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09-4890-cv

Zheng v. Liberty Apparel Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 10 day of August, two thousand ten. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 BARRINGTON D. PARKER,

9 PETER W. HALL,

10 Circuit Judges.

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13 LING NAN ZHENG, REN ZHU YANG, YUN

14 ZHEN HUANG, WEN QIN LIN, SAI BING

15 WANG, YE BIAO YANG, RONG YUN ZHENG,

16 HUI FANG LIN, XIU YING ZHENG, JIN

17 PING LIN, HUI MING DONG, YU BING LUO,

18 SAU CHI KWOK, SAI XIAN TANG, YI ZHEN

19 LIN, RUI FANG ZHANG, MEI JUAN YU, MEI

20 YING LI, QIN FANG QIU, YI MEI LIN,

21 MEI ZHU DONG, FUNG LAM, XIU ZHU YE,

22 SING KEI LAM, XUE JIN LIN,

23

24 Plaintiffs-Appellees,

25

26 CUI ZHEN LIN,

27

28 Plaintiff,
2

1

2 -v.- 09-4890-cv

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4 LIBERTY APPAREL COMPANY, INC., ALBERT

5 NIGRI, HAGAI LANIADO,

6

7 Defendants-Cross-Claimants

8 -Appellants,

9

10 NGON FONG YUEN, 88 FASHION INC., TOP

11 FIVE SPORTSWEAR, INC., S.P.R.

12 SPORTSWEAR, INC., 91 FASHION INC.,

13

14 Defendants,

15

16 LAI HUEN YAM, also known as Steven

17 Yam, 998 FASHIONS INC., 103 FASHION

18 INC.,

19

20 Defendants-Cross-Defendants.

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23

24 FOR APPELLANT: VANO I. HAROUTUNIAN (Will

25 Levins, on the brief), Ballon

26 Stoll Bader & Nadler, P.C., New

27 York, New York.

28

29 FOR APPELLEES: JAMES REIF (Anna Roberts on the

30 brief), Gladstein, Reif &

31 Meginniss, LLP, New York, New

32 York. 

33

34 Appeal from a judgment of the United States District

35 Court for the Southern District of New York (Sullivan, J.).

36

37 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

38 AND DECREED that the judgment of the district court be

39 AFFIRMED IN PART and VACATED AND REMANDED IN PART.

40

41 Plaintiffs are a group of 25 Chinese garment workers

42 in New York City’s Chinatown. In 1999, they sued Liberty

43 Apparel Company and its two principals (collectively, “the

44 defendants”), and others, for violations of the Fair Labor

45 Standards Act, 29 U.S.C. § 201 et seq., New York state
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1 analogs, and New York Labor Law § 345-a(1). Ultimately, a

2 jury found Liberty Apparel and Albert Nigri liable on the

3 FLSA and New York state analog claims, and all three

4 defendants liable on the § 345-a(1) claim; following

5 resolution of various post-trial motions, the district court

6 entered judgment accordingly. 

7

8 The defendants now appeal that judgment. They argue

9 principally that the district court improperly allowed the

10 jury to determine whether Liberty was plaintiffs’ joint

11 employer, whereas instead the court itself should have

12 resolved that issue. We address this issue in a separate

13 opinion filed contemporaneously with this summary order.

14

15 The defendants also argue that: (1) the district court,

16 having previously concluded that three of the factors

17 involved in the joint employment inquiry favored the

18 defendants as a matter of law, improperly refused to charge

19 the jury accordingly; (2) the jury’s verdict was not

20 supported by sufficient evidence; and (3) New York Labor Law

21 § 345-a(1) does not allow a private right of action. 

22

23 [1] In denying summary judgment on remand, the district

24 court held that as to three of the relevant factors there

25 was no genuine dispute of fact, and that each favored the

26 defendants as a matter of law. The defendants argue that

27 the court erred in failing to instruct the jury accordingly.

28

29 Even assuming that the district court erred in this

30 regard, vacatur is unwarranted. An improper jury

31 instruction does not require a new trial if the error was

32 harmless. See 28 U.S.C. § 2111; Fed. R. Civ. P. 61; Gordon

33 v. N.Y. City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).

34 “An error is harmless only if the court is convinced that

35 the error did not influence the jury’s verdict.” Gordon,

36 232 F.3d at 116. But “harmless error analysis does not

37 require absolute certainty with respect to what effect the

38 error had upon the verdict.” Bruneau ex rel Schofield v. S.

39 Kortright Cent. School Dist., 163 F.3d 749, 760 (2d Cir.

40 1998). “[W]hen we are able to conclude that the verdict was

41 not substantially influenced by the alleged error, then we

42 may be quite confident the objecting party’s rights were not

43 prejudiced and may uphold the general verdict.” Id.

44

45 Here, any error would be harmful only if there was a

46 reasonable chance that the jury could have deemed any or all

47 of factors one, two, and four to favor plaintiffs. On this
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1 record, that is implausible. The defendants admit that the

2 plaintiffs conceded all three factors at trial, and the

3 court’s charge--which we presume the jury followed, United

4 States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998)--ensured

5 that no improper considerations infected the jury’s weighing

6 of these factors. 

7

8 [2] The defendants argue, as they did by way of an 

9 unsuccessful Rule 50 motion in the district court, that the

10 jury’s verdict was not supported by legally sufficient

11 evidence. We will reverse only if, considering the evidence

12 in the light most favorable to the plaintiffs and drawing

13 all reasonable inferences in their favor, there was “such a

14 complete absence of evidence supporting the verdict that the

15 jury’s findings could only have been the result of sheer

16 surmise and conjecture, or there is such an overwhelming

17 amount of evidence in favor of [the defendants] that

18 reasonable and fair minded jurors could not arrive at a

19 verdict against [the defendants].” Nimely v. City of N.Y.,

20 414 F.3d 381, 390 (2d Cir. 2005) (internal quotation marks

21 and brackets omitted).

22

23 For largely the same reasons stated by Judge Sullivan

24 in his oral decision, we conclude that there was a legally

25 sufficient basis for the verdict. A reasonable jury could

26 have found that three of the relevant factors favored

27 plaintiffs. First, the defendants do not dispute that a

28 reasonable jury could have found that plaintiffs “performed

29 a discrete line-job that was integral to Liberty’s process

30 of production.” Zheng v. Liberty Apparel Co., 355 F.3d 61,

31 72 (2d Cir. 2003) (setting forth the relevant factors). 

32 Second, a reasonable jury could have concluded that the

33 degree to which Liberty Apparel and its principals and

34 agents supervised plaintiffs’ work weighed in favor of

35 plaintiffs given their testimony that representatives of

36 Liberty Apparel supervised plaintiffs’ work an average of

37 three to four times per week for hours at a time and spoke

38 directly to plaintiffs, on at least one occasion directing

39 workers to stop work on another manufacturer’s garments in

40 order to begin work on Liberty’s. Third, a jury could have

41 reasonably concluded that plaintiffs worked predominantly

42 for the defendants, given plaintiffs’ testimony that 70 to

43 80 percent of their work was performed for Liberty.

44

45 Finally, the jury could infer that the defendants knew

46 how much time it would take to do the work Yam contracted to
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1 do, and that Yam would not pay plaintiffs more than he was

2 paid by Liberty. 

3

4 Thus, there was legally sufficient evidence for the

5 jury’s conclusion that the defendants exercised “functional

6 control” over plaintiffs.

7

8 [3] The defendants argue that New York Labor Law § 345-a(1) 

9 provides no private right of action. At oral argument, the

10 panel raised the prospect of certifying this important

11 question to the New York Court of Appeals. Plaintiffs’

12 counsel decided (in our view, sensibly) to abandon the

13 § 345-a(1) claim rather than prolong further this eleven14 year-old litigation. We therefore consider this claim

15 abandoned, and we vacate the § 345-a(1) portion of the

16 district court’s judgment and remand for the district court

17 to dismiss that claim and re-calculate the damages

18 accordingly.

19

20 Finding no merit in the Liberty Defendants’ remaining

21 arguments, we hereby AFFIRM IN PART and VACATE AND REMAND IN

22 PART the judgment of the district court. The mandate shall

23 issue forthwith.

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26 FOR THE COURT:

27 CATHERINE O’HAGAN WOLFE, CLERK

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