Whitehorn v. Wolfgang's Steakhouse, Inc.
767 F. Supp. 2d 445
S.D.N.Y.2011Background
- Plaintiffs sue Wolfgang's Steakhouse under the Fair Labor Standards Act and New York law, seeking conditional collective action certification and court-facilitated notice.
- Defendants do not oppose conditional certification or notice but contest certain discovery and notice provisions.
- Court applies Rule 216(b)'s modest burden standard and extends conditional certification finding Plaintiffs are similarly situated to other tipped employees at Wolfgang's NY restaurants.
- Court orders production of Social Security numbers for those whose mailings were returned or contact information is unavailable, subject to a confidentiality agreement.
- Court grants posting of the Court-approved notice in Wolfgang's NY restaurants and approves amendments to the notice form.
- Court denies equitable tolling at this stage, reserving tolling determinations for individual later motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to conditionally certify a collective action under 216(b). | Whitehorns argue Plaintiffs are similarly situated to other tipped employees. | Wolfgang's does not oppose certification and argues only specific notice-related issues. | Conditionally certified. |
| Whether to require production of collective members' Social Security numbers. | SSNs are necessary to locate undeliverable or inaccessible members for notice. | SSNs raise privacy concerns and public-record searches can proceed without them. | SSNs ordered for specific undeliverable cases with confidentiality protections. |
| Whether to post the notice at Defendants' NY restaurants. | Posting notices in workplaces aids notice and minimizes delays. | Posting would disrupt business; unnecessary if contact info is available. | Posting at each restaurant granted. |
| Whether to equitably toll the limitations period for potential opt-ins. | Delay in providing contact information warrants tolling. | Tolling is premature and should be evaluated later. | Denied at this stage; tolling may be addressed for individual plaintiffs later. |
| What is the appropriate form and scope of the proposed notice. | Notice should inform potential opt-ins of process, costs, and right to counsel. | Defendants seek amendments restricting language and adding limitations. | Notice amended to include need to appear for discovery/testing, right to retain counsel, and defense counsel contact; other proposed limits rejected. |
Key Cases Cited
- Hoffmann-La Roche v. Sperling, 493 U.S. 165 (Supreme Court 1989) (notice must be accurate and timely to inform potential plaintiffs)
- Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004) (district court has broad discretion over pretrial discovery)
- Colozzi v. St. Joseph's Hosp. Health Ctr., 595 F. Supp. 2d 200 (N.D.N.Y. 2009) (courts may order sensitive information disclosure under confidentiality where needed for notice)
- Iavorski v. United States I.N.S., 232 F.3d 124 (2d Cir. 2000) (equitable tolling may apply for fairness in extraordinary circumstances)
- Gustafson v. Bell Atl. Corp., 171 F. Supp. 2d 311 (S.D.N.Y. 2001) (limitations begin when plaintiff learns or should have learned of facts constituting claim)
- Johnson v. Nyack Hosp., 86 F.3d 8 (2d Cir. 1996) (statutory tolling principles applicable in privacy and notice contexts)