Justin A. Zeller, Esq. 

THE LAW OFFICE OF JUSTIN A. ZELLER, P.C. 

251 West 14th Street, 5th Floor 

New York, NY 10011 

(212) 860-9169; fax (917) 421-9387 

Attorney for Plaintiff 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

---------------------------------------------------------------X 

EMILIANO SALAS, on behalf of himself : 

and all other persons similarly situated, : 

 : 

 Plaintiffs, : 

 : 07-CV-3430 

 -against- : (BSJ) (AJP) 

 : 

99 CENTS FOR YOU, INC., a New York : 

corporation, : 

 : 

 Defendant. : 

---------------------------------------------------------------X 

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION 

FOR APPROVAL OF COLLECTIVE ACTION NOTICE

Dated: New York, New York 

 August 24, 2007 

Case 1:07-cv-03430-BSJ-AJP Document 10 Filed 08/24/2007 Page 1 of 12
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TABLE OF CONTENTS 

 Page 

PRELIMINARY STATEMENT............................................. 5 

 I. INTRODUCTION.................................................. 5 

 II. ARGUMENT...................................................... 7 

 A. Collective Actions under the FLSA............ 7 

 B. The Factual Nexus is Established in this Case... 8 

 

 C. The Collective Action Notice..................... 9 

 

 D. Defendant Should Disclose the Names and Last 

 Known Addresses of Prospective Plaintiffs...... 10 

 III. CONCLUSION................................................... 12 

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TABLE OF AUTHORITIES 

CASES Page 

Atkins v. General Motors Corp., 

701 F.2d 1124 (5th Cir. 1983)................................................ 11 

Bonilla v. Las Vegas Cigar Co., 

61 F. Supp. 2d 1129 (D. Nev. 1999)........................................ 10 

Braunstein v. Eastern Photographic Laboratories, Inc. 

600 F. 2d 335 (2d Cir. 1979)................................................. 9 

Cook v. United States, 

109 F.R.D. 81 (E.D.N.Y. 1985).............................................. 11 

Does I thru XXIII v. Advanced Textile Corp., 

214 F.3d 1058 (9th Cir. 2000)................................................ 11 

Gjurovich v. Emmanuel’s Marketplace, Inc., 

282 F. Supp. 2d 101 (S.D.N.Y. 2003)....................................... 7, 8-10 

Hoffman v. Sbarro, Inc., 

982 F. Supp. 249 (S.D.N.Y. 1997) ).......................................... 7-9, 11 

Hoffman-La Roche, Inc. v. Sperling, 

493 U.S. 165 (1989)............................................................ 9-11 

Partlow v. Jewish Orphans' Home of Southern Cal., Inc., 

645 F.2d 757 (9th Cir. 1981)................................................. 10 

Schwed v. General Electric Co., 

159 F.R.D. 373 (N.D.N.Y. 1995)............................................ 8 

Trinidad v. Breakaway Courier Systems, Inc., 

2007 WL 103073 (January 12, 2007 S.D.N.Y)............................. 9 

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STATUTES 

Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).................. Passim 

Fed. R. Civ. P. Rule 23............................................................... 8 

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Justin A. Zeller, Esq. 

THE LAW OFFICE OF JUSTIN A. ZELLER, P.C. 

251 West 14th Street, 5th Floor 

New York, NY 10011 

(212) 860-9169; fax (917) 421-9387 

Attorney for Plaintiff 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

---------------------------------------------------------------X 

EMILIANO SALAS, on behalf of himself : 

and all other persons similarly situated, : 

 : 

 Plaintiffs, : 

 : 07-CV-3430 

 -against- : (BSJ) (AJP) 

 : 

99 CENTS FOR YOU, INC., a New York : 

corporation, : 

 : 

 Defendant. : 

---------------------------------------------------------------X 

PLAINTIFF’S MEMORANDUM OF LAW IN 

SUPPORT OF MOTION FOR CLASS CERTIFICATION

PRELIMINARY STATEMENT 

 Plaintiff Emiliano Salas (“Salas” or the “Plaintiff”), on behalf of himself 

and all other persons similarly situated, by his attorney, submits this memorandum of law 

in support of his Motion for Approval of Collective Action Notice (hereafter, the 

“Motion”). 

I. INTRODUCTION 

 In this action, among other claims for relief, Plaintiff seeks to recover unpaid 

overtime compensation and minimum wages on behalf of himself and other similarly 

situated employees of Defendant, pursuant to the Fair Labor Standards Act, 29 U.S.C. § 

201 et seq. (“FLSA”). 

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Plaintiff now moves the Court to enter an Order permitting this action to proceed as a 

collective action, requiring Defendant to disclose the names and last-known addresses of 

current and former employees who are potential plaintiffs, and to approve the form, 

collective action, requiring Defendant to disclose the names and last-known addresses of 

current and former employees who are potential plaintiffs, and to approve the form, 

content and distribution of Plaintiff’s proposed “Notice of Lawsuit and Opportunity to 

Join” and “Consent to Become Party Plaintiff” (attached as Exhibit A and B, 

respectively, to the Declaration of Justin A. Zeller, Esq. filed herewith), ensuring that 

potential plaintiffs will be advised of the pendency of this action and their right to “optin” to this case pursuant to FLSA § 216(b). 

 The Named Plaintiff is a former employee of Defendant, who performed such 

duties as stocking shelves, cleaning and maintenance duties, and making deliveries. 

While employed by Defendant, the Named Plaintiff and at least 4 other employees 

were not paid proper overtime wages and minimum wages pursuant to the Fair Labor 

Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the New York Labor Law §§ 190 

et seq. As a result of the improper classification, the employees were, and continue to be, 

denied appropriate compensation for hundreds of hours of overtime they work and have 

worked. 

 Accordingly, the plaintiff collective action class consists of all current and former 

employees of Defendant who worked either as stock persons, janitorial/maintenance 

workers, or delivery workers, who worked for Defendant (a) in excess of forty (40) hours 

per week without being paid overtime compensation therefor, in any given week, equal to 

one and one-half times their regular rate of pay and/or (b) who were not paid the 

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appropriate minimum wage for each hour they worked. All such individuals should 

receive notice and the opportunity to opt-in to this case if they worked in excess of forty 

(40) hours per week but were not compensated at the rate of time and one-half or if they 

were not paid the appropriate minimum wages for each hour worked. 

II. ARGUMENT 

A. Collective Actions under the FLSA

 The FLSA expressly permits the maintenance of collective actions by similarly 

situated employees for an employer’s violation of the provisions requiring payment of 

minimum wage and overtime compensation. FLSA § 216(b) provides in pertinent part as 

follows: 

 Any employer who violates the provisions of section 206 [requiring 

payment of minimum wage] or section 207 [requiring payment of overtime 

compensation for hours worked in excess of 40 per week] of this title shall be 

liable to the employee or employees affected in the amount of their unpaid 

minimum wages, or their unpaid overtime compensation, as the case may be, 

and in an additional equal amount as liquidated damages. . . . An action to 

recover liability . . . may be maintained against any employer . . . 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. The court 

in such action shall, in addition to any judgment awarded to the plaintiff or 

plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and 

costs of the action. 

In order to maintain a collective action under FLSA § 216(b), the named plaintiff must 

demonstrate that other, potential plaintiffs are “similarly situated.” Gjurovich v.

Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 104 (S.D.N.Y. 2003) . This 

requirement is satisfied if the named plaintiff demonstrates the existence of a “factual 

nexus between the [named plaintiff’s] situation and the situation of the other current and 

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former [employees].” Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997). 

 Specifically, the named plaintiff need only make a “modest factual showing 

sufficient to demonstrate the [the named plaintiff] and potential plaintiffs together were 

victims of a common policy or plan that violated the law.” Sbarro, at 261; see also 

Gjurovich, 282 F. Supp. 2d at 104. The named plaintiff is not required to prove that 

potential plaintiffs shared identical positions or performed identical work. Schwed v. 

General Electric Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995). “The burden on plaintiffs is 

not a stringent one, and the Court need only reach a preliminary determination that 

potential plaintiffs are ‘similarly situated.’” Sbarro, 982 F. Supp. at 261. 

 As demonstrated by the foregoing authority, collective actions under the FLSA 

are materially different from class actions under Fed. R. Civ. P. 23. Rule 23 requires the 

proponent of the class action to demonstrate the existence of several factual 

circumstances, including numerosity of the proposed class, common questions of law or 

fact, typicality of claims or defenses, and adequate and fair protection of the interests of 

the class by the representative parties. Fed. R. Civ. P. 23. These circumstances are 

simply not applicable to collective actions under the FLSA, which requires the named 

plaintiff to show only that potential plaintiffs likely exist. As discussed below, the 

declaration by Plaintiff submitted herewith clearly and sufficiently make the requisite 

showing in this case. 

B. The Factual Nexus is Established in this Case

 The declaration of the named plaintiff filed contemporaneously herewith, 

demonstrates that Defendant adopted and adhered to a policy effectively requiring their 

employees to work in excess of 40 hours per week without paying overtime 

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compensation at the rate of time and one-half, in violation of FLSA § 207. 

 Plaintiff regularly worked in excess of (40) hours per workweek. See Plaintiff’s 

August 22, 2007 Declaration at Para. 6, attached hereto. In fact, Plaintiff typically 

worked in excess of sixty (60) hours. Id. Further, during Plaintiff’s employment with 

Defendant, Plaintiff was paid a salary, with no additional overtime compensation 

whatsoever for hours worked above forty (40) hours. Id. at Para. 7. 

 During Plaintiff’s employment with Defendant, he personally observed that there 

were numerous other laborers who performed the same job duties that Plaintiff 

performed, worked the same amount of hours that Plaintiff worked per workweek, and 

were paid in the same manner in which Plaintiff was paid. Id. at Para. 9. 

 Accordingly, Plaintiff has demonstrated that numerous other similar employees 

were not paid overtime at a rate of time and one half as part of a common, illegal policy 

of the Defendants. 

 C. The Collective Action Notice

 FLSA § 216(b) has no specific provision for issuing notice to prospective 

plaintiffs in collective actions. However, it is well established that district courts have the 

power to send such a notice to potential plaintiffs. E.g., Braunstein v. Eastern

Photographic Laboratories, Inc. 600 F. 2d 335, 335-36 (2d Cir. 1979); Sbarro, 982 F. 

Supp. at 261(citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989); Gjurovich, 

282 F. Supp. 2d at 104; Trinidad v. Breakaway Courier Systems, Inc., 2007 WL 103073 

(January 12, 2007 S.D.N.Y) (Judge Sweet). It is important to note that, in issuing a 

notice to potential plaintiffs, the Court does not adjudicate the merits of the claims of 

either the named or potential plaintiffs, or determine that the potential plaintiffs are in 

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fact similarly situated with the named plaintiff. As Magistrate Judge Lisa Margaret 

Smith of the Southern District in Westchester County noted: 

Here, I determine only that notice may be sent to those people who, at 

this very preliminary stage in the litigation, might be potential plaintiffs. I 

am not determining that those being notified “are, in fact, similarly situated” 

to the Plaintiff, and I make no determination regarding the legal rights and 

responsibilities of the parties. . . . Again, the Plaintiff’s burden for proving 

that he is similarly situated to these potential plaintiffs is minimal for this 

preliminary determination-a determination that can be modified or reversed 

after discovery is complete. 

Gjurovich, 282 F.2d at 105 (citations omitted). 

 Plaintiff separately submits herewith a proposed Notice of Lawsuit and 

Opportunity to Join. This notice comports to the specific requirements exhaustively 

enumerated by Judge Smith in Gjurovich. Supra, at 106-109. 

 D. Defendant Should Disclose the Names and 

 Last Known Addresses of Prospective Plaintiffs

 Only the Defendant knows the names and addresses of potential plaintiffs in this 

case. The Supreme Court has confirmed this Court’s inherent authority to require 

Defendant to disclose that information so that Plaintiff’s counsel can circulate the Notice 

of Lawsuit and Opportunity to Join. Hoffman-La Roche, Inc. v. Sperling, 110 S. Ct. 482, 

486 (1989). In addition, Defendant should be ordered to provide this information in both 

paper and digital format to expedite the distribution of the notices, and the proposed 

Order submitted herewith so provides. 

 Plaintiff’s motion for permission to authorize notice to potential class members is 

critical because the statute of limitations for claims brought under the Fair Labor 

Standards Act may not be tolled for a particular plaintiff until he or she files with this 

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Court a “Consent to Join” form. Bonilla v. Las Vegas Cigar Co., 61 F. Supp. 2d 1129, 

1133 (D. Nev. 1999); Partlow v. Jewish Orphans' Home of Southern Cal., Inc., 645 F.2d 

757, 760 (9th Cir. 1981) (“It is true that the FLSA statute of limitations continues to run 

until a valid consent is filed.”); Atkins v. General Motors Corp., 701 F.2d 1124, 1130 n. 5 

(5th Cir. 1983); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, (9th Cir. 

2000); Sbarro, 982 F. Supp. at 262; 29 U.S.C. § 216(b). The implication of the continued 

running of the statute of limitations is obvious: each day that passes before notice is given 

causes prejudice to the absent plaintiffs. The statute of limitations demonstrates not only 

the need for the distribution of notice to purported class members, but the expediency in 

which the distribution must occur. 

 Plaintiff is not requesting unusual or extraordinary relief, but is requesting 

relief clearly within the discretion of this Court. Hoffmann-La Roche Inc. v. Sperling, 

493 U.S. 165, 171 (1989). The United States Supreme Court recognized the need for 

notice in actions like this and also approved Court intervention and authorization of 

notice, stating: 

Because trial court involvement in the notice process is inevitable in 

cases with numerous plaintiffs where written consent is required by 

statute, it lies within the discretion of a district court to begin its 

involvement early, at the point of the initial notice, rather than at some 

later time. . . . The court is not limited to waiting passively for 

objections about the manner in which the consents were obtained. By 

monitoring preparation and distribution of the notice, a court can ensure 

that it is timely, accurate, and informative. 

Hoffmann-La Roche, 493 U.S. at 171-172 (1989); Sbarro, 982 F. Supp. at 262 (“courts 

have endorsed the sending of notice early in the proceeding, as a means of facilitating the 

FLSA’s broad remedial purpose and promoting efficient case management.”); Cook v.

United States, 109 F.R.D. 81, 83 (E.D.N.Y. 1985) (“certainly, it is unlikely that Congress, 

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having created a procedure for representative action, would have wanted to prevent the 

class representative from notifying other members of the class that they had a 

champion.”) 

III. CONCLUSION 

 Plaintiff has shown by his declaration and the exhibits thereto that he is 

similarly situated with other former and current employees of Defendant. Accordingly, 

Defendant should be required to provide the names and addresses of all current and 

former employees of Defendant who worked either as stock persons, janitorial/ 

maintenance workers, or delivery workers, who (a) worked for Defendant in excess of 

forty (40) hours per week without being paid overtime compensation equal to one and 

one-half times their regular rate of pay in any given week, or (b) who were not paid the 

appropriate minimum wages for all hours worked, within three years preceding the date 

of the Court’s Order on this motion, so that notice of this action may be communicated to 

them. For the foregoing reasons, Plaintiff respectfully requests that Plaintiff’s Motion be 

granted. 

Dated: New York, New York 

 August 24, 2007 

 THE LAW OFFICE OF JUSTIN A. ZELLER, P.C. 

 /s Justin A. Zeller 

 Justin A. Zeller, Esq. 

 251 West 14th Street, Floor 5 

 New York, NY 10011 

 (212) 860-9169; fax (917) 421-9387 

 

 Attorney for Plaintiff 

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