Romero v. La Revise Associates L.L.C.
2013 U.S. Dist. LEXIS 132112
S.D.N.Y.2013Background
- Romero sues La Revise Associates, LLC d/b/a Brasserie Ruhlmann, Jean Denoyer, and Regis Marnier for FLSA and NYLL violations.
- Romero seeks conditional approval of a collective action for tipped employees and kitchen staff and notice to potential opt-ins.
- Romero alleges below-minimum wages, improper tip credits, lack of multilingual tip notices, and improper wage statements.
- Defendants deny wrongdoing and contend arbitration agreements with many employees shield individual claims and affect notice.
- Court grants conditional approval and outlines notice scope, including a limited lookback period aligned with the FLSA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Romero and others are similarly situated to the proposed class | Romero and others share a common policy of underpaying tipped employees | Differences exist due to arbitration agreements and individual circumstances | Yes; they are similarly situated for conditional certification |
| Effect of arbitration agreements on conditional certification | Arbitration agreements do not bar conditional certification at the notice stage | Arbitration agreements foreclose court action for those claims | Arbitration issues do not defeat conditional certification at the notice stage |
| Proper lookback period for notice (FLSA vs NYLL) | Notice should extend back six years to cover more potential opt-ins | Use the FLSA three-year limitations period for notice | Three-year lookback for FLSA claims; six-year lookback not adopted for notice |
| Scope of notice and methods (names, addresses, posting, etc.) | Broad dissemination is appropriate to reach all non-exempt tipped/kitchen staff | Defendants’ burden to implement notice should be limited | Notice and consent form approved with specified scope and methods |
Key Cases Cited
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district courts may facilitate notice to potential plaintiffs)
- Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335 (2d Cir. 1978) (notice appropriate in an appropriate case under §216(b))
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two-step process for collective actions; notice as case-management tool)
- Young v. Cooper Cameron Corp., 229 F.R.D. 50 (S.D.N.Y. 2005) (collective action not governed by Rule 23; no numerosity requirement at notice stage)
- Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545 (S.D.N.Y. 2013) (limitations period and notice considerations for FLSA collective actions)
- Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561 (S.D.N.Y. 2012) (arbitration relevance addressed at later stage; not at notice stage)
- McBeth v. Gabrielli Truck Sales, Ltd., 768 F. Supp. 2d 396 (E.D.N.Y. 2011) (notice-stage considerations for FLSA collective actions)