D.N.Y. 2002).

In 1974, Congress amended Subsection 3(m) to require that employers seeking to take a 

credit for gratuities given to tipped employees by customers must have “informed” their 

employees of the “provisions” of Subsection 3(m). Pub. L. No. 93-259, § 13, 88 Stat. 55 (1974). 

The Subsection was amended in 1996 to its current form. Pub. L. No. 104-188, § 2105(b), 110 

Stat. 1755 (1996). That includes the following clause: “The preceding 2 sentences shall not 

apply with respect to any tipped employee unless such employee has been informed by the 

employer of the provisions of this subsection . . ..” 29 U.S.C. §203(m) (emphasis added).

3

Defendants have not much to say about whether tipped employees were informed of the 

provisions of Subsection 3(m), but what they do say is wrong. Defendants claim that Plaintiffs 

must prove, “with respect to each and every putative [sic] class member, that a member of 

Pinstripes management did not orally inform that putative class member about the necessary 

 

3

The requirements of Subsection 3(m) are explicit. The employer must inform the tipped 

employee of: (1) the cash wage the employee will receive; (2) the additional amount on account 

of tips on which the credit is claimed; (3) that the additional amount may not exceed the tips 

actually received; (4) that the employer cannot take the tip credit unless the employee has been 

informed of Section 203(m); and (5) that all tips received by the employee must be retained by 

that employee, except tip pooling among tipped employees is permitted. 29 C.F.R. § 531.59(b); 

Driver, et al. v. AppleIllinois, LLC, et al., No. 06 C 6149, 2013 U.S. Dist. LEXIS 2542, * 21-22 

(N.D. Ill. Jan. 8, 2013).
11

information under the FLSA.” Defs.’ Mem. Opp. at 16. That is false. If the employer seeks to 

take the tip credit under Subsection 3(m), the employer bears the burden of proof. 

Defendants claim they have no “uniform policy” about what tipped employees are told 

regarding the tip credit, and whatever those employees are told “varies greatly.” Defs. Mem. 

Opp. at 7. For Defendants who seemingly have a policy for everything, including a detailed 

diagram to inform employees where pesto is placed on a serving table, Ex. L, FOH SOP, P0297,

that stretches credulity – unless Defendants had no policy and in fact never informed tipped 

employees about the provisions of the Subsection 3(m).

In any event, whatever tipped employees were told about that Subsection, if anything, 

either did or did not comply with the law and the regulations. Like the central issues of all the 

other claims, this Court will make that determination, and do so across the class. 

3. This Court Will Determine As A Matter Of Law Whether The Event 

“Service Charge” Is A Bona Fide Service Charge 

Plaintiffs claim that what Defendants call a “service charge” (and what they internally 

called a “house tip”), fails as bona fide service charge because that money is distributed to tipped 

employees and to the non-tipped event sales staff as salary, and thus never enters Defendants’ 

gross receipts. Reich v. ABC/York-Estes Corp., 91 C 6265, 1997 U.S. Dist. LEXIS 6874, at * 22-

23 (N.D. Ill. 1997). If it is not a service charge, the fact that Defendants took their “house tip” 

violates Subsection 3(m). If, on the other hand, it is a service charge as Defendants claim, they 

still violated the tip credit provisions because a “compulsory charge for service . . . is not a tip, 

and cannot be counted as a tip received in applying the provisions of section 3(m) and 3(t).” 29 

C.F.R. §531.55(a); Reich, 1997 U.S. Dist. LEXIS 6874, at *15-16. 

In short, either Defendants had to permit the employees paid a tip-credit rate to keep all 
12

the tips, or they could claim a service charge but pay the tipped employees full minimum wage 

for their event work. Defendants did neither. 

4. Defendants Attempt To Pay Off Tipped Employees By Paying Less 

Than All Wages Owed, Including FLSA Liquidated Damages And 

Two Percent Damages Under the IMWL Was Improper, And The 

Tipped Employees Retain Their Right To Bring An Action On Those 

Unpaid Wages 

An employee’s rights under the FLSA cannot be compromised or waived by private 

agreement, as this would thwart the legislative purpose the Act was created to effectuate. 

Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740 (1981); Brooklyn Savings Bank 

v. O'Neil, 324 U.S. 697, 708-09 (1945). This includes waiver of liquidated damages available 

under the Act. D.A. Schulte v. Gangi, 328 U.S. 108, 115-116 (1946); see also Dees v. Hydradry, 

Inc., 706 F. Supp. 2d 1227, 1237-38 (M.D. Fla. 2010) (“The employer remains liable for the 

unpaid wages, and the employee may sue to recover any wages (or liquidated damages) allegedly 

compromised by private agreement.”)

Although Defendants had a chance to fess up to the IDOL auditor, they chose to 

“resolve” the failure to pay the proper tip-credit rate, and the failure to properly calculate 

overtime, outside the purview of the Department or the courts. In discovery, Defendants refused 

to identify of the tipped employees at South Barrington and Northbrook received payment on 

March 29, 2012. Ex. H, Pinstripes Check Register, dtd 3/29/2012 (under seal). That question, 

and whether Defendants paid the lawful amount of actual wages to the employees, must be 

determined with additional discovery after class certification. 

What is clear is that Defendants did not pay those employees liquidated damages 

available under the FLSA, or two percent additional damages available under the IMWL. Ex. B, 
13

Rule 30(b)(6) Dep. (Soukop 2d) 23:9 – 23:19. Defendants thus remain liable to those tipped 

employees for those damages, and Defendants must now must face the ‘peril’ of their decision. 

 B. As Tipped Employees Named Plaintiffs Are Typical Of The Class Of All 

Employees Paid The Tip-Credit Wage Rate, Regardless Of Job Title

Much of what Defendants call a ‘typicality’ argument, Defs.’ Mem. Opp. at 17-18, is 

nothing more than the failed predominance argument rehashed. But their claim that typicality 

fails because Name Plaintiffs were servers, and other tipped employees were bartenders and 

server assistants, reflects a superficiality that is surprising even coming from these Defendants. 

Defendants admit that these other job positions, bartenders and server assistants, and their 

documents establish that those job positions were required to perform “sidework” duties. All

tipped employee, regardless of job title, must be informed of the provisions of Subsection 3(m), 

and Defendants likewise admit that other tipped employees were paid less than minimum wage. 

Answer, ¶¶ 1, 10, 12, 13, 23-25 (ECF No. 12); Ex. B, Rule 30(b)(6) Dep. (Soukop 2d) 12:13-14; 

14:13-20 (server assistants are paid between $6.50 and $16.50 per hour; bartenders between 

$6.50 and $11.50 per hour). Whether Defendants failed to pay any bartenders or server 

assistants the increased minimum wage beginning on July 1, 2010, or whether they failed to 

properly calculate overtime wages for those employees in those job positions, is a question that 

will be revealed in merits discovery.4 

“Typicality under Rule 23(a)(3) is satisfied if a plaintiff’s claim ‘arises from the same 

event or practice or course of conduct that gives rise to the claim of the other class members, and 

 

4 As Plaintiffs explained in their initial memorandum (ECF No. 51, at 2, n.5), Defendants 

had a total of four opportunities to correctly identify the wages it pays to server assistants and 

bartenders, and each time provided different numbers. 
14

if the claims are based on the same legal theory.’” Haschak, 2012 U.S. Dist. 162476, at *7, 

quoting Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998). The claims of Named Plaintiffs and 

those of all tipped employees are based on the same legal theory and the same practice of 

Defendants. Plaintiffs have met the typicality prerequisite.

C. Superiority of Class Action Method

Like Defendants’ “typicality” argument, their “superiority” argument is nothing more 

than a predominance argument by another name. 

Defendants claim “that the vast majority of Pinstripes employees have no interest in this 

litigation,” is nothing but a hopeful surmise on their part, as is their suggestion that Plaintiffs 

must demonstrate a ‘showing of interest’ in order for notice of the collective action to issue. 5 

Defs.’ Mem. Opp. at 20. 

Courts in this Circuit do not require a plaintiff seeking to give notice under Section 

216(b) to demonstrate that other persons wish to participate in the lawsuit. See, e.g., Garcia v. 

The Salamanca Group, Ltd., No. 07 C 4665, 2008 U.S. Dist. LEXIS 22852, at *9-10 (N. D. Ill. 

Mar. 24, 2008); Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 779-80 (N. D. Ill. 2007); but 

see Lance v. The Scotts Co., No. 04 C 5270, 2005 U.S. Dist. LEXIS 14949, 2005 WL 1785315 

(N.D. Ill. July 21, 2005) (dictum). Indeed, virtually all courts in this Circuit considering Section 

216(b) notice rule without any reference whatsoever to a ‘showing of interest’ requirement. See, 

e.g., Boyd v. Alutiiq Global Solutions, LLC, No. 11 C 753, 2011 U.S. Dist. LEXIS 88656, at *1 

(N.D. Ill. Aug. 8, 2011). And where courts have expressly addressed such a requirement, it has 

 

5 Of course, the ‘modest factual showing’ of Section 16(b) does not have a superiority 

prong. Because Defendants raise the issue in their response in the ‘superiority’ section, Plaintiffs 

address it here.
15

been roundly criticized and rejected as contrary to the remedial and humanitarian goals of the 

FLSA as expressed by the Supreme Court. Garcia, 2008 U.S. Dist. LEXIS 22852, at *9-10; 

Heckler, 502 F. Supp. 2d at 779-80.

D. Notices Like Plaintiffs’ Proposed Notice Have Been Approved By Other 

Courts In This District, And Defendants’ Generalized Objections Carry No 

Weight

The notice that Plaintiffs propose has been approved by other courts in this District, most 

recently by Judge Norgle in Clark, 2013 U.S. Dist. LEXIS 62461, * 1. 

Defendants voice no specific objections; instead, they want the Court to order the parties 

to confer on the form of the notice, claiming that is “standard practice.” It may be ‘standard 

practice’ where the plaintiff does not submit a proposed notice along with the motion, but 

Plaintiffs here did submit a notice, one that has been previously approved by another court. If 

Defendants had specific, legitimate objections to the language of the notice, they should have 

raise those specific objections. They have not, and the only consequence of their request is to 

further delay the notice process.

Plaintiffs’ proposed notice should be approved. 

IV. CONCLUSION

WHEREFORE, for the foregoing reasons and those set forth in Plaintiffs’ motion, 

memorandum of law and supporting materials, Plaintiffs request that the Court grant their 

combined motion.

Dated: July 17, 2013 Respectfully submitted,

ERIK JOHNSON, MATTHEW TOPORSKI

s/Jamie G. Sypulski

One of the Attorneys for Plaintiffs