# DOE 1 v. BANC, JACK & JOE, LLC

> District Court, D. New Jersey · June 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10268195

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268195

## How later opinions describe it (automated extraction)

- finding that because defendants failed to notify plaintiffs that “performance fees” (i.e., dancing tips
- holding that to determine a worker’s rights under the FLSA, as employee or independent contractor, the court must look beyond the structure of the parties’ relationship to the economic realities

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JANE DOE 1, individually and on behalf

of all other persons similarly situated,

Civil No.: 17-cv-03843 (KSH) (CLW)
Plaintiff,

v.

BANC, JACK & JOE, LLC dba
TITILLATIONS1 GO-GO BAR, BANC
PERO, JOSEPH CARERI, JACK
OPIN ION
PERO, ABC COMPANIES 1-10 AND
JOHN DOES 1-10,

Defendants.

Katharine S. Hayden, U.S.D.J.

Before the Court is a motion filed on behalf of plaintiff Jane Doe 1 (“Doe”) for
conditional certification, court authorized notice, production of relevant contact
information relative to her lawsuit filed under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 216(b), and class certification pursuant to Federal Rule of Civil Procedure
Rule 23. (D.E. 52.) The Court decides this motion without oral argument, and for the
following reasons grants Doe’s motion for conditional class certification, court-
supervised notice, and class certification.

1 In the complaint this establishment is referred to as “Titilations.” However, its actual name is
“Titillations,” and the Court refers to it as such.
I. Introduction

On May 31, 2017, Doe filed this putative class and collective action (D.E. 1
(“Compl.”)) on behalf of herself and others similarly situated against entity defendant
Banc, Jack & Joe LLC d/b/a Titillations Go-Go-Bar (“Titillations”), individual
defendants Banc Pero (“Pero”), Joseph Careri, Jack Pero, and various fictitious
defendants (collectively, “defendants”). Doe alleges that defendants misclassified her

and members of the putative class as independent contractors and refused to pay them
minimum wage, instead requiring them to pay to work and to share gratuities they
received with defendants and defendants’ employees, in violation of the FLSA and the
New Jersey State Wage and Hour Law (“NJWHL”), N.J.S.A. 34:11-56a, et seq. (Compl.

¶¶ 2, 3.)
In November 2018, Doe first sought conditional certification on behalf of
plaintiff “and all other persons who were employed by defendants anywhere in the State
of New Jersey as dancers or entertainers, or any other equivalent position, and who

were not paid the minimum wage and were misclassified as independent contractors
under the FLSA during the three year period preceding [the] Complaint.” (Id. ¶ 2.) The
Court denied Doe’s motion without prejudice, finding that she failed to meet the
conditional certification standard. (D.E. 14.) The Court also denied her subsequent

motion for reconsideration as untimely. (D.E. 52.)
Doe renews her motion for conditional certification pursuant to 29 U.S.C. §
216(b), and for the first time, requests class certification pursuant to Rule 23. She alleges
that the deposition of Banc Pero, an owner and manager of Titillations, corroborates
her previous sworn declaration that defendants classified all exotic dancers at

Titillations as independent contractors rather than employees, and failed to pay them
minimum wage. (D.E. 52 (“Moving Brief”), at 3-4; see also D.E. 52-3 (“Banc Pero
Deposition”).) Upon conditional certification and class certification, Doe petitions the
Court to: (1) approve her proposed FLSA Notice and Consent to Sue form; (2) mandate

that defendants produce contact information for all dancers who worked at Titillations
during the relevant period, including their addresses, phone numbers, and email
addresses; (3) authorize plaintiff to send two rounds of notice mailings and to contact
potential members by phone if mail is returned as undeliverable; and (4) additionally

require defendants to post notice in Titillations’ back room and dressing rooms and
give personal copies of the notice to all current dancers upon arrival for their first shift.
In addition, Doe requests that all her state law claims proceed as a class action and that
a proposed class action notice be sent to the class members. (D.E. 52-12 (“Proposed

Order”).) Doe is the sole plaintiff; no dancers have opted into the suit.
Defendants oppose Doe’s motion in its entirety, describing her request for
conditional certification as “nothing more than a vindictive act to punish Titillations for

terminating [her] engagement because she violated the club’s rules.” (D.E. 53
(“Opposition Brief”), at 2.) Defendants contend that they have employed a business
model commonly used by other “gentlemen’s clubs” and argue that Doe
mischaracterized Pero’s deposition as new evidence, when in reality it had already been
considered by the Court on her motion for reconsideration. (Id. at 14-15.) In the event
that certification is granted, defendants challenge Doe’s proposed form of notice as

“excessive and unfairly prejudicial.” (Opposition Brief, at 18.) They request that the
Court limit the means of providing notice to regular mail, the type of contact
information to be provided to Doe’s counsel to physical mailing addresses, and the
potential class definition to those who worked or work at Titillations from May 31,

2017 to the present. (Opposition Brief, at 17-21.) Additionally, defendants argue that
the class action should be denied because the class of purported plaintiffs is not
ascertainable given the transitory nature of the exotic dancing industry; Doe cannot
adequately represent the interests of the purported class because she is vengeful and her

interests are therefore antagonistic to the interests of its other members; and that
common questions of law do not predominate because the individual question of
reliance and damages for dancers working different shifts and collecting varying
amounts in tips will overwhelm questions that are common to the class.

II. Factual Background

As alleged in the complaint and supported by Doe’s 2017 declaration (D.E. 14-
1 (“2017 Doe Decl.”)), she worked from August 2016 until January 2017 as an exotic
dancer at Titillations, an adult entertainment nightclub located in Bloomfield, New
Jersey. (Compl. ¶ 8; 2017 Doe Decl. ¶¶ 2, 4.) Doe’s job duties included “dancing on
stage during stage rotation, performing personal dances (also called ‘lap dances’ or
‘private dances’) for customers, and spending time with customers in semi-private
rooms and areas.” (2017 Doe Decl. ¶ 3.)

Doe asserts that she was classified as an “independent contractor” rather than
an employee, and that she “understand[s] that all the dancers who worked at Titillations
at the same time as [she] did were classified the same way.” (2017 Doe Decl. ¶ 5; see
also Banc Pero Deposition.) She alleges that she was not paid an hourly minimum wage

or issued a paycheck, W-2, or 1099, and her sole income was derived from patron tips.
(Compl. ¶¶ 28-30.) Upon information and belief Doe alleges that “over 100 different
women have worked as dancers at Titillations without being paid any minimum
wages[.]” (Id. ¶ 31; see also Banc Pero Deposition.) Individual defendant Banc Pero, an

owner/manager at Titillations, testified that all dancers at Titillations are considered
independent contractors rather than employees and therefore do not receive minimum
wage. (Banc Pero Deposition, at 75:6-15; 76-9-15; 79:23-80:4.)
Doe was required to pay a $30.00 non-negotiable “house fee” or “tip out” to the

manager for each shift she worked, as well as an additional $15.00 to the DJ, regardless
of how much money she earned working her shift. (Compl. ¶ 39; 2017 Doe Decl. ¶ 16.)
Doe alleges that, during her first shift at Titillations, the manager read aloud and gave

to her a written copy of the “rules for the position” and instructed her that these rules
and other expectations posted on the club’s bulletin board were the “official rules of
the club.” (2017 Doe Decl. ¶¶ 14-15.) These “Dancer Info and Rules,” which have
been effective for more than 15 years and apply to all dancers, governed fees,
scheduling, and dancers’ appearance and performance and were posted “conspicuously
in the back room for all dancers to see,” in dressing rooms, and on the Titillations

bulletin boards. (2017 Doe Decl. ¶¶ 18, 21-33; D.E. 52-4, Ex. B (“Dancer Info and
Rules”); Banc Pero Deposition, 38:2-39-6.) The rules state the following: “YOU ARE
CONSIDERED AN INDEPENDENAT CONTRACTOR. YOU ARE NOT AN
EMPLOYEE. YOU WILL NOT GET A PAYCHECK AND YOU ARE NOT ON

OUR BOOKS.” (Dancer Info and Rules, at D0000009.) In addition to this posting,
Doe asserted in her 2017 declaration that she “often spoke with other dancers in the
dressing room” and “observed [them] during their shifts,” and “[b]ased upon these
observations and the many rules posted in the back room, it was clear to [her] that each

and every dancer was subject to the same rules and performed the same job duties as
[she] did.” (2017 Doe Decl. ¶ 20.)
III. Discussion

a. Conditional Certification

“The FLSA establishes federal minimum-wage, maximum-hour, and overtime
guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 569
U.S. 66, 69 (2013). Section 216(b) grants “similarly situated” employees the right to sue
in a collective action. 29 U.S.C. § 216(b). Distinct from class actions brought under
Fed. R. Civ. P. 23, the FLSA requires collective action members to affirmatively opt in
by filing a written consent with the court. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d
239, 242-43 (3d Circ. 2013).
The Third Circuit follows a two-step process when determining if a suit brought
under the FLSA may proceed as a collective action. Symczyk v. Genesis HealthCare Corp.,

656 F.3d 189, 192 (3d Cir. 2011), rev’d on other grounds, Symczyk, 569 U.S. 66 (2013). At
the first stage, “the court makes a preliminary determination whether the employees
enumerated in the complaint can be provisionally categorized as similarly situated to
the named plaintiff.” Id. If the plaintiff satisfies this burden, the court grants

conditional certification “for the purpose of facilitating notice to potential opt-in
plaintiffs and conducting pre-trial discovery.” Camesi, 729 F.3d at 243. At the second
step, the court, with the benefit of a fuller record, “makes a conclusive determination
as to whether each plaintiff who has opted into the collective action is in fact similarly

situated to the named plaintiff.” Id. Plaintiffs must satisfy the preponderance of
evidence standard at the final certification stage. Zavala v. Wal Mart Stores Inc., 691 F.3d
527, 534 (3d Cir. 2012); see also Symczck, 656 F.3d at 193 (“This stage is less lenient, and
the plaintiff bears a heavier burden.”).

To qualify for the initial certification, a plaintiff must make a “modest factual
showing” that the proposed class of employees is “similarly situated.” Id. Courts apply
a “fairly lenient standard,” as this stage “occurs early in litigation when the [district]

court has minimal evidence.” Adami v. Cardo Windows, Inc., 299 F.R.D. 68, 78 (D.N.J.
2014) (Simandle, J.). Still, “a plaintiff must produce some evidence, ‘beyond pure
speculation,’ of a factual nexus between the manner in which the employer’s alleged
policy affected her and the manner in which it affected other people.” Symczyk, 656
F.3d at 193 (citations omitted).

“The [C]ourt does not consider the merits of the dispute at the notice stage, and
the plaintiff must only demonstrate that the potential class members’ ‘positions are
similar, not identical,’ to [her] own.” Steinberg v. TD Bank, N.A., 2012 WL 2500331, at
*5 (D.N.J. June 27, 2012) (citations omitted) (Bumb, J.); Shakib v. Back Bay Rest. Grp.

Inc., 2011 WL 5082106, at *2 (D.N.J. Oct. 26, 2011) (Cavanaugh, J.) (“The merits of the
plaintiff's claim need not be evaluated and discovery need not be completed in order
for such notice to be granted and disseminated.”)

At this stage, the Court is only concerned with whether Doe made the necessary
factual showing, albeit modest, that she and the proposed class are similarly situated as
victims of a common policy or plan that violated the law. Doe renews her argument
that conditional certification is proper because all exotic dancers working at Titillations
were victims of defendants’ alleged misclassification of them as independent
contractors and the related failure to pay them minimum wage. In its November 2018
opinion, the Court agreed with the defendants that “Doe has failed to provide any

evidence, beyond mere unsubstantiated assertions, that the other employees were
treated the same way” as Doe. (D.E. 14, at pg. 6 (internal quotations omitted)).
However, in her present motion, Doe asserts that deposition testimony, which has not
been reviewed by the Court until now, “conclusively establishes that all dancers were
subject to a common policy that violates the FLSA.” (D.E. 52-1, (“Moving Brief”), at
pg. 11.) Doe argues that this new evidence corroborates and substantiates her previous

sworn declaration and therefore provides the Court with the modest factual showing
required.
Significantly, to satisfy the modest standard required at this stage, Doe need only
“produce some evidence, ‘beyond mere speculation’” that this practice or policy exists.

Symczyk, 656 F.3d at 193 (citations omitted). In support of her motion, Doe directs the
Court’s attention to the source of Titillations’ employment policy—Banc Pero,
Titillations’ owner/manager who controls the terms and conditions of Doe’s
employment and who made the decision to designate dancers as independent

contractors. (Opp. Br., at 5-6.) Pero’s testimony clearly establishes that Titillations has
a policy of classifying its dancers as independent contractors.
First, Doe cites to Pero’s admission that for at least 15 years, defendants have
not paid any wages to dancers because they consider them to be independent

contractors. (D.E. 52-3 (“Banc Pero Deposition”), at 75:6-15; 76:9-15.) Additionally,
he testified that all other Titillations workers including barbacks, bartenders, DJs,
managers, and kitchen staff, are considered employees and are all paid above minimum

wage. (Id. at 72:11-73:1; 73:24-74:12.)
In her previous motion, Doe argued that the “only greater proof missing from
the record would be a workplace sign advising that ‘all dancers are independent
contractors and are not paid minimum wage.’” (D.E. 18 (“Jan. 2018 Reply Brief”) at 3.).
She now offers such proof. Doe attaches to her brief the “Dancer Info and Rules,”
which state: “YOU ARE CONSIDERED AN INDEPENDENAT CONTRACTOR.

YOU ARE NOT AN EMPLOYEE. YOU WILL NOT GET A PAYCHECK AND
YOU ARE NOT ON OUR BOOKS.” (Dancer Info and Rules, at D0000009.) Pero
testified that these rules, which has been in effect for a “minimum of 15 years,” apply
to all dancers and are posted “in the hallway for dancers to see.” (Banc Pero

Deposition, 38:2-39:6.) This posting also demonstrates that Doe and all other exotic
dancers were subject to a uniform set of rules regarding what they could wear, in what
style and for how long they could dance, how often and in what manner they may
request tips from customers, where they may eat, and how to conduct themselves

during private dances. (Dancer Info and Rules, at D0000009.)

The Court is satisfied that, based on the new evidence she has presented to the
Court, together with her prior declaration, Doe has made a factual showing that
defendants maintain a company-wide policy of treating members of the putative class
as independent contractors, and thereby has met her fairly lenient burden. Dancers at
Titillations are similarly situated and subjected to a common policy that, if proven,
violates the FLSA. Pero’s deposition testimony, where he concedes that he treats all

Titillations the same—as independent contractors—and acknowledges this designation
is part of the club’s written rules, which are directed at and apply to all dancers,
substantiates Doe’s prior declaration, resolves the Court’s past concerns, and
establishes that defendants have subjected the dancers to a common policy of denying
dancers minimum wage. Indeed, Doe has offered more than a modest factual showing

that she and other members of the putative class are similarly situated; in addition to
defendants uniform policy of classifying them as independent contractors rather than
employees, she has also evidenced that they work or worked at the same location, and
shared the same duties and responsibilities as dancers. See, e.g., Verma v. 3001 Castor,

Inc., 2014 WL 2957453, at *12. (E.D. Pa. June 30, 2014) (conditionally certifying class
based on defendant’s company-wide policy of treating members of the putative class as
independent contractors based on modest factual showing that plaintiff and other
dancers “work or worked at the same location…share the same ‘dancer’ job duties and

responsibilities…and…have been classified as independent contractors.” )
Defendants do not take issue with Pero’s characterization of dancers as
independent contractors nor do they argue that these women are subject to different
rules and policies. In their opposition brief, they readily acknowledge that classification

was a deliberate business decision; Pero consulted with an accountant and performed
his own independent research before categorizing dancers as independent contractors.
(Opposition Brief, at 5-6.) Instead, defendants contend that Doe has mischaracterized

Pero’s deposition as new testimony. But Pero’s deposition was taken on November 20,
2018, the day before the Court filed its first opinion. Although Doe cited to Pero’s
deposition in her motion for reconsideration, the Court denied that motion on
procedural grounds; it was not considered on the merits. (D.E. 45.) Therefore, the
Court considers Pero’s deposition new and compelling evidence.

Defendants also contend that because Doe and other putative class members
earned more money as independent contractors than they would have if they had been
classified as employees—an arrangement which the dancers “knowingly accepted”—
they cannot claim that they were deprived a living wage in violation of the FLSA.

(Opposition Brief, at 11.) Defendants further aver that their “business model…could
never be sustained if its dancers are classified as employees subject to minimum wage.”
(Id.) This argument, which requires the Court to consider the merits of the FLSA claim,
is not properly considered at this stage of the analysis.2

Defendants also stress, as they did in in their prior opposition brief, that Doe is
the only named plaintiff and no other exotic dancers have opted-in. (Opposition Brief,
at 16.) They cite to an unpublished case outside this Circuit, Rodgers v. CVS Pharmacy,
Inc., to support their point that “[c]ertification of a collective action and notice to a

potential class is not appropriate to determine whether there are other[s] who desire to

2 Defendants make other attempts to attack the merits of Doe’s claim. For instance, they cite to Matson
v. 7455, Inc., an unpublished case from the District of Oregon holding that dancers were not employees
for purposes of the FLSA. 2000 WL 1132110 (D. Or. Jan. 14, 2000). Matson’s scant legal analysis is
unpersuasive. The Matson court considered a written agreement between the employer and the dancer
stating she was an independent contractor to be the most “telling indicator” of her status. Self-
imposed labels, like the ones applied by defendants in this case, are not controlling. See, e.g., Hurst v.
Youngelson, 354 F. Supp 3d 1362, n.4 (N.D. Ga. Jan. 28, 2019); Safarian v. American DG Energy Inc., 622
Fed. Appx. 149, 152 (3d Cir. 2015) (holding that to determine a worker’s rights under the FLSA, as
employee or independent contractor, the court must look beyond the structure of the parties’
relationship to the economic realities).
join the lawsuit. Rather, a showing that others desire to opt in is required before
certification and notice will be authorized by the Court.” Rodgers v. CVS Pharmacy, Inc.,

2006 WL 752831, at *3 (M.D. Fla Mar. 23, 2006). Defendants contend that other
dancers have not joined because it is not financially savvy to do so, citing to Doe’s own
testimony in which she states that the dancers “knew [Titillations] as a good place to
make money.” (D.E. 53-3, Ex. B (“Doe Deposition”), at 57:17-20, 75:14-76-13.)

The relevant question before the Court is not whether plaintiffs have opted in,
but rather, whether the named plaintiff has made the requisite factual showing.3 In the
Court’s previous opinion, it faulted Doe for submitting insufficient evidence to support
her claim. However, at this stage, the court “usually has only minimal evidence before

it.” Zavala v. Wal-Mart Stores, Inc., 2010 WL 2652510, at *2 (D.N.J. June 25, 2010) aff’d
sub nom. Zavala v. Wal-Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012). The determination,
therefore, “is made using a fairly lenient standard.” Id. And in this renewed motion,
Doe no longer relies upon her affidavit alone; she has submitted deposition testimony

3 Courts in other districts have required “a showing not only that similarly situated potential plaintiffs
actually exist, but that a substantial number likely have an interest in joining the litigation.” Pecor v. N.
Point EDC Inc., 2017 WL 3723600, at *6 (E.D. Wis. June 9, 2017) (collecting cases). However, this
theory is not universally held, and, significantly, is not observed in the Third Circuit. See, e.g., Camp v.
Bimbo Bakeries USA, Inc., 2019 WL 440567, at *3 (D.N.H Feb. 4, 2019) (“On balance, the court agrees
that it is premature to require plaintiffs to demonstrate, before notice is given, that there are other
potential members of the collective who are interested in participating in this litigation. Defendants
have not produced contact information for the potential opt-in plaintiffs.”). Moreover, the Court is
persuaded that there may in fact be “good reason” why no other dancers have opted in so far. (D.E.
52-11 (“2019 Doe Decl.) ¶ 4.) In her declaration, Doe explains that dancers wear wigs and heavy-make
up, use stage names, and do not interact outside of work. (Id. ¶¶ 4-5.) If Doe was unable to identify
her fellow dancers, she would not have been able to contact them about this matter. (Id. ¶ 4.)
that corroborates and substantiates her previous declaration. Other courts have
approved collective action certifications based on less evidence, even where there was

only one plaintiff. See Gonzalez v. Scalinatella, Inc., 2013 WL 6171311, at *1 (S.D.N.Y.
Nov. 25, 2013) (granting conditional certification motion based on single plaintiff’s
complaint and declaration); Hernandez v. Bare Burger Dio Inc., 2013 WL 3199292, at *1
(S.D.N.Y. June 25, 2013) (approving conditional collective action certification based on

single plaintiff’s declaration confirming that he and other employees were paid less than
minimum wage and not paid overtime, among other issues); Khamsiri v. George & Frank’s
Japanese Noodle Restaurant Inc., 2012 WL 1981507, at *1 (S.D.N.Y June 1, 2012)
(approving conditional collective certification based on single plaintiff's affidavit

“confirming that she and other non-exempt employees employed by defendants in
tipped positions, who performed work similar to hers, were, inter alia, paid less than the
statutory minimum wage and not paid overtime pay.”) Accordingly, the Court is
satisfied that Doe has met the burden required at this stage and will grant conditional

certification.
b. Notice

Upon conditional certification of an FLSA collective action, district courts may
provide court-facilitated notice to potentially eligible members. Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989). This Court therefore has the authority to “supervise
the notification process, including how much time plaintiffs are given to notify class
members, how class members are notified, and what contact information plaintiffs are
afforded.” Steinberg v. TD Bank, N.A., 2012 WL 2500331, at *6 (D.N.J June 27, 2012)
(Bumb, J.) (citing Hoffman-LaRoche, 493 U.S. at 170-172). Notice ensures that employees

receive “accurate and timely notice concerning the pendency of the collective action, so
that they can make informed decisions about whether to participate.” Id.
Defendants challenge the means by which Doe intends to provide the notice and
consent to sue form to potential opt-in plaintiffs. Doe’s proposed order requests that

defendants: (1) produce “a mailing list containing the names, most recent known
addresses and phone numbers, and email addresses of all [current and former exotic
dancers who worked for defendants at any time between May 31, 2014 to the
present]…so that mailing and emailing of the notice may be timely accomplished”; (2)

provide “all telephone numbers [d]efendants might have (if any) for any [potential opt-
in plaintiffs] whose FLSA Notice is returned by the Post Office as undeliverable or
email is rejected”; (3) “post copies of the approved FLSA Notice and Consent to Sue
form…in the dressing room/back room of Titillations”; (4) provide the notice and

consent to sue form “to all current exotic dancers upon arrival for their first shift which
occurs at least thirty days after the date” of the order; (5) mail a copy of the notice and
consent to sue form “to all [ ] potential members of the collective”; (6) and mail a

second copy of the notice and consent to sue form to “all [ ] potential members of the
collective and [ ] attempt to reach the potential members by phone” who have not
responded within 60 days of the order.” (Proposed Order ¶¶ 3-7.)
Doe argues that her proposal for court-approved notice to potential opt-in
plaintiffs meets the timeliness, accuracy, and informational requirements. More

precisely, Doe contends that the proposed notice “describes the lawsuit, informs all
individuals who have worked as exotic dancers for Defendants of their opportunity to
‘opt-in,’ instructs them how to opt-in, and notifies them of the effect of their decision
to opt in.” (Moving Brief, at 15.) Defendants argue that the proposed notice is

“excessive and unfairly prejudicial,” and to the extent the Court grants conditional
certification, they request that it (1) limit the potential class of plaintiffs to only “those
who currently dance or danced at Titillations from May 31, 2017 to the present”; (2)
restrict the means of providing notice to regular mail; and (3) only require defendants

to provide Doe with the mailing addresses of potential plaintiffs. (Opposition Brief, at
17-19).
Generally, sending notices by first class mail and providing the defendants with
home addresses is considered sufficient and “additional information and contact

methods are typically provided only if necessary.” Steinberg, 2012 WL 2500331, at *7.
However, “[i]n this day of electronic communications, courts in this District have found
notice by electronic means in conjunction with first class mail to be an appropriate

method of facilitating notice.” See Sanchez v. Santander Bank, N.A., 2019 WL 6050738,
at *3 (D.N.J. Nov. 15, 2019) (Arpert, J.).
While defendants argue that Doe should be limited to obtaining only mailing
addresses and contacting them via regular mail, electronic communication, such as
email, is now commonplace and does not unduly burden defendants. 4 See id. The
Court will therefore grant Doe’s request that defendants produce the names, last known

addresses, phone numbers, and email addresses of the putative class members. And
with respect to phone numbers, it appears that Doe intends to contact by phone only
those whose mail is “returned by the Post Office as undeliverable or email is rejected.”
(Proposed Order ¶ 3.) The Court further grants Doe’s request for defendants to mail

a copy of the notice and consent to sue form to all potential members of the class and
to send a reminder notice by mail and email to those potential plaintiffs who have not
responded within 60 days. Porter v. Merrill Lynch Pierece Fenner & Smith, Inc., 2018 WL
5874094 (D.N.J. Nov. 9, 2018) (Wolfson, J.) (permitting reminder notice); Gervasio v.

Wawa, Inc., 2018 WL 385189, at *7. (D.N.J. Jan. 11, 2018) (Sheridan, J.) (same). The
Court will also grant Doe’s request that defendants post the relevant documents. The
Court agrees with Doe’s assertion that “dancers may be more transitory than others
who worked for Defendant” and therefore some of “the additional forms of notice are

necessary in this case.” (Reply Brief, at 11.) The Court does not see how requiring
defendant to hang a piece of paper is unduly burdensome or unfairly prejudicial to
defendants. However, the Court understands defendants’ concern about a notice

provision that requires them to directly hand the forms to each dancer when she arrives

4 Although defendants objected to the production of certain materials, much of the requested
information, such as the email addresses of the putative class members, “may be properly discovered
to facilitate notice of a FLSA collective action.” Pearsall-Dineed v. Freedom Mortg. Corp., 27 F.Supp.3d
567, 575-75 (quoting Hoffman-LaRoche, 493 U.S. at 170) (Irenas, J.)
for her first shift. Given the other forms of notice that have been granted, this method
is unnecessarily duplicative. The Court therefore denies Doe’s request that defendants

hand out the notice forms, but otherwise grants all requested forms of notice as they
are necessary to further the broad remedial purposes of the FLSA and ensure that
potential collective action members receive accurate and timely notice of the action. See
Verma, 2014 WL 2957453, at *13 (granting plaintiffs request that defendant post the

notice of suit in a conspicuous place in its nightclub); Garcia v. Pancho Villa’s of Huntington
Village, Inc., 678 F.Supp.2d 89, 96 (E.D.N.Y. Jan. 15, 2010) (allowing notice of FLSA
action to be posted at all of defendant's business locations).
Defendants also challenge the makeup of the potential class of defendants. The

statute of limitations for FLSA claims is two years, or three years in the case of willful
violations. 29 U.S.C. § 255(b). And plaintiffs have six years from the date a complaint
is filed to bring a claim under the NJWHL. N.J.S.A. § 34:11-56a25.1. Doe filed her
complaint on May 31, 2017 and proposes that notice be sent to all dancers who worked

at Titillations from May 31, 2014 through the present.
Defendants ask that the Court limit the potential class of plaintiffs to those who
currently dance or danced at Titillations from May 31, 2017 to the present. (Opposition

Brief, at 18.) They argue that the two-year statute of limitations should apply, rather
than the three-year period, because Doe cannot demonstrate that defendants’
classification of dancers as independent contractors was willful. The Court will not
limit the time this of this notice period. A violation is willful where “at a minimum, the
employer ‘showed reckless disregard for the matter of whether its conduct was
prohibited by the [FLSA].’” Stone v. Troy Constr., LLC., 935 F.3d 141, 148 (3d Cir. 2019)

(quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132-33) (1988)). It is premature
for the Court to decide whether defendants acted willfully before the parties have
engaged in full discovery. Whether defendants acted willfully is “an issue of fact that
should be decided by a factfinder at trial and we decline to limit the potential size of the

collective based on the limited record now before us.” Rocha v. Gateawy Funding
Diversified Mortgage Services, L.P., 2016 WL 3077936, at *8 n.6 (E.D. Pa June 1, 2016)
(citing Chung v. Wyndham Vacation Resorts, Inc., 2014 WL 4437638, at *4 (M.D. Pa. Sept.
9, 2014).

c. Class Action

In addition to conditional certification of her FLSA claims, Doe also seeks Rule
23 class certification of her state law claims. Doe alleges that defendants violated the
NJWHL by improperly classifying her and similarly situated dancers as independent
contractors, failing to pay them minimum wage, and forcing them to share portions of
their tips with the club and other employees. She also alleges that defendants were
unjustly enriched because class members conferred a substantial benefit upon

defendants by working without pay and being required to share tips with defendants
and their nontipped employees. Additionally, Doe alleges that the misclassification and
the related requirement to share gratuities was a misrepresentation by defendants that
constitutes common law fraud.5

Class actions are “an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348 (2011) (internal quotations omitted). Thus, to justify a departure from
the general rule that each litigant proceeds with her own action, “a class representative

must be part of the class and possess the same interest and suffer the same injury as the
class members.” Id. at 348-48 (internal quotations omitted). “Rule 23 does not set
forth a mere pleading standard.” Id. at 350. Therefore, a plaintiff who attempts to
certify a Rule 23 class must produce evidence sufficient to demonstrate her compliance

with the rule. See id. at 350-51. And the Court must undertake a “rigorous analysis” of
the Rule 23 requirements, which often involves “some overlap with the merits of the
plaintiff’s underlying claim.” Id. (citations omitted).
To be certified, a class must satisfy the four threshold requirements of Rule 23(a):

“(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.” In

5 Defendants argue that the unjust enrichment claim should be dismissed because dancers were “not
denied a benefit for dancing at Titillations” because they “were more than adequately compensated.”
(Opposition Brief, at 24-25.) Defendants therefore maintain that it “can be reasonably be presumed
that dancers were earning well in excess of the minimum wage.” (Id. at 25.) Defendants have not
presented the Court with sufficient evidence to make this inference. With respect to the claim for
common law fraud, defendants argue that Pero simply expressed an “opinion that dancers are
independent contractors,” and because it is “not a statement of fact, it is his opinion,” no
misrepresentation of fact could have been made. (Id. 25-26.) The Court disagrees with this
assessment. Based on the record, it was Titillations’ policy to classify dancers as independent
contractors. (See Dancer Info and Rules, at D0000009.) Neither of these claims will be dismissed.
re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 308–09 (3d Cir.
1998). Those seeking class certification “bear the burden of establishing by a

preponderance of the evidence that the requirements of Rule 23(a) have been met.” In
re Cmty. Bank of N. Virginia Mortg. Lending Practices Litig., 795 F.3d 380, 391 (3d Cir. 2015).
If the Rule 23(a) criteria are satisfied, the court considers “whether the class meets the
requirements of one of the three categories of class actions under Rule 23(b).” In re

Nat'l Football League Players Concussion Injury Litig., 821 F.3d 410, 426 (3d Cir. 2016), as
amended (May 2, 2016).
Doe seeks class certification under 23(b)(3) and 23(b)(2).6 To seek certification
under 23(b)(3), she must establish that “the questions of law or fact common to class

members predominate over any questions affecting only individual members, and that
a class action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3); Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
568 U.S. 455 (2013). Accordingly, these requirements of Rule 23(b)(3) are known as

predominance and superiority.

6 Alternatively, Doe seeks certification under 23(b)(2), which requires that she establish that “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
Fed. R. Civ. P. 23(b)(2). With respect to this certification pathway, Doe seeks only to certify a class
of “current” Titillations employees. Implicit in Rule 23 is the requirement that the class representative
must be a member of the proposed class. Because Doe left her position at Titillations in early 2017,
she was not a member of proposed class of all “current” dancers at the time she filed this motion. As
such, the Court need not reach a 23(b)(2) analysis.
The Court will first examine the four threshold requirements of Rule 23(a): (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.
i. Numerosity

The Court must find that the putative class is “so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1); Newton v. Merrill Lynch, Pierce, Fenner
& Smith, 259 F.3d 154, 183 (3d Cir. 2001). There is “no minimum number of plaintiffs
required to maintain a suit in a class action, but generally if the named plaintiff
demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule
23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001).

To support her claim that the class is sufficiently numerous, Doe directs the
Court’s attention to Pero’s estimation that there are more than 90 dancers working at
Titillations. (Pero Deposition, at 22:13-18.) Additionally, Doe notes that “just looking
at a sampling of two two-week spans in 2017 and 2019, there are over 120 different

dancers listed on Titillations’ schedule.” (Moving Brief, at 9.) Although no other
plaintiffs have opted in yet, Doe has provided adequate evidence that the potential class,
consisting of exotic dancers who worked at Titillations from May 31, 2014 until the
present, is sufficiently numerous to satisfy this first requirement by a preponderance of

the evidence.
ii. Commonality

Commonality “does not require identical claims or facts among class
member[s].” Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir. 2014), abrog. on other grounds
by Hydrogen Peroxide, 552 F.3d at 318 n.18. However, the named plaintiffs must share at
least “one question of fact or law with the grievances of the prospective class.” Rodriguez
v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (internal quotations omitted)).

“Their claims must depend upon a common contention. . . that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each of the claims in one stroke.” Wal–Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2545, 180 L.Ed.2d 374 (2011). It is not

particularly difficult to meet this requirement: “[W]e have acknowledged commonality
to be present even when not all members of the plaintiff class suffered an actual injury,
when class members did not have identical claims, and, most dramatically, when some
members' claims were arguably not even viable.” In re Cmty. Bank, 795 F.3d at 397

(internal citations omitted).
One legal issue is common to all members of this putative class and constitutes
a unifying thread: the propriety of defendants’ policy of misclassifying exotic dancers as
independent contractors, rather than employees. The Court agrees with Doe that this

“classification will not vary from dancer to dancer.” (Moving Brief, at 20.) Defendants
classify all Titillations dancers as independent contractors, and as such, subject them all
to the same rules, fee structure, policies, and tip-out protocol. (Banc Pero Deposition,
at 38:2-10.) Because the question of whether defendants are misclassifying the dancers
is central to determining liability for each state law claim, it makes sense to allow Doe

and other putative class members to proceed as a class. The commonality requirement
is satisfied here.
iii. Typicality

Rule 23(a)(3) also requires that a class representative’s claim be “typical of the
claims…of the class.” Fed. R. Civ. P. 23(a)(3). This “ensures the interests of the class
and the class representatives are aligned ‘so that the latter will work to benefit the entire
class through the pursuit of their own goals.’” Newton v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 259 F.3d 154, 182–83 (3d Cir. 2001) (quoting Barnes v. Am. Tobacco Co., 161

F.3d 127, 141 (3d Cir.1998)). There is “low threshold” for typicality.” Id. at 183.
“‘Even relatively pronounced factual differences will generally not preclude a finding of
typicality where there is a strong similarity of legal theories’ or where the claim arises
from the same practice or course of conduct.” In re Prudential Ins. Co. Am. Sales Practice

Litig. Agent Actions, 148 F.3d 283, 311 (3d Cir.1998) (quoting Baby Neal v. Casey, 43 F.3d
48, 58 (3d Cir.1994)) (alteration omitted). “This investigation properly focuses on the
similarity of the legal theory and legal claims; the similarity of the individual
circumstances on which those theories and claims are based; and the extent to which

the proposed representative may face significant unique or atypical defenses to her
claims.” In re Schering Plough Corp ERISA Litigation, 589 F.3d 585, 597-98 (3d Cir. 2009).
Doe has alleged that defendants misclassified dancers as independent contractors
pursuant to a blanket policy that applies to every single exotic dancer at Titillations.

Whether the dancers are properly designated as independent contractors is the key issue
of liability in this matter and therefore all class members will assert the same legal claim,
a denial of minimum wage. Defendants have admitted that the same policies and rules
apply to all dancers and thus, all class members will assert this claim based on the same

set of factual circumstances. No unique or atypical defenses are evident based on the
record. As such, the Court finds that typicality is satisfied.
iv. Adequacy of representation

Rule 23(a)(4) requires a class representative to “fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4). The Third Circuit employs a two prong-
inquiry to assess whether this obligation can be fulfilled, which asks: (1) whether the
proposed class counsel is sufficiently qualified to represent the class; and (2) whether
there are “conflicts of interest between named parties and the class they seek to

represent.” In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148 F.3d
283, 312 (3d Cir. 1998); In re Nat'l Football League Players Concussion Injury Litig., 821 F.3d
410, 428 (3d Cir. 2016), as amended (May 2, 2016) (“It tests the qualifications of class
counsel and the class representatives. It also aims to root out conflicts of interest within

the class to ensure that all class members are fairly represented in the negotiations.”)
Defendants do not take issue with Doe’s counsel but instead argue that Doe
cannot adequately represent the purported class of plaintiffs because her interests are
“antagonistic” to the class. Plaintiff’s interest is revenge.” (Opposition Brief, at 22.)
She “does not seek to vindicate the right of other dancers to earn a reasonable wage—

[p]laintiff’s suit is nothing more than a vindictive act to punish Titillations for
terminating [her] employment engagement because she violated the club’s rules.”
(Opposition Brief, at 2.) Defendants further allege that Doe only worked two shifts at
Titillations and “has not pursued similar claims against two different Florida clubs

where she danced that employed the exact business model as Titillations.” (Id. at 1.)
They claim that Doe “filed suit against Titillations for several reasons, none of which
has anything to do with Titillations classification of [her] as an independent contractor.”
(Id. at 7.) Defendants therefore contend that a conflict of interest exists between Doe

and the purported class, whose “interest is undoubtedly to maintain the status quo so
that they can continue to maintain a financially lucrative lifestyle by making ‘good
money.’” (Id. at 2.) In response, Doe argues that defendants “offer no evidence that
[Doe’s] interests are antagonistic to the class” or that the class’ true interest is to

“maintain the status quo.” (Reply Brief, at 11.) She further asserts that the record
evidence demonstrates that she worked for a longer period of time than defendants
claim.7

7 As evidence that she worked at the club during the period she alleges, Doe cites to: (1) phone records
detailing her 54 calls with Titillations between August 2016 and January 2017 (D.E. 57-1, Ex. B (“Doe
Phone Records”)); and (2) her description of photos taken inside the club with time/date stamps from
late 2016 and early 2017. (D.E. 57-2, Ex. C (“Doe Deposition – 2”).)
The record indicates that Doe was fired from Titillations after she did not pay
the house fee, which she stated she could not afford. (Doe Deposition, at 44:7-45:11.).

Aside from her complaints about pay, Doe also testified about other issues she
encountered at Titillations, including workplace rules and safety concerns:
“[I]t’s a whole different ballgame because in the other club that I worked at, they
never had any of these postings, bulletins, rules, regulations like this; just take
care of your house and go home, make your money and go home. . . .and there
is no such thing as security to walk you to your car at Titillations. (Id. at 44:7-
45:11; 71:9-15; 73:5-22; 74:25-75:6.)

While the Court lacks some clarity about the specific tenure of Doe’s
employment and takes note of these other reasons why Doe pursued litigation, her
issues with defendants, including their uniform rule requiring house and DJ payouts,
are relevant to issues facing the entire class. Moreover, the Court is not aware of any
evidence in the record that suggests Doe has acted with malice in pursing this claim.
The Court therefore finds that Doe can adequately represent the interests of the class
members—all of whom are dancers facing identical legal issues.

Satisfied that Doe’s class meets the Rule 23(a) threshold requirements, the Court
will next turn to the question of whether the class is ascertainable. An “essential
prerequisite” of a class action under Rule 23(b)(3) is that the class is “currently and
readily ascertainable based on objective criteria.” Marcus v. BMW of N. Am., LLC, 687
F.3d 583, 592 (3d Cir. 2012). “If class members are impossible to identify without
extensive and individualized fact-finding or ‘mini-trials,’ then a class action is
inappropriate.” Id. at 593. The “ascertainability requirement…is consistent with the
general understanding that the class-action device deviates from the normal course of

litigation in large part to achieve judicial economy.” Byrd v. Aaron’s Inc., 784 F.3d 154,
162 (3d Cir. 2015), as amended (Apr. 28, 2015). The inquiry is two-fold; it requires that
plaintiff show that: “(1) the class is ‘defined with reference to objective criteria;’ and (2)
there is a ‘reliable and administratively feasible mechanism for determining whether

putative class members fall within the class definition.” Id. at 163 (quoting Carrera v.
Bayer Corp., 727 F.3d. 300, 306 (3d Cir. 2013)). The plaintiff only needs to show “these
two inquiries. And it does not mean that a plaintiff must be able to identify all class
members at class certification—instead, a plaintiff need only show that ‘class members

can be identified.’” Id. (emphasis in original) (quoting Carrera, 727 F.3d at 308 n.2)
Defendants argue that it is “virtually impossible to ascertain the identities” of
former dancers given the nature of the exotic dancing industry—turnover is constant,
and dancers use stage names and maintain anonymity for protection. (Opposition Brief,

at 2.) They contend that they will only be able to identify those dancers that currently
work at the club and those that have been terminated. (Id.)
With respect to the first inquiry, Doe contends that the class is in fact defined by

objective criteria “because if an individual danced at Titillations during the limitations
period then she was classified as an [independent contractor] and not paid the minimum
wage.” (Reply Brief, at 7.) The Court agrees with Doe and is satisfied that the first
prong here is met. Doe seeks to certify a class of “all persons who worked at Titillations
as exotic dancers at any time three years prior to the filing of the Complaint until entry
of judgment in this case.” (Moving Brief, at 26.) This class has clear, objective criteria.

Class members must have (1) worked at Titillations (2) as exotic dancers (3) during the
relevant time period.
The Court is also satisfied that Doe meets the second requirement, that a reliable
and administratively feasible mechanism exists to determine whether an individual fits

within the class definition. Doe has provided the Court with a sampling of the
defendants’ online schedules from 2017 and 2019, which indicate which dancer worked
on a given date and shift. (D.E. 52-7, Ex. D (“Dancer Schedules, 2017”); DE 52-8, Ex.
E (“Dancer Schedules, 2019”)). These schedules contain only the dancers’ stage names,

but as Doe argued in her brief, Titillations also maintains records for each dancer that,
in addition to her stage name, also contain the following relevant identifying
information: (1) the dancer’s real name; (2) the dancer’s street address; (3) the dancer’s
cell phone number; (4) the dancer’s date of birth; (5) the dancer’s date of hire; (6) the

dancer’s social security number. (D.E. 57-1, Ex. A (“Sample Dancer Applications”).)
Defendants’ records therefore contain the information necessary to determine whether
a dancer fits within the putative class. Accordingly, Doe has satisfied this necessary

prerequisite to certifying a class.
When seeking certification pursuant to Rule 23(b)(3), a plaintiff must prove that
(i) common questions of law or fact predominate (predominance), and (ii) the class
action is superior method for adjudication (superiority).” Cmty Bank, 622 F.3d at 291.8

The predominance requirements “begins, of course, with the elements of the
underlying cause of action.” Neale v. Volvo Cars of North America, LLC, 794 F.3d 353,
370 (3d Cir. 2015) (internal citations omitted). Doe’s underlying cause of action is that
defendants (1) violated the NJWHL by misclassifying class members as independent
contractors, failing to pay them minimum wage, and forcing them to share tips; (2) were

unjustly enriched by requiring putative class members to share their tips; and (3)
committed fraud by misrepresenting that the potential class members were independent
contractors, rather than employees. (Compl. ⁋⁋ 80-96.)

Whereas Rule 23(a)(2)’s commonality element requires that the proposed class
members share at least “one question of fact or law with the grievances of the
prospective class,” Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (internal
quotations omitted), Rule 23(b)(3)’s predominance element requires that common

8 Where an action is to proceed as under Rule 23(b)(3), “[i]t is often appropriate to discuss
commonality and predominance together because the commonality inquiry is subsumed into the
predominance inquiry.” Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (citing Danvers Motor
Co., Inc. v. Ford Motor Co., 543 F.3d 141, 148 (3d Cir. 2008)). However, “in the interest of clarity, we
will address each requirement separately.” Id.
issues “predominate over any questions affecting only individual members.” Fed. R.
Civ. P. 23(b)(3); Marcus, 687 F.3d at 604. This predominance requirement therefore

“tests whether proposed classes are sufficiently cohesive to warrant adjudication by
representation.” Amchem Prods., 521 U.S. at 623.
To determine whether predominance has been met at the class certification stage,
the Court must assess whether the “essential elements of the claims brought by the

putative class are ‘capable of proof at trial through evidence that is common to the class
rather than individual members.’” Gonzalez v. Corning, 885 F.3d 186, 195 (3d Cir. 2018)
(quoting In re Hydrogen Peroxide, 552 F.3d at 311–12)). Class certification is “unsuitable”
where “proof of the essential elements of the cause of action requires individual

treatment.” Gonzalez v. Corning, 885 F.3d 186, 196 (3d Cir. 2018) (quoting Newton v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172 (3d Cir. 2001)). However,
“the presence of individual questions does not per se rule out a finding of
predominance.” In Re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148

F.3d 283, 315 (3d Cir. 1998). This analysis requires a “rigorous assessment of the
available evidence and the method or methods by which plaintiffs proposed to use the
evidence to prove” these elements. In re Hydrogen Peroxide, 552 F.3d at 312.)

Doe’s briefing and the record she has presented to the Court focus on the issue
of liability. (Moving Brief, at 25) (“Here, one common question predominates over all
others: Are the hundreds of dancers who Titillations classified as ICs really
employees?”) The question of defendants’ liability hinges on whether their policy of
classifying dancers as independent contractors, and those rules related to this practice,
violates the NJWHL. The record clearly demonstrates that defendants applied these

policies and practices to Doe and all potential class members. The Court will not need
to assess this on an individual level; it is undisputed that defendants uniformly classified
dancers as independent contractors and subjected them to the same fee policies and tip
out requirements. The Court is therefore satisfied that the key issue here—whether

Titillations dancers were properly designated as independent contractors rather than
employees—predominates over questions affecting individual members of the class and
can be proven on a class-wide basis. See also Verma v. 3001Castor, Inc., 2016 WL 6962522,
at *8-10 (granting plaintiffs’ second motion for Rule 23(b)(3) class certification as to

minimum wage, overtime, and tip-out claims).
The parties disagree, however, about the effect of individual damage calculations,
and whether they will overwhelm questions common to the class. Defendants argue
that they will, because Doe’s “claim for compensatory damages will require the

determination of the number of hours worked multiplied by the minimum wage, less
the amount of money she received from customers by way of tips, private dancers, and
champagne dances.” (Opposition Brief, at 22-23.) Because “damages will need to be

individually proven because the dancers worked varying hours and for different wages
inasmuch as dancers received varying tips from customers. In addition, the number of
private dances and champagne dances performed by each dancer will have to be
determined.” (Id. at 23-24.) Defendants further contend that this class action cannot
proceed because “the length of each dancer’s engagement cannot be proven,” “the
number of shifts each dancer danced cannot be established,” “the amount of tips each

dancer earned cannot be determine,” and “the amount of fees each dancer earned for
private dances cannot be determined.” (Id. at 2-3.)
Doe rejects defendants’ damages analysis. First, she notes that they failed to
notify the dancers that gratuities were factored into their wages. In fact, this would

have been impossible because the only money dancers received came from tips; they
did not earn any sort of fixed regular payment. Second, because they never considered
dancers to be employees—and have never paid them as such—defendants are not now
entitled to this tip credit. (Reply Brief, at 8-9.) Removing the tip credit from the

equation, plaintiffs argue, simplifies the damages calculation—all that will be required
is to multiply the number of hours worked by minimum wage. (Id.)
To be eligible for the “tip credit” under the FLSA and corresponding New Jersey
state law, defendants are required to notify their employees of the “tip credit” provision

and pay them the corresponding minimum wage that is set for those receiving tip
income. 29 U.S.C. 203(m); N.J.S.A. § 34:11-56a4. Defendants paid their dancers no
compensation of any kind—the only money they made came from customers’ tips. And

since defendants did not consider dancers employees and therefore did not pay them
minimum wage, defendants had no reason to notify them that they were subject to a
“tip credit.” Instead, defendants very clearly informed the dancers that they were
independent contractors who were “not on [their] books” and who had to pay a portion
of their tips to the club and DJs. (See Dancer Info and Rules, at D0000009.) As a result
of defendants’ position that dancers are not employees, the Court finds that defendants

are not permitted to now take advantage of a provision that requires an employer-
employee relationship and credit the dancers’ tips into the damages calculation. See, e.g.,
McFeeley v. Jackson St. Entm’t, 825 F.3d 235, 245–46 (4th Cir. 2016); Hart v. Rick’s Cabaret
Int’l, Inc., 967 F.Supp.2d 901, 934 (S.D.N.Y 2013) (finding that because defendants

failed to notify plaintiffs that “performance fees” (i.e., dancing tips) would not be used
as tip credits and because the defendants “always expressly classified plaintiffs as
independent contractors [ ], and as such did not pay them a regular wage or salary” they
did “not qualify as a ‘tip credit,’ and do not mitigate the Club’s duty to pay dancers a

minimum wage.”) Removing the tip credit from the damages calculation leaves a fairly
simple analysis: hours worked, which can be gathered from defendants’ records,
multiplied by the applicable minimum wage.

The final requirement for 23(b)(3) class certification is that “a class action is
superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). The Rule lists four factors to aid the Court in

this determination: (1) “the class members’ interests in individually controlling the
prosecution or defense of separate actions”; (2) “the extent and nature of any litigation
concerning the controversy already begun by or against class members”; (3) the
desirability or undesirability of concentrating the litigation of the claims in the particular
forum”; and (4) the likely difficulties in managing a class action.” Id.

The Court finds that a class action is the superior means for litigating this lawsuit
for several reasons. First, because class members’ damages are relatively small (Doe
estimates that her damages, exclusive of any liquidated damages would likely range
between $3,754.24 to $6,150.02), their ability and incentive to individually litigate their

claims may be limited. Second, the consolidation of multiple, nearly identical claims
into one action in opposition of defendants’ uniform policies and practices promotes
the economies of time, effort, and expense. Moreover, as Doe argues, “individual
litigation of the claims here could lead to inconsistent results,” which is particularly

undesirable here, where defendants have applied a uniform policy to all putative class
members. (Moving Brief, at 28.) Thus, Doe has shown by a preponderance of the
evidence that a class action is the superior method of resolving the state law claims in
this matter.

For the preceding reasons, Doe has satisfied the requirements of Rule 23 and the
Court grants her motion for a Rule 23 class certification of her state law claims. This
decision is in line with courts throughout the country, including in this district, which

have certified similar classes involving wage claims against gentlemen’s clubs. See, e.g.,
DeGidio v. Crazy Horse Saloon & Rest., Inc., 2017 WL 5624310, at *15 (D.S.C. Jan. 26,
2017), aff'd and remanded sub nom. Degidio v. Crazy Horse Saloon & Rest. Inc, 880 F.3d 135
(4th Cir. 2018) Bonton v. Centerfold Entertainment Club, Inc., 2015 WL 2380300, *4 (W.D.
Ark. May 19, 2015) (certifying class of exotic dancers alleging violations of Arkansas
Minimum Wage Act); Ruffin v. Entm't of the E. Panhandle, No. 11-19, 2012 WL 5472165

(N.D. W. Va. Nov. 9, 2012) ; Flynn v. N.Y. Dolls Gentlemen’s Club, 2015 WL 3916161, *1
(S.D.N.Y. Apr. 28, 2015)); Verma v. 3001Castor, Inc., 2016 WL 6962522, at *8-10
(granting plaintiffs’ second motion for Rule 23(b)(3) class certification as to minimum
wage, overtime, and tip-out claims).

IV. Conclusion

For the forgoing reasons, the Court will certify the collective action under the
FLSA and a class under Rule 23(b)(3) against defendants, and grant Doe’s notice
requests. An appropriate order will follow.

/s/ Katharine S. Hayden
Date: June 1, 2020 Katharine S. Hayden, U.S.D.J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268195. Public record. Not legal advice.