UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------X DANIELA FLORES, on behalf of herself, FLSA Collec�ve Plain�ffs, and the Class,

Plain�ff, 24-CV-3626 (KHP) -against- OPINION AND ORDER ON MOTON TO CERTIFY A CLASS MISSION CEVICHE, LLC, UNDER RULE 23 d/b/a MISSION CEVICHE, MISSION CEVICHE UES INC. d/b/a MISSION CEVICHE, MISSION CEVICHE CANAL LLC, d/b/a MISSION CIVICHE, JOSE LUIS CHAVEZ, BRICE MASTROLUCA, and MIGUEL YARROW,

Defendants. -----------------------------------------------------------------X KATHARINE H. PARKER, United States Magistrate Judge

Plain�ff Daniela Flores worked as a server for Mission Ceviche restaurant on Second Avenue in the Upper East Side of Manhaton from on or about August 2022 through April 2023. She filed this suit in May 2024 for herself and on behalf of similarly situated employees of three Mission Ceviche en��es and three of their individual owners/managers1 for viola�ons of the Fair Labor Standards Act (“FLSA”),

et seq. and the New York Labor Law (“NYLL”), § 190 et seq., in connec�on with Defendants’ alleged failure to pay all earned wages, including over�me wages, due to an alleged policy of �me shaving and use of an invalid �p credit, filing to pay spread of hours premium, improperly deduc�ng meal credits, and failing to provide

1 The Court refers to the Defendants as “Mission Ceviche” and to the Second Avenue loca�on, which is separately incorporated, as “Mission Ceviche UES.” appropriate new hire wage no�ces and wage statements. (ECF No. 1 [“Compl.”] ¶¶ 1, 28.) She also alleges she was terminated in retalia�on for complaining about how Mission Ceviche handled �ps in viola�on of federal and state law. (Compl. ¶¶ 74-77.)

On November 26, 2024, the Court granted Plain�ff’s mo�on for “condi�onal cer�fica�on” under

(b), cer�fying a collec�ve of “all non-exempt employees employed by defendants at any loca�on on or a�er October 19, 2017.” (ECF No. 48, at 1.) Therea�er, no�ce of this ac�on was sent to individuals who worked at Mission Ceviche. Only

two individuals decided to opt-in to the collec�ve – Johnny Rivas and Carlos Torres. (ECF Nos. 76, 77.) It is unclear what posi�ons the opt-in Plain�ffs held. Discovery was ini�ally scheduled to end December 13, 2024. It was later extended to March 17, 2025. (ECF No. 67.) It was then extended to April 30, 2025, and then to June 5,

2025. (ECF Nos. 75, 81.) The Court indicated that Plain�ff’s deposi�on had to be conducted by June 5, 2025, and that discovery deadlines would not be extended further. (ECF No. 81.) The par�es did not take any deposi�ons during discovery. Presently before the Court is Plain�ff’s mo�on pursuant to Federal Rule of Civil

Procedure 23 (“Rule 23”) for cer�fica�on of all current and former non-exempt front-of-house and back-of-house employees (including delivery persons, servers, runners, bussers, porters, bartenders, barbacks, cooks, and dishwashers) who were employed at Mission Ceviche’s Second Avenue restaurant from October 19, 2017 un�l the date of cer�fica�on.2 Plain�ff also moves to

2 The par�es entered into a tolling agreement on October 19, 2023 that tolled the statute of limita�ons. That agreement was later extended by the par�es. (ECF No. 51-1.) cer�fy a subclass consis�ng of that por�on of the above-described group of employees who received �ps. As the Court understands it, the individuals in the larger group consist of individuals whose wages were impacted by improper meal deduc�ons, who did not receive

spread of hours pay, and who did not receive proper new hire wage no�ces and wage statements, whereas the proposed subclass would consist of those employees whose pay was impacted by an improper �p credit and miscalcula�on of over�me under the �p credit.3 A�er careful considera�on of the par�es’ submissions and arguments at the oral

argument on the mo�on held on September 2, 2025, the mo�on for class cer�fica�on is denied, except as to a class of front-of-house �pped employees of Mission Ceviche UES with respect to their claim they are due addi�onal wages because of various deficiencies with the �p credit no�ce and computa�on of pay rates of front-of-house �pped employees as discussed in more detail below.

BACKGROUND FACTS4 Mission Ceviche used to operate two ceviche stands in New York City and one in Connec�cut. Those loca�ons all closed as a result of the COVID-19 Pandemic and never

3 The Court notes that the proposed class and subclass in the mo�on are narrower than those men�oned in the complaint insofar as the proposed class in the mo�on is limited to employees of Mission Ceviche UES.

4 These background facts are taken from the class cer�fica�on submissions as well as the pleadings and other filings. In support of the mo�on, Plain�ff submited payroll records for por�ons of calendar years 2021 (23 weeks), 2022 (23 weeks), and 2023 (17 weeks), Defense Counsel’s “analysis” of the payroll records (which purports to compute the amount of meal credits deducted and minimum wage and over�me due to the employees reflected on the payroll), Defendant’s Responses and Objec�ons to Discovery Requests, and Defendants’ Employee Handbook. Plain�ff also incorporates by reference Plain�ff Flores’ Declara�on submited in connec�on with her mo�on for condi�onal cer�fica�on. (ECF No. 42 [“Flores Decl.”]) In opposi�on to the Mo�on, Defendants submited the Declara�on of Brice Mastroluca, co-founder and co-owner of Mission Ceviche UES Inc., along with certain payroll records and emails related to employee requests to remove deduc�ons for meal breaks. (ECF No. 57 [“Mastroluca Decl.”].) reopened. (Mastroluca Decl. ¶¶ 3-5.) The Second Avenue restaurant, Mission Ceviche UES, opened in or about 2019 and has con�nued opera�ng, although it was shut down between March and July 2020 pursuant to mandatory shutdown orders applicable to New York City

Restaurants. (Id. ¶ 5; see also Business Closures, Stay-at-Home Restrictions, and COVID-19 Testing Outcomes in New York City, Center for Disease Control & Preven�on (Sept. 17, 2020) (referencing business closures), htps://perma.cc/6JNX-KEMS (last visited September 11, 2025); Jen Carlson, Everything You Need to Know About Phase 3 of Reopening NYC, Gothamist (July 6, 2020) (announcing Phase 3 reopening in New York City), htps://perma.cc/9BLS-AZ5U (last

visited September 11, 2025).) Defendants Chavez, Mastroluca, and Yarrow were in charge of the restaurant and supervised employees. (Flores Decl. ¶ 2; ECF No. 51-2, at 6 (iden�fying Mastroluca and Chavez as owners/founders and Yarrow as general manager).) During oral argument on this mo�on, counsel represented that there are approximately 68 front-of-house employees at Mission Ceviche UES. Payroll records reflect over 100 total employees at the Second Avenue loca�on. (See generally ECF No. 51-4.)

Mission Ceviche UES operates 12:00 p.m. to 10:00 p.m. Monday through Thursday, 12:00 p.m. to 10:30 p.m. on Friday, 11:00 a.m. to 10:30 p.m. on Saturday, and 11:00 a.m. to 10:00 p.m. on Sunday. (Mastroluca Decl. ¶ 6.) Mission Ceviche UES schedules employees to work specific shi�s. Shi�s include coming in before the restaurant opens to prepare for the day or staying a�er the restaurant closes to clean, break down tables and count �ps. (Id. ¶ 7.) Plain�ff Flores corroborates that employees were scheduled to work in shi�s. She says

that �pped workers started their shi� one hour before the restaurant opened. For example, she came in at 10:00 a.m. when the restaurant opened at 11:00 a.m. (Flores Decl. ¶ 7.) She states that dinner service ended at 11:30 p.m. at that she and other �pped workers had to stay about one hour a�er closing. (Id. ¶ 8.) However, other evidence strongly suggest that Plain�ff is mistaken about the closing �me of Mission Ceviche UES based on the declara�on of

Mastroluca, the restaurant’s website, and a screen shot of the restaurant’s website submited by Plain�ff. Notably, Plain�ff’s declara�on does not provide the precise opening and closing �mes of the restaurant for different days of the week and does not state what the hours of the two shi�s were or even what her shi�s were.5 Records show Flores worked at Mission Ceviche UES from on or about August 15, 2022, to on or about April 17, 2023. (ECF No. 51-5, at 92; Compl. ¶ 34; but see Flores Decl. ¶ 1 (no�ng

a termina�on date around August 2023).) She atests she typically worked four days per week and eight hours a day for a total of thirty-two hours a week. (Compl. ¶ 35.) She alleged that she was “frequently” asked to work over�me hours, but points to only one week during her employment when she worked 6.53 hours of over�me in the Complaint--her declara�on is silent regarding the over�me she worked. (Compl. ¶ 35.) She alleges in the Complaint that

once a week she was required to stay an addi�onal thirty minutes past her shi� and was not paid for that shi�; however, this allega�on is not repeated in her declara�on or supported by payroll records, and she iden�fies only one week when this occurred. (Compare Compl. ¶¶ 38- 39, with ECF No. 42.)

5 Plain�ff submited from an undated website page showing the restaurant closed at 9:30 p.m.—not 11:30 p.m. ECF No. 41-5. This document also suggests the restaurant opened at 12:00 a.m., which the Court believes to be a typo based on all the other evidence submited and that in fact the opening �me was 12:00 p.m. The hours listed on the current website are consistent with what is contained in Mastroluca’s declara�on. “Upper East Side Loca�on,” Mission Ceviche, htps://perma.cc/9BLV-Z54T (last visited September 11, 2025). During her employment, Plain�ff was compensated at the �p credit minimum wage of $10 per hour and the over�me rate of $15 per hour for a por�on of her employment period.6 (Flores Decl. ¶ 4 & Ex. B.) According to Plain�ff, Defendant Yarrow demanded that all �pped

employees work for half an hour (.5 hour) to count �ps twice per month – resul�ng in 1 hour of off-the-clock �me per month. (Id. ¶ 5.) According to Plain�ff, a server named Giorman Moreno once told her that he worked more hours than shown on his paystub – however, she does not provide any specifics about how many such off-the-clock hours he worked. 7 (Id. ¶ 6.) Plain�ff also suggests that runners Carlos Torres and Nelson Stalin and bussers Victoria8 and Ricardo

Cubillan told her that their paystubs did not reflect all hours worked. But, again, she does not provide any specifics about this. (Id.) Payroll records submited by Plain�ff show total hours varied for servers, with many servers working fewer than 40 hours per week and over�me varying across the board. (ECF No. 51-3 & 51-4; see also ECF No. 41-9 (showing varia�on in over�me hours).) Plain�ff alleges that Mission Ceviche UES improperly computed the over�me rate for �pped employees to be 1.5

6 For at least one pay period -- the pay period ending August 21, 2022 -- she appears to have been paid a minimum wage rate of $15 hour. (Flores Decl., Ex. B.)

7 To the extent that Plain�ff Flores recites hearsay in her declara�on, the Court gives it litle weight. See Fernandez v. Wells Fargo Bank, N.A., 12-cv-7193 (PKC),

, at *8 (S.D.N.Y. Aug. 1, 2014) (considering plain�ffs’ declara�ons and finding “proof of a common policy . . . limited because of the lack of detail concerning the underlying communica�ons” including that the “declara�ons include[d] no dates (not even approxima�ons),” nor did “[t]hey iden�fy [any] of the speakers or par�cipants.”); Stewart v. Hudson Hall LLC, No. 20-cv-885 (PGG) (SLC),

, at *10 (S.D.N.Y. Nov. 29, 2021) (observing that “anecdotal hearsay” is insufficient to demonstrate a widespread policy of failing to pay employees over�me); Barfield v. N.Y. City Health & Hosp. Corp., No. 05-cv-6319 (JSR),

, at *1 (S.D.N.Y. Nov.18, 2005) (disregarding hearsay evidence of compensa�on policy); see also Wal-Mart Stores, Inc. v. Dukes,

(2011) (implying in dicta that evidence submited in connec�on with class cer�fica�on mo�on must meet admissibility of evidence standard); Lujan v. Cabana Management, Inc.,

(E.D.N.Y. 2012) (no�ng not appropriate to consider hearsay in opposi�on to decer�fica�on of FLSA collec�ve that had been “condi�onally cer�fied”).

8 Victoria’s last name is not provided. �mes $10 per hour rather than 1.5 �mes the minimum wage rate of $15 per hour. (Compl. ¶¶ 40-41.) Defendants do not dispute that they applied the wrong over�me rate and that it should have been $17.50 per hour. Plain�ff also alleges that Mission Ceviche was not en�tled

to pay the �p credit rate of $10 per hour because, among other reasons, it did not provide a �p credit no�ce that complied with New York law, did not compute the over�me rate correctly, did not maintain a daily log of �ps, and included non-�pped employees in the �p pool. Defendant disputes that it included non-�pped employees in the �p pool. According to Mastroluca’s declara�on, �ps of �pped staff have never been given to non-�pped staff and the

restaurant itself has never retained the �ps of �pped staff. (Mastroluca Decl. ¶¶ 8, 10.) This conflicts with Plain�ff’s declara�on in which she states that she “recall[s]” that non-�pped employees who were silver polishers and floaters par�cipated in the �p pool.9 (Flores Decl. ¶ 10.) Plain�ff iden�fies Seth Rivera as a non-�pped employee who “only polished glassware and silver” as someone who was included in the �p pool – an asser�on she makes because she only saw him polishing silver and glassware and not bussing. (Id.) She also iden�fies Isaias San�ago

Garcia as a busser who did not actually perform the �pped work of a busser – an asser�on she makes in her mo�on based on her counsel’s interpreta�on of an “XXXX” appearing on some �p records. (Id. ¶ 11 & Ex. 1.) Similarly, Plain�ff suggests employees “Valen�no and Abraham” were included in the �p pool even though they were marked as polishers and “floaters.” (Id. ¶ 10.) She provides no informa�on about what “floaters” did.

9 In her declara�on, Plain�ff complains that she had to give some of her �ps to Gorman Moreno, another server, and speculates that a por�on of his �ps “probably” when to a non-�pped employee or management. Since Moreno, as a server, was en�tled to par�cipate in the �p pool, this allega�on carries litle weight in considering the appropriateness of class cer�fica�on of the requested �pped employee subclass. (Flores Decl. ¶ 12.) Mastroluca submited a declara�on sta�ng that Rivera was in fact a busser, as were other employees whose pay records show them as bussers. (Mastroluca Decl. ¶ 9 & Ex. 1.) He explains that on busy nights, bussers assigned to less busy sec�ons did in fact some�me polish

in addi�on to serving customers. (Id.) He also explains that floaters were bussers assigned to less busy sec�ons who assisted bussers in busier sec�ons in providing service to customers, meaning they were properly included in the �p pool. (Id.) The handbook Plain�ff submited with her mo�on contains a detailed sec�on about �pping and �p credits and �p repor�ng. (ECF No. 51-5, at 40-42.) It states that the �p credit allowable under law will be applied to the

hourly wages of any “Food Service” and/or “Service” employee (i.e., only those eligible for �ps). (Id. at 41.) It makes clear that the amount paid shall equal the cash wage and the amount of �ps received, which must be at least equal to the minimum wage then in effect. (Id. at 41-42.) It also states that if a �pped employee does not earn an average of at least the full minimum wage per hour a�er �ps are included over the course of a week, addi�onal wages are required, and Mission Ceviche will pay the balance to make up the difference. (Id. at 40.) Payroll records

submited by Plain�ff reflect back pay and retroac�ve pay being made to employees. It is unclear whether these payments were made to make up for �mes when a �pped employee did not earn at least the full minimum wage or something else. The par�es do not provide further informa�on about this in their submissions. With regard to off-the-clock �me, Plain�ff’s declara�on states that employees were made to work off-the-clock for about one hour a month. (Flores Decl. ¶ 8.) She also asserts

generally that five other co-workers told her that their pay did not reflect all hours worked but provides no details whatsoever about this. (Id. ¶ 6.) Plain�ff states that meal credit deduc�ons were improperly made to her pay because there was not enough food for her when it was her �me for a break, because Defendants did not provide a fruit or vegetable as part of the meal, and because she was only offered soda.10

(Id. ¶ 13.) Plain�ff’s paystubs reflect that a meal credit was deducted from her paycheck. (Id. ¶ 13 & Ex. 2.) Defendants contend that Mission Ceviche UES provided family meals to its employees that included a salad, a protein, and some form of grain. Employees were free to help themselves to tea, coffee, milk, or juice as well. (Mastroluca Decl. ¶¶ 11-12.) Employees were advised that if they did not want a meal credit deduc�on applied to their paycheck, they

could request that it be removed. And, indeed, evidence submited shows some employees did request that the meal credit deduc�on be removed. (Id. ¶ 11 & Ex. 2.) Plain�ff iden�fies four co-workers who had meal credits deducted from their paystubs and states, based on hearsay, they did not want such deduc�ons. (Flores Decl. ¶ 14.) However, she does not state whether any of those employees ever asked for the meal credit deduc�on to be removed. Nor does she dispute that she was advised that employees could request that it

be removed. Payroll records submited by Plain�ff reflect some servers had deduc�ons for meals and others did not, corrobora�ng Defendants’ evidence about meal credit deduc�ons. (ECF No. 51-4.) Likewise, the handbook submited by Plain�ff states that employees “are relieved of all du�es during the break periods and must clock in and out during their break period.” (ECF No. 51-5, at 37.) It also states that meal breaks are unpaid and that employees

10 Applicable regula�ons require meals to include adequate por�ons of a “variety of wholesome, nutri�ous foods and shall include at least one” fruit or vegetable, grain or potato, protein, and beverage (i.e., tea, coffee, milk or juice). 12 N.Y.C.R.R. 146-3.7. Here, Plain�ff’s declara�on asserts she did not get a salad and was not offered beverages other than soda. are not allowed to voluntarily waive their break periods. (Id.) Finally, it states that if an employee believes there has been an improper deduc�on from their pay or that they have not been paid for all hours worked and there is an error, they should report it to their manager and

that there will be no retalia�on for repor�ng an improper deduc�on. (Id. at 43, 45.) Thus, the handbook par�ally corroborates what Defendants say was the policy about meal breaks. Although the Complaint purports to raise a claim about failure to pay spread-of-hours pay, Plain�ff makes no statements in her declara�on about spread-of-hours pay. The handbook she submited with her mo�on states that hourly employees receive an extra hour of pay at the

basic minimum hourly rate in addi�on to pay for the actual hours worked when their workday is longer than ten hours. (ECF No. 51-5, at 38.) Plain�ff atests that she received wage statements but that they failed to state the proper base hourly and over�me rate, the correct number of hours she worked, or the correct �p amounts based on Defendants’ use of an incorrect over�me rate, failure to provide a proper �p no�ce, and failure to account for her off-the-clock �me. She fails to provide any specifics

when referencing her paystubs. (Flores Decl. ¶¶ 15-16.) She also generally states that based on her “personal observa�ons and conversa�ons,” co-workers had improper wage statements. (Id.) She does not provide any specifics about this or reference their specific paystubs. Plain�ff says nothing in her declara�on about a new hire no�ce. Nor does her declara�on state how she was specifically injured by any deficient no�ce or wage statement. LEGAL STANDARD

Class treatment is “an excep�on to the usual rule that li�ga�on is conducted by and on behalf of the individual named par�es only.” Califano v. Yamasaki,

, 700–01 (1979); Wal-Mart Stores, Inc. v. Dukes,

(2011). The class representa�ve must “possess the same interest and suffer the same injury as the class members.” Schlesinger v. Reservists Comm. to Stop the War,

(1974); Dukes,

.

Federal Rule of Civil Procedure 23 sets forth the criteria that must be met for a case to proceed as a class ac�on. Rule 23(a) requires that (1) the class be “so numerous that joinder of all members is imprac�cable;” (2) there are “ques�ons of law or fact common to the class;” (3)“the claims or defenses of the representa�ve par�es are typical of the claims or defenses of

the class;” and (4) the “representa�ve par�es will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). In addi�on, implied in Rule 23(a) is the requirement that membership of the class be objec�vely ascertainable. In re Petrobras Sec. Litig.,

(2d Cir. 2017). This requirement “demands that a class be sufficiently definite so that it is administra�vely feasible for the court to determine whether a par�cular individual is a member.”

(quo�ng Brecher v.

Republic of Argentina,

(2d Cir. 2015)) (internal quota�on marks omited). “A class is ascertainable when defined by objec�ve criteria ... and when iden�fying its members would not require a mini-hearing on the merits of each case.” Brecher, 806 F.3d at 24–25. Provided the above criteria are sa�sfied, the plain�ff also must show that one of the three requirements of Rule 23(b) is met.

In this case, Plain�ff argues the requirements of Rule 23(b)(3) are met. That provision requires the court to find that “ques�ons of law or fact common to class members predominate over any ques�ons affec�ng only individual members, and that a class ac�on is superior to other available methods for fairly and efficiently adjudica�ng the controversy.” Fed. R. Civ. P. 23(b)(3). The Rule lists four maters courts must consider in evalua�ng whether Rule 23(b)(3) is sa�sfied. They include: “(A) the class members’ interests in individually controlling the prosecu�on or defense of separate ac�ons; (B) the extent and nature of any li�ga�on

concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentra�ng the li�ga�on of the claims in the par�cular forum; and (D) the likely difficul�es in managing the class ac�on.”

These listed maters are not exhaus�ve, however. Advisory Commitee Notes to Rule 23 (1966). For example, where the amounts at stake for individuals are small, separate suits may be imprac�cable for not only the puta�ve class members, but also burdensome on the party opposing the class and the court.

The Advisory Commitee Notes explain that cer�fica�on under Rule 23(b)(3) “encompasses those cases in which a class ac�on would achieve economies of �me, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.”

As to the predominance requirement, the notes explain that predominance can be sa�sfied “despite the

need, if liability is found, for separate determina�on of the damages suffered by individuals within the class.”

In contrast, class treatment “ordinarily” is not appropriate in situa�ons where there is a likelihood that “significant ques�ons, not only of damages but of liability and defenses of liability, would be present, affec�ng the individuals in different ways.”

At botom, the class ac�on procedure must be superior to other ways of proceeding.

The superiority requirement challenges the court to ascertain whether the class procedure is the

most prac�cal way of handling the “total controversy” and achieving efficiencies by reducing repe��ous discovery, mo�on prac�ce and the like.

Rule 23(c)(4) provides that “[w]hen appropriate, an ac�on may be brought or maintained as a class ac�on with respect to par�cular issues.” Fed. R. Civ. P. 23(c)(4). Addi�onally, “[w]hen appropriate, a class may be divided into subclasses that are each treated

as a class.” Fed. R. Civ. P. 23(c)(5). The court also may alter or amend a decision gran�ng or denying class cer�fica�on before final judgment. Fed. R. Civ. P. 23(c)(1)(C). A mo�on for class cer�fica�on should not become a “mini-trial of substan�al por�ons of the underlying li�ga�on;” the ques�on before the Court is whether the plain�ff meets Rule 23’s

requirements, not whether the plain�ff will prevail on the merits. In re Initial Pub. Offerings Sec. Litig.,

(2d Cir. 2006), decision clarified on denial of reh'g,

(2007). At the same �me, the Court's analysis under Rule 23 must be “rigorous,” Dukes,

, which may require it to “probe behind the pleadings” and consider issues that “overlap with the merits of the plain�ff's underlying claim.” Comcast Corp. v. Behrend,

(2013)

(internal quota�on marks and cita�ons omited). Plain�ffs bear the burden of showing that Rule 23’s requirements are sa�sfied by at least a preponderance of the evidence. In re U.S. Foodservice Inc. Pricing Litig.,

(2d Cir. 2013). In determining the appropriateness of class cer�fica�on, the court may consider the par�es' pleadings, declara�ons and appended suppor�ng materials. Heredia v. Americare, Inc., No. 17-cv-6219 (WHP),

, at *2 (S.D.N.Y. May 23, 2018) (“[A] court may

consider material outside the pleadings in determining the appropriateness of class cer�fica�on”). DISCUSSION Defendant argues that class cer�fica�on should be denied because Plain�ff has not sa�sfied Rule 23(a) commonality or typicality and is not an adequate representa�ve insofar as she has interests that conflict with employees who she claims should not have par�cipated in

the �p pool. They also argue that Plain�ff has not sa�sfied Rule 23(b)(3) predominance because individualized issues predominate, especially on the issue of whether any par�cular employee was improperly included in the �p pool by virtue of performing du�es other than that of a busser, whether any individual worked off-the-clock or worked over�me at all, and whether any individual actually objected to meal break deduc�ons or knew they could have asked for such

deduc�ons not to be made. They contend class cer�fica�on is premature because discovery is incomplete – Plain�ff cancelled her deposi�on twice and refused to appear before the June 5, 2025 deadline set by the Court. Defendants also point to conflicts in Plain�ff’s submissions, including that she misrepresents when the restaurant was open for business and omits that she was paid for pre- or post-opening �me. They also point to the fact that records show a significant por�on of the proposed class did not work over�me – their hours reflect far less than

40 hours per week. They say this means that many class members may not have the same injuries as Plain�ff or be en�tled to over�me pay. They also contend that there is insufficient evidence concerning back-of-house employees and delivery workers for them to be included in any class and cri�cize Plain�ff’s reliance on hearsay.

1. Rule 23(a) a. Numerosity In the Second Circuit, there is a general presump�on that if a class has more than forty members it will sa�sfy Rule 23(a)’s numerosity requirement because joinder of more than that number of par�es would be imprac�cable. Consol. Rail Corp. v. Town of Hyde Park,

, 483 (2d Cir. 1995); In re Vitamin C Antitrust Litig.,

(E.D.N.Y. 2012). Here, there is no dispute that the proposed class and subclass consist of more than forty individuals.

Numerosity is therefore sa�sfied. b. Commonality To sa�sfy commonality, Plain�ff must show that there are ques�ons of law or fact common to the class. Johnson v. Nextel Commc’ns Inc.,

(2d Cir. 2015). Said another way, the class claims must “depend upon a common conten�on . . . capable of classwide resolu�on.” Dukes,

. Commonality therefore “turns on the ability of

the ac�on to generate common answers apt to drive the resolu�on of the li�ga�on.” Elisa W. v. City of New York,

, 123 (2d Cir. 2023) (quo�ng Dukes,

) (internal quota�on marks and cita�on omited). The Supreme Court has further explained that the outcome of the common ques�on “will resolve an issue that is central to the validity of each one of the claims in one stroke.”

Commonality under Rule 23(a)(2) “is generally considered a

low hurdle easily surmounted.” In re Marsh & McLennan Cos., Inc. Sec. Litig., No. 04-cv-8144 (CM),

, at *9 (S.D.N.Y. Dec. 23, 2009). A single common ques�on of fact or law suffices to sa�sfy this element. Dukes,

. Moreover, claims of individual class members need not be iden�cal. All that is required is that there are “issues whose resolu�on will affect all or a significant number of” the class. Johnson.,

. Here, there are several common issues whose resolu�on will affect all or a significant

number of the proposed subclass of front-of-house �pped employees. That common issue is whether Mission Ceviche provided proper �p credit no�ce and whether Mission Ceviche properly computed the over�me rate for �pped employees. Plain�ff’s declara�on and the payroll records are sufficient to demonstrate that these are common issues that can be shown through common evidence at least with respect to front-of-house �pped employees. Plain�ff

provides no evidence of improper �p credit being made for delivery workers and, indeed, no evidence concerning delivery workers at all. And she acknowledges that back-of-house employees are not properly included in the proposed �pped subclass. Mission Ceviche does not meaningfully dispute that it improperly computed the over�me rate for �pped employees, although it points out that only a handful of employees worked over�me such that a large

por�on of the proposed class was not damaged. Nevertheless, as to the threshold issue of commonality, it is sa�sfied with respect to the proposed subclass of front-of-house employees who allegedly were subject to an improper �p deduc�on. Plain�ff argues in a cursory manner that there is commonality as to her claim that Defendants improperly deducted for meals. She bases her claim on her asser�on in her declara�on that she personally felt there was not enough to eat, and she was not provided fruit

or vegetables or offered coffee, tea, milk or juice. She also relies on vague hearsay that five front-of-house co-workers were “very angry” about meal deduc�ons. She submits no evidence regarding back-of-house employees or delivery workers. Defendants submit a declara�on describing with more detail the meals provided, sta�ng that it complied with applicable regula�ons and documenta�on indica�ng that employees were allowed to request and have meal break deduc�ons removed from their pay. Addi�onally, the payroll records submited by

Plain�ff show that meal deduc�ons were not made for everyone, and the handbook submited by Plain�ff indicates that employees could raise a concern about deduc�ons from pay with Mission Ceviche. Thus, it appears that there are individualized issues regarding whether employees accepted meal break deduc�ons or asked them to be removed. On balance, Plain�ff has not demonstrated common issues regarding meal break deduc�ons for the proposed class

by a preponderance of the evidence. There is insufficient evidence showing a common policy of requiring off-the-clock work for all employees of the proposed class. Plain�ff’s proof consists of her declara�on, which is cursory at best and limited to her own experience, together with uncorroborated and unspecific hearsay from a handful of front-of-house employees that their pay did not reflect all hours

worked. The handbook somewhat contradicts these asser�ons in that it indicates employees are to be paid for all hours worked and should report to management if their paycheck does not reflect all hours worked. Plain�ff submits no evidence of off-the-clock work by back-of-house or delivery workers. See Fernandez v. Wells Fargo Bank, N.A., No. 12-cv-7193 (PKC),

, at *5-6 (S.D.N.Y. Aug. 28, 2013) (concluding that the plain�ff did not establish by a preponderance of evidence that the personal bankers were subject to a common policy to limit

their recorded hours or require off-the-clock work; finding value of the declara�ons limited because they contained hearsay and lacked detail concerning alleged communica�ons from managers about limi�ng over�me and off-the-clock work, including lack of dates as to when the communica�ons took place, and failed to iden�fy par�cipants in the communica�ons); Ruiz v. Citibank, N.A.,

(S.D.N.Y. 2015) (finding that there was insufficient evidence to demonstrate a common policy of failing to compensate personal bankers for

over�me worked), abrogated on other grounds by Scott v. Chipotle Mexican Grill, Inc.,

(2d Cir. 2020). On balance, Plain�ff has not met her burden to show commonality on this issue as to the proposed class. Similarly, there is insufficient evidence showing there was a common policy of failing to

pay spread-of-hours pay to the proposed class. The handbook submited shows that Mission Ceviche’s policy was to pay spread-of-hours pay as required under New York law, and it informed employees to tell management if they believed their pay was incorrect. Plain�ff’s declara�on does not state that she personally worked more than ten hours in any day and was not paid for it. Indeed, there is no evidence that Plain�ff ever worked more than ten hours in

any day. There is no evidence that any other employees in the proposed class worked more than ten hours in any day and were not paid for it. Thus, Plain�ff fails to show commonality as to this issue for the proposed class. See Bondi v. New Rochelle Hotel Assocs., No. 17-cv-5681 (KMK) (LMS),

, at *17 (S.D.N.Y. Dec. 7, 2018) (holding that plain�ffs’ anecdotal evidence failed to show a common policy and finding that the declara�ons provided by plain�ffs were “conclusory and lack[ed] the kind of precision and detail from which the Court

might infer a uniform policy on the part of Defendants to deny compensa�on to their employees.”). Plain�ff’s brief is largely silent as to wage no�ces and is cursory with regard to wage statements. Plain�ff provides no evidence whatsoever regarding non-�pped workers’ or delivery workers’ wage no�ces or wage statements. She provides only conclusory asser�ons about unspecified “conversa�ons” she had with five co-workers about their pay stubs being

inaccurate. Addi�onally, she fails to explain in her declara�on what concrete injury she suffered from incorrect wage statements. And her claim that her wage statements were incorrect is premised in part on it reflec�ng incorrect hours worked or other incorrect pay – issues that can’t be demonstrated by common proof as discussed above. Other informa�on Plain�ff and Defendants submited, including payroll records, suggest that at least some members of the

proposed class received proper pay such that Defendants may have an affirma�ve defense to any wage no�ce or wage statement claim. Addi�onally, there is a total lack of evidence of concrete injuries suffered by any member of the proposed class – there are only asser�ons in the complaint. Thus, there appear to be individualized inquiries needed to ascertain whether there are affirma�ve defenses to this claim and whether any class member even has a valid claim or concrete injuries from any deficiencies in their wage no�ces or wage statements. See,

e.g., Chang v. Loui Amsterdam, Inc., No. 19-cv-3056 (RER),

, at *12 (E.D.N.Y. Sept. 29, 2022) (quo�ng

(1-b)); Ying Ying Dai v. ABNS NY Inc.,

, 661 (E.D.N.Y. 2020) (“Under Sec�on 198(1-b), employers have an affirma�ve defense if they pay their employe[e]s properly.”); Santiago v. Home Infusion Grp., Inc., No. 20-cv-5455 (ENV) (LB),

, at *6 n.11 (E.D.N.Y. June 7, 2022) (recognizing legi�macy of affirma�ve

defense that “complete and �mely payment of all wages ... serves as an affirma�ve defense to a wage no�ce or wage statement claim.”) (internal quota�ons and cita�ons omited), report and recommendation adopted,

(E.D.N.Y. Dec. 19, 2022); Tortorici v. Bus-Tev, LLC, No. 17-cv-7507 (PAC) (KHP),

, at *14-15 (S.D.N.Y. Sept. 14, 2021) (recognizing affirma�ve defense pursuant to NYLL § 198(1-d) that to failure to provide proper wage statements under Sec�on 195(3) where Plain�ff was always paid in �mely manner).

The Supreme Court has made clear that every class member must have Ar�cle III standing in order to recover individual damages and that plain�ffs must demonstrate standing for each claim that they press and for each form of relief that they seek. TransUnion LLC v. Ramirez,

(2021). And, in a recent case interpre�ng TransUnion LLC, the Second Circuit held that a plain�ff must show “some causal connec�on between the lack of

accurate no�ces and the downstream harm” sufficient to confer Ar�cle III standing. Guthrie v. Rainbow Fencing Inc.,

, 308 (2d Cir. 2024). As noted above, Plain�ff says nothing in her declara�on about her concrete injuries from the allegedly improper wage no�ces and wage statements she received or the injuries of any other member of the proposed class.

For all these reasons, Plain�ff has failed to show commonality with regard to the proposed wage no�ce and wage statement claims of the proposed class by a preponderance of evidence. See Charles v. Pinnacle Too, LLC, No. 22-cv-4232 (DEH) (JW),

, *13 (S.D.N.Y. Oct. 15, 2024) (observing that a finding that plain�ffs were paid the wages they were owed eliminates the basis for finding a concrete injury sufficient to establish standing, such that,

“no wage viola�ons [means] no standing”). Thus, Plain�ff has demonstrated threshold commonality only as to the improper �p credit claim for a subclass of front-of-house �pped employees.

c. Typicality The typicality requirement is “not demanding.” In re EVCI Career Colleges Holding Corp. Sec. Litig., No. 05-cv-10240 (CM),

, at *13 (S.D.N.Y. July 27, 2007). It is sa�sfied if “each class member’s claim arises from the same course of events and each class member

makes similar legal arguments to prove the defendant’s liability.” In re Flag Telecom Holdings, Ltd. Sec. Litig.,

(2d Cir. 2009) (internal quota�on marks omited). Thus, where the claims of a class stem from a single course of conduct, “the commonality and typicality requirements of Rule 23(a) tend to merge.” Dukes,

n.5 (quo�ng Falcon, 457 U.S. at 157–58, n.13) (cleaned up).

For largely the same reasons discussed above, the only claim for which Plain�ff has demonstrated typicality is with respect to the improper �p credit claim for the proposed front- of-house �pped subclass. See Fernandez,

, *13 (no�ng the same reasons for finding no commonality supported a finding of no typicality).

d. Adequacy and Ascertainability The fourth element of Rule 23(a) requires that “the representa�ve par�es will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). When assessing this element, the Court also evaluates whether Plain�ffs’ atorneys are qualified, experienced, and able to conduct the li�ga�on and whether Plain�ffs’ interests are antagonis�c to those of the proposed class. Baffa v. Donaldson, Lafkin & Jenrette Sec. Corp.,

, 60 (2d Cir. 2000); see also Amchem Prods., Inc. v. Windsor,

(1997). Here, Defendant does not contest the adequacy of Plain�ffs’ counsel, who the court finds is adequate based on the

submissions and counsel’s experience handling hundreds of wage and hour cases, including class cases. Defendants contest the adequacy of Plain�ff serving as class representa�ve because they argue she has a conflict with the back-of-house employees she seeks to represent insofar

as they allegedly improperly received �ps. This conflict argument has merit but is moot given the Court’s findings above. Plain�ff is adequate to represent the proposed subclass of front-of- house �pped workers allegedly subjected to an improper �p credit and who were consequently paid the incorrect rates, as she herself says she has these claims and defendants offer no compelling reason to find otherwise.

Courts impose an ascertainability requirement when determining whether class cer�fica�on is appropriate. This requirement means that it must be “administra�vely feasible for a court to determine whether a par�cular individual is a member of the class [and t]he Court must be able to make this determina�on without having to answer numerous individualized

fact-intensive ques�ons.” Fogarazzao v. Lehman Bros.,

(S.D.N.Y. 2005) (cleaned up). The Second Circuit has described ascertainability as a “modest threshold” to meet that “will only preclude cer�fica�on if a proposed class defini�on is indeterminate in some fundamental way.” In re Petrobras Sec.,

. Here, Defendant does not contest ascertainability and, in any event, the court finds that the proposed members of the front-of-

house �p credit class are ascertainable through reference to personnel and payroll records. 2. Rule 23(b) In light of the above, I address Rule 23(b)(3) only with regard to the proposed front-of-

house �p credit class. To obtain cer�fica�on under Rule 23(b)(3), common issues must predominate, and class treatment must be superior to individual ac�ons. “‘Predominance is sa�sfied if resolu�on of some of the legal or factual ques�ons that qualify each class member's case as a genuine controversy can be achieved through generalized

proof, and if these par�cular issues are more substan�al than the issues subject only to individualized proof.’” Waggoner v. Barclays PLC,

(2d Cir. 2017) (quo�ng Roach v. T.L. Cannon Corp.,

(2d Cir. 2015)). This requirement is “far more demanding” than the commonality requirement under Rule 23(a)(2). Amchem Prods., 521 U.S. at 623–24. Designed to test the proposed class's cohesiveness, the predominance inquiry “asks whether

the common, aggrega�on-enabling issues in the case are more prevalent or important than the non-common, aggrega�on-defea�ng individual issues.” Tyson Foods, Inc. v. Bouaphekeo,

(2016) (cleaned up). This is a qualita�ve, not quan�ta�ve, inquiry, where the Court “must account for the nature and significance of the material common and individual issues in the case.” In re Petrobras Sec.,

. “When ‘one or more of the central

issues in the ac�on are common to the class and can be said to predominate, the ac�on may be considered proper under Rule 23(b)(3) even though other important maters will have to be tried separately, such as damages or some affirma�ve defenses peculiar to some individual class members.’” Tyson Foods, Inc.,

(quo�ng 7AA C. Wright, A. Miller, & M. Kane, Fed. Prac. & Proc. § 1778, pp. 123-24 (3d ed. 2005) (footnotes omited)). That damages may need to be determined on an individualized basis does not defeat

cer�fica�on. Roach,

(holding that damages do not need to be “measurable on a classwide basis” to sa�sfy Rule 23(b)(3) predominance; interpre�ng Comcast Corp. v. Behrend,

(2013), as requiring only that “a model for determining classwide damages relied upon to cer�fy a class under Rule 23(b)(3) must actually measure damages that result from the class's asserted theory of injury” and not “that proponents of class cer�fica�on must rely upon a classwide damages model to demonstrate predominance”). Thus, courts recognize

that in the wage and hour context, “establishing a uniform prac�ce or scheme” that deprives the proposed class of over�me wages “may cons�tute a significant step towards establishing liability to all class members” and jus�fy a finding of predominance even if exact hours worked cannot be proven on a classwide basis. Bolanos v. Norwegian Cruise Lines Ltd.,

(S.D.N.Y. 2002); see also Ramos v. SimplexGrinnell LP,

(E.D.N.Y.

2011) (no�ng that wage claims are especially suited to class li�ga�on despite differences in hours worked, wages paid, and wages due), vacated in part on other grounds,

(2d Cir. 2014). Here, Plain�ff has proposed a common method of determining liability and compu�ng

damages for those members of the front-of-house �pped employees. By reviewing payroll records, the par�es can easily ascertain who in this class was short-changed on pay given that it is undisputed Defendants did not apply the proper �p credit rate to over�me. Similarly, common tes�mony about �p credit policy and no�ce and payroll records can reveal who among this group who did not work over�me are due addi�onal straight �me pay. The court also finds

that given the low dollar value of the individual claims, the rela�vely modest size of the class, the fact that all members of the class worked in one loca�on and that common evidence will be used to prove the claims, superiority is sa�sfied. Thus, Plain�ff has sa�sfied Rule 23(b) as to this class.

CONCLUSION For the reasons set forth above, the mo�on for class cer�fica�on is granted insofar as the Court cer�fies a class of front-of-house employees of Mission Ceviche UES with respect to their claim that they are due addi�onal straight �me and/or over�me pay because of defects in

the �p credit no�ce, failure to maintain a daily log of �ps, and miscalcula�on of the �p credit overtime rate. Because Mission Ceviche UES did not open until sometime in 2019, the class period runs from the date Mission Ceviche UES opened in 2019 to the date of this Opinion and Order. The motion for class certification is otherwise denied.

The parties shall meet and confer regarding proposed class notice and submit such notice to the Court by no later than September 26, 2025. Insofar as discovery is complete, any motion for summary judgment on Plaintiff’s or the opt-in Plaintiffs’ individual claims is due October 31, 2025. No pre-conference letter is required. Opposition to any summary judgment motion is due November 28, 2025. Reply due December 12, 2025.

A pre-trial conference is scheduled for February 17, 2026, at 10:00 a.m. in Courtroom 17D.

The Clerk is respectfully directed to terminate the motion at ECF No. 49.

SO ORDERED

Dated: September 12, 2025 New York, New York Ke: hart H fe Ler

KATHARINE H. PARKER United States Magistrate Judge

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