UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-------------------------------------------------------x 

ANTHONY FRATTIN on behalf of himself

and others similarly situated, 

Plaintiff, 

 

v. 

WEST 44th STREET RESTAURANT LLC, 

d/b/a KELLARI TAVERNA, STAVROS 

AKTIPIS, and HARSHAD SHAH, 

 

Defendants. 

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INDEX NO: 07 CV 3383 (PAC) 

MEMORANDUM REPLY IN FURTHER SUPPORT OF PLAINTIFF’S MOTION 

FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY 

INJUNCTION 

D. Maimon Kirschenbaum (DK-2338) 

Charles E. Joseph (CJ-9442) 

JOSEPH & HERZFELD LLP 

757 Third Avenue 

25th Floor 

New York, NY 10017 

Tel: (212) 688-5640 

Fax: (212) 688-2548 

Attorneys for Plaintiffs and proposed 

collective action and class action members 

Case 1:07-cv-03383-PAC Document 14 Filed 06/15/2007 Page 1 of 6
I. ARGUMENT

Defendants’ opposition papers do not dispute or deny the key facts in Plaintiff’s 

motion for injunctive relief – that Defendants terminated Plaintiff immediately following 

and in retaliation for his having filed an FLSA class/collective action. This is precisely 

the scenario the FLSA intended to address through its anti-retaliation provisions and 

allowances for equitable relief. 

 Defendants’ argument that the injunction should be denied because FLSA’s antiretaliation provisions sufficiently protect plaintiffs, thus making injunctive relief 

unnecessary is not supported by the facts in this case or common logic. Here, the FLSA’s 

anti-retaliation provisions failed to protect Plaintiff -- Defendants retaliated against him 

immediately after he filed this lawsuit. Defendants certainly have not given any 

indication that they will not repeat their unlawful behavior. To the contrary, Defendants 

have instructed potential plaintiffs not to join this lawsuit. As a result of Defendants’ 

behavior, current Kellari employees are afraid to join the lawsuit, and this cannot be 

alleviated without the requested relief. 

Moreover, Defendant’s argument begs the question as to when preliminary 

injunctive relief would ever be appropriate. Preliminary injunctive relief by its very 

nature assumes that it is necessary to prevent illegal behavior. For precisely this reason, 

courts grant injunctive relief to rectify or deter blatant retaliation, without relying on 

FLSA’s explicit prohibition of retaliation and its other non-equitable remedies. See 

Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333, 1336 (11th Cir. 2002) (“An injunction 

reinstating further retaliatory conduct indeed may help to “effectuate the purposes” of the 

anti-retaliation provision in a case such as this, where the district court found Gulf Coast's 

Case 1:07-cv-03383-PAC Document 14 Filed 06/15/2007 Page 2 of 6
conduct to be “plainly retaliatory” and where there was evidence that other drivers were 

fearful of participating in the suit.”); Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 

(W.D.N.Y. 2003) (“[R]etaliation and the resulting weakened enforcement of federal law 

can itself be irreparable harm in the context of a preliminary injunction application.”). 

This Court recently granted an injunction under similar circumstances. Arroyo et 

al v. Redeye Grill et al, Civ No. 06-civ-0381-PAC (S.D.N.Y. 2006) (a copy of the order 

is attached hereto as Exhibit A.) (granting injunctive relief where defendants intimidated 

plaintiffs form joining FLSA lawsuit)

Defendants’ half-hearted attempt to distinguish Centeno-Bernuy fails miserably. 

While they declare that its facts are “readily distinguishable” from those in this case, Def, 

Opp. Memo. at 2, Defendants merely summarize the facts without offering any 

meaningful distinction. In Centeno-Bernuy, as in this case, the defendants engaged in 

activity that is otherwise covered by the FLSA’s anti-retaliation provisions and subject to 

its other forms of relief. Nevertheless, the court granted the plaintiffs’ request for an 

injunction. Centeno-Bernuy, 302 F. Supp. 2d 128. 

Contrary to Defendants’ contention, injunctive relief is not an end run around the 

FLSA’s remedies. Rather, it is the FLSA remedy of injunctive relief that ensures that 

defendants such as Kellari will not undermine the statute’s purpose by intimidating 

current and future plaintiffs. 

Defendants’ next argument, that the FLSA’s anti-retaliation protection exists only 

for a plaintiff that files a complaint, is baffling. Plaintiff obviously filed the formal 

Complaint that began this action, and his complaint is on behalf of federal opt-in and a 

New York opt-out class. As Plaintiff set forth in his opening brief – and Defendants do 

Case 1:07-cv-03383-PAC Document 14 Filed 06/15/2007 Page 3 of 6
not dispute – Plaintiff and putative class members reasonably fear that they will be 

retaliated against for filing opt-in forms, which undoubtedly is protected behavior. 

Accordingly, Defendants’ cites are wholly inapposite, as they involve cases where the 

defendants retaliated against plaintiffs for unprotected behavior, such as informal 

complaints. See Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir. 1993) (informal 

complaints to supervisor); Shah v. Wilco Sys., 126 F. Supp. 2d 641, 651 (S.D.N.Y. 2000) 

(discussions with coworkers); Booze v. Shawmut Bank, Connecticut, 62 F. Supp. 2d 593 

(D. Conn. 1999) (informal complaints). 

Moreover, the Second Circuit has specifically recognized that this type of 

situation gives rise to irreparable harm. In Holt v. Continental Group, the court stated 

A retaliatory discharge carries with it the distinct risk that other 

employees may be deterred from protecting their rights under the 

Act or from providing testimony for the plaintiff in her effort to 

protect her own rights. These risks may be found to constitute 

irreparable injury. 

708 F.2d 87, 91 (2d Cir. 1993). 

Finally, Defendants invoke Soler v. G&U, Inc., 1982 WL 2159, No. 78 Civ. 6252 

(S.D.N.Y. Jan. 15, 1982) in support of their incorrect conclusion that a chilling effect on 

potential plaintiff cannot constitute irreparable harm. Defendants’ reliance is misplaced. 

The court in Soler did not reject the notion that a chilling effect is irreparable harm but 

found that the plaintiffs there failed to establish that there was in fact a chilling effect. Id. 

at *4 (“[T]he mere possibility of a chilling effect on the farmworkers' future exercise of 

their rights, when no such chilling effect has been shown here, is too remote and 

speculative an injury on which to base a preliminary injunction.”).1 Where, as here, the 

 

1

 Soler is further distinguishable because the harm the plaintiffs there sought to avoid 

was not related to individuals who were potential opt-ins or members of an opt-out 

Case 1:07-cv-03383-PAC Document 14 Filed 06/15/2007 Page 4 of 6
court has had a basis for finding a “chilling effect,” it has granted an injunction. See, e.g., 

Centeno-Bernuy, 302 F. Supp. 2d at 134; Bailey, 280 F.3d at 1336; Arroyo, Ex. A. 

As detailed in his opening brief, Plaintiff’s termination inevitably had and 

continues to have a chilling effect on potential plaintiffs. Defendants communicated to 

the Kellari staff how Kellari deals with these matters. In addition, Kellari’s 

investigations of employees regarding their involvement in the lawsuit and instructions 

not to join the lawsuit are outright attempts to prevent employees from joining. Thus, 

preliminary injunctive relief is necessary to prevent this irreparable harm and to assure 

potential plaintiffs they will be protected if they assert their rights, because Kellari is not 

above the law. 

 This chilling effect has made it difficult for Plaintiff to gather evidence pertaining 

to his claims in this lawsuit and has intimidated other employees from joining this 

lawsuit. Defendants intimate that money damages can rectify Defendants’ wrongful 

termination of Plaintiff, without explaining how money damages alleviate either of these 

concerns. In fact, money damages do little to lessen these harms; common sense 

indicates that a Kellari employee would refrain from jeopardizing her current 

employment by providing testimony in favor of Plaintiff or joining this suit, even if she 

may be entitled to damages at the end of the long road of litigation. 

II. CONCLUSION

 In conclusion, Defendants have demonstrated that they do not heed the FLSA’s 

anti-retaliation provisions. Without the requested relief, Plaintiff and the putative classes 

 

class, but rather the plaintiffs sought to protect employees “who [were] not 

participating in [the] suit.” Id. 

Case 1:07-cv-03383-PAC Document 14 Filed 06/15/2007 Page 5 of 6
will be irreparably harmed in a manner that cannot be repaired by money damages. 

Accordingly, Plaintiff respectfully requests the Court grant them the injunctive relief set 

forth in Plaintiff’s original memorandum. 

Dated: New York, New York 

 June 15, 2007 

 

Respectfully submitted, 

JOSEPH & HERZFELD LLP 

By: /s/ D. Maimon Kirschenbaum

 D. Maimon Kirschenbaum (DK-2338) 

Charles E. Joseph (CJ-9442) 

757 Third Avenue 

25th Floor 

New York, NY 10017 

Tel: (212) 688-5640 

Fax: (212) 688-2548 

Attorneys for Plaintiff, proposed collective action 

members and proposed class 

 

Case 1:07-cv-03383-PAC Document 14 Filed 06/15/2007 Page 6 of 6