Lu v. Purple Sushi, Inc.

Background

Qiang Lu and Yongbing Qi sued Purple Sushi Inc., Xing Chen, Yami Yami Inc., Jian Fu Zhuo, Minjie Wang, Zenan Li, and Peiguan Zhuo. The opinion states that Purple Sushi Inc. and Xing Chen currently own and operate Matsu Sushi, while the Yami Yami defendants previously owned and operated it. Plaintiffs alleged violations of the Fair Labor Standards Act (FLSA) and New York Labor Law, including failures to pay minimum wages and overtime and to comply with other New York wage requirements.

Plaintiffs moved for conditional certification of an FLSA collective action. Conditional certification at this stage allows potential participants to receive notice and decide whether to join the case; it does not decide the claims' merits. Plaintiffs sought notice to all non-managerial employees who worked at Matsu Sushi during the three years preceding the complaint, along with production of contact information, several notice methods, and equitable tolling of the limitations period.

Conditional Certification Standard

The court applied the two-stage process used for FLSA collective actions in the Second Circuit. At the first stage, plaintiffs had to make a modest factual showing that they and potential participants were victims of a common policy or plan violating the FLSA and were similarly situated. The court emphasized that it would not weigh the underlying merits at this stage. A later, more demanding review based on discovery could result in the collective being decertified, and opt-in plaintiffs' claims could then be dismissed without prejudice.

Ruling on the Proposed Collective

The court granted in part and denied in part plaintiffs' motion for conditional certification. It found that plaintiffs met the modest showing for delivery persons. Their affidavits described long weekly hours, flat monthly pay, interrupted meal breaks, and alleged conversations and observations concerning other delivery persons' hours and pay. The court credited the statements that the delivery persons identified by plaintiffs were not paid the minimum wage or overtime.

The court did not extend certification to all non-managerial employees. Plaintiffs offered too little specific information about waiters and kitchen staff, including their names, duties, schedules, hours, and pay. The court found that the assertions about those employees were conclusory and did not establish a factual connection showing that they were similarly situated. The order states that certification for other categories of employees is denied without prejudice, and that plaintiffs must discuss any renewed motion and its timing with the court first.

Notice, Information, and Timing

The court conditionally certified a collective of potential plaintiffs employed as delivery persons at Matsu Sushi at any time between June 27, 2016, and the present. It selected the three-year notice period because plaintiffs alleged willful FLSA violations and defendants did not object to using three years for notice purposes.

Defendants were ordered to provide plaintiffs' counsel with a list of all delivery persons employed at Matsu Sushi during that period, in Excel or an equivalent format. The information was to include names, last known mailing addresses, phone numbers, email addresses, and applicable WhatsApp, WeChat, and Facebook information. Notice could be sent in any relevant language by mail, email, text message, or social-media platform and could be posted on plaintiffs' counsel's website. The court did not allow posting in Matsu Sushi's common area. Plaintiffs' request for a reminder notice halfway through the opt-in period was granted. The opt-in period was set at 60 days.

The parties were directed to meet and confer about the proposed notice and consent form and submit one for the court's consideration by April 19, 2020. If they could not agree, they were to submit their competing positions and clearly marked proposed language.

Equitable Tolling

The court denied plaintiffs' request for equitable tolling. Equitable tolling can extend a limitations period in rare and exceptional circumstances when a plaintiff has been prevented from timely exercising legal rights. The court found that this case did not present those circumstances, while noting that it could address tolling questions concerning particular opt-in plaintiffs later if necessary.

Disposition

The motion for conditional certification of the FLSA claims was granted in part and denied in part. The delivery-person collective was conditionally certified; certification for other employee categories was denied without prejudice; and the request for equitable tolling was denied. The order did not decide whether defendants actually violated the FLSA or New York Labor Law.