Roberts v. Genting New York LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

GERALD ROBERTS, STEPHEN JOHNSON,

CHRISTOPHER MCLEOD, DAVID SHAW,

ANITA JOHNSON, CHRISTOPHER

HUMPHRIES, JEFFREY WILKINS, LATANYA

MARTIN-RICE, LAURA SANCHEZ, LUCY

MUNOZ, NATALIO HERRERA, RADIKA

KANHAI, ROGER SIERRA, YOO SUNG KIM, MEMORANDUM & ORDER

CHRISTINA LAMBRU, IRENE TSOROROS,

MARIA DIAZ, CYNTHIA DURAN, JASPER 14-CV-257 (KAM)(VMS)

JONES, ALLEN CHERFILS, LISA

LUNDSREN, TERESA AREVALO, SYED A.

HAQUE, AHMED TALHA, OLIE AHMED,

JAMAL AHMED, SORWAR HUSSAIN, LUZ

OSPINA, JOHNNY MURILLO, THOMAS

DORGAN, SENECA SCOTT, ERIC LEE,

WILLIAM BOONE, MARLENNI MINAYA,

ISABEL PENA, CELESTE BROWN-POLITE,

DWIGHT CURRY, RAWLO BENFIELD, JOSEPH

BROWN, SANDRA MILENA- MARTINEZ,

MARINO CANO, ABIGAIL APPIAH-

OTCHERE, DALIA TOPPIN, ANA MOREIRA,

BETSABE TORRES, LORNA BENT, OSMOND

WALKER, CONRAD HALL, VISHWANI

SUKHRAM, ANNE GRONATA, BRUCE SMITH,

NESTOR AMAYA, GUIDO ANTONIO

RODRIGUEZ, WILLIE BALLENTINE, PETER

VONTAS, FELIX GONZALEZ, MICHELLE

LATIMER, VARISE WALLER, SOOKIA

FREEMAN, CAMARCA FLOWERS, ANTONIO

SALCEDO, JOEVEN CORTEZ, AND JUDITH

ALLEN, on behalf of themselves and

others similarly situated,

Plaintiffs,

- against –

GENTING NEW YORK LLC, D/B/A RESORTS

WORLD CASINO NEW YORK CITY,

Defendant.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

On January 14, 2014, Plaintiffs Gerald Roberts, Stephen

Johnson, Christopher McLeod, and David Shaw, on behalf of

themselves and all others similarly situated, commenced this

action against Defendant Genting New York LLC, d/b/a Resorts World

Casino New York City (“Defendant” or “Resorts World”), alleging

violations of the Worker Adjustment and Retraining Notification

Act (“Federal WARN Act”), 29 U.S.C. §§ 2101, et seq., and New York

Labor Law (“NYLL”) §§ 860, et seq. (“N.Y. WARN Act”). (ECF No. 1,

Compl., at ¶ 1.) On March 17, 2014, Plaintiffs filed an Amended

Complaint, adding 59 new plaintiffs (together, the “Plaintiffs”).

(ECF No. 5, First Amended Complaint (“FAC”).)

Following discovery, the parties filed cross-motions for

summary judgment, which were fully briefed on February 16, 2016.

(ECF Nos. 53, 61.) The case was subsequently reassigned from Judge

Sandra L. Townes to Judge I. Leo Glasser, and Judge Glasser entered

a Memorandum and Order on March 12, 2021, denying Plaintiffs’

motion for summary judgment and granting Defendant’s motion for

summary judgment. Roberts v. Genting New York LLC, No. 14-CV-257

(ILG)(VMS), 2021 WL 950055, at *1 (E.D.N.Y. Mar. 12, 2021).

Plaintiffs appealed the denial of their motion for summary judgment

and the grant of summary judgment to Defendant. (ECF No. 78,

Notice of Appeal.)

On May 15, 2023, the Second Circuit Court of Appeals affirmed

the denial of Plaintiffs’ motion for summary judgment, vacated the

grant of summary judgment to Defendant, and remanded the case for

further proceedings. Roberts v. Genting New York LLC, 68 F.4th

81, 96 (2d Cir. 2023). Judge Glasser subsequently held a status

conference with the parties on June 8, 2023, (ECF No. 81), before

the case was reassigned to the undersigned on June 13, 2023.

Following reassignment, the Court directed the parties to

meet and confer and advise the Court as to how they wish to proceed.

(Docket Order dated June 14, 2023.) The parties submitted a joint

letter on June 16, 2023, setting forth their respective positions.

(ECF No. 82, Joint Letter.) Plaintiffs argued that no further

briefing was necessary regarding arguments made by Defendant in

its motion for summary judgment that were not reached by Judge

Glasser’s order. (Id.) Plaintiffs also argued that the

Defendant’s motion to strike the jury demand, which the Second

Circuit left “to the district court to resolve in the first

instance on remand, after giving the parties an opportunity to be

heard,” Roberts, 68 F.4th at 92 n.11, should be considered

concurrently with a future motion for class certification. (ECF

No. 82, at 1-2.) Defendant requested that the Court consider its

“fully briefed” remaining arguments in support of summary

judgment--which were not reached by Judge Glasser--prior to

proceeding to class certification to “either obviate the need for

such motions or limit the scope of any class certification motion.”

(Id. at 2.)

Both parties agree that the remaining arguments in the

Defendant’s motion for summary judgment are fully briefed.

Although Plaintiffs argue that no decision is necessary prior to

the filing of a motion for class certification, the Court agrees

with Defendant that it is prudent to resolve the remaining

arguments in the Defendant’s summary judgment motion which were

not considered by Judge Glasser prior to moving forward with class

certification. For the reasons that follow, the Court respectfully

denies the remaining portions of Defendant’s motion for summary

judgment not reached by Judge Glasser, directs the parties to

confer and discuss the scheduling of a settlement conference, and

directs the parties to file pre-motion conference letters in

anticipation of their cross motions regarding class certification

and Plaintiffs’ jury demand.

BACKGROUND

The Court assumes the parties' familiarity with the

underlying facts as discussed in Judge Glasser’s prior Memorandum

and Order in this case, see Roberts, 2021 WL 950055, at *1-3, along

with the Second Circuit’s Opinion, Roberts, 68 F.4th at 84-87, and

will discuss only those facts relevant to the Defendant’s remaining

summary judgment arguments currently before this Court.

I. Factual Background

Defendant Resorts World operates a casino in Queens, New York

that offers thousands of games and a variety of food and beverage

options. (ECF No. 65, Defendant’s Rule 56.1 Statement of

Undisputed Material Facts (“Def’t 56.1”), at ¶¶ 1, 3.) In or

around July 2010, prior to the opening of the casino in 2011, the

New York Hotel and Motel Trades Council, AFL-CIO (the “Union”)

began to organize Resorts World's future non-management employees.

(Id. at ¶ 7.) Following an October 2013 resolution by an

arbitrator of certain unsettled terms in the Union’s Collective

Bargaining Agreement (“CBA”), employee wages for Union members

were “nearly doubled,” and Resorts World attempted to mitigate the

financial impact of the increased wages by reducing the workforce.

(Id. at ¶¶ 9-12.) Relevant to the instant case, on January 6,

2014, Resorts World closed the Aqueduct Buffet—one of the food

outlets at the casino—and terminated approximately 177 employees,

including cooks, food servers, food runners, bussers, hosts,

cashiers, warehouse attendants, and stewards. (Id. at ¶¶ 15, 18.)

Resorts World contends that the layoffs were the product of

“intense” negotiations between November 2013 and the first week of

January 2014 with the Union which “took place virtually daily,”

and that the negotiations resulted in the layoffs being decreased

from “over 300 to approximately 177.” (Id. at ¶¶ 14-15.) Resorts

World contends that these negotiations continued through the first

week of January 2014 and that “the Union approved of the closing

of the Aqueduct Buffet” along with the “list of employees to be

laid off” and the “timing of the layoffs.” (Id. at ¶ 16.)

Plaintiffs dispute this characterization of the negotiations and

argue that the emails cited by Defendant in support of its Rule

56.1 Statement “indicate that the layoffs were more of a decree by

Defendant which the Union had no choice but to agree with in

significant portion.” (ECF No. 68, Plaintiffs’ Response to

Defendant’s Rule 56.1 Statement (“Pl. Resp. 56.1”), at ¶ 15.)

Plaintiffs also dispute that the Union “approved” of any action,

and instead argue that the Union was “attempting to minimize the

damage from Defendant’s decision to terminate employees.” (Id. at

¶ 16.)

Resorts World further contends that approximately twenty

employees received “Enhanced Severance” in exchange for a release

of any claims against Resorts World, in addition to the “Regular

Severance” required pursuant to the CBA. (Def’t 56.1 at ¶ 20.)

Plaintiffs dispute that the exchange included a general waiver,

and “challenge whether the waiver had sufficient consideration and

was otherwise fair.” (Pl. Resp. 56.1 at ¶ 20.) In support of its

contentions Defendant offers as evidence an example of the

voluntary agreement and general release signed by a non-party to

this action, (ECF No. 63-11, at 9-11), but does not identify in

its Rule 56.1 statement which, if any, of the Plaintiffs received

Enhanced Severance, (Def’t 56.1 at ¶ 20).

LEGAL STANDARD

Summary judgment shall be granted to a movant who demonstrates

“that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A fact is ‘material’ for these purposes when it ‘might

affect the outcome of the suit under the governing law.’” Rojas

v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.

2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). No genuine issue of material fact exists “unless there

is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.” Anderson, 477 U.S. at 249. “If

the [non-moving party’s] evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at

249-50 (citations omitted).

When bringing a motion for summary judgment, the movant

carries the burden of demonstrating the absence of any disputed

issues of material fact and entitlement to judgment as a matter of

law. Rojas, 660 F.3d at 104. In deciding a summary judgment

motion, the court “must resolve all ambiguities and draw all

reasonable inferences against the moving party.” Flanigan v. Gen.

Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A moving party may indicate the absence of a factual dispute by

“showing . . . that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). Once

the moving party has met its burden, the nonmoving party “must

come forward with admissible evidence sufficient to raise a genuine

issue of fact for trial in order to avoid summary judgment.”

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Finally, the “mere existence of a scintilla of evidence in support

of the [non-moving party’s] position will be insufficient; there

must be evidence on which the jury could reasonably find for the

[non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986).

DISCUSSION

Judge Glasser originally denied Plaintiffs’ motion for

summary judgment, and granted summary judgment to the Defendant in

this case based on a finding that Aqueduct Buffet was not an

“operating unit” under the Federal WARN Act and the N.Y. WARN Act.

Roberts, 2021 WL 950055, at *4. Based on this finding, Judge

Glasser concluded as a matter of law that Defendant was not subject

to the advance notice provisions of the Federal and N.Y. Acts.

Id. Judge Glasser did not reach Defendant’s alternate arguments

regarding estoppel or waiver. Id. n.3. In the Second Circuit’s

opinion affirming the denial of Plaintiffs’ motion for summary

judgment, vacating the grant of summary judgment to Defendant, and

remanding this case for further consideration, the Second Circuit

held that “a reasonable fact-finder could determine that the

[Aqueduct] Buffet was an operating unit,” thus precluding summary

judgment in favor of either party on the “operating unit” issue.

Roberts, 68 F.4th at 92-93.

Upon remand, the Court now considers Defendant’s remaining

arguments that were not previously considered by Judge Glasser.

Defendant argues (1) that Plaintiffs’ claims are barred by the

doctrines of waiver and/or estoppel based on the Union’s

participation in the layoff process; and (2) the Plaintiffs who

received Enhanced Severance waived and/or released any claims

against Resorts World. (See generally ECF No. 64, Defendant’s

Memorandum of Law (“Def’t Mem.”).) The Court will briefly set

forth the legal standard for claims under the Federal and N.Y.

WARN Acts before examining each of Defendant’s two remaining

arguments in turn, along with Defendant’s pending request to strike

Plaintiffs’ punitive damages demand.

I. Applicable Law

A. Federal WARN Act

The WARN Act “requires employers to give employees 60 calendar

days’ notice in advance of plant closings and mass layoffs.”

Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013)

(citing 29 U.S.C. § 2102(a)(1)). The requirement generally applies

to employers who employ 100 or more full-time employees. Coppola

v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007) (citing 29

U.S.C. § 2101(a)(1)). A “plant closing” is defined as “the

permanent or temporary shutdown of a single site of employment, or

one or more facilities or operating units within a single site of

employment.” 29 U.S.C. § 2101(a)(2). Accordingly, an employer

who shuts down a “single site of employment” or an “operating

unit,” must give notice to all employees who would reasonably be

expected to lose their jobs as a result, whether they work inside

or outside the site or operating unit. See id. §§ 2102(a)(1),

2101(a)(5).

“Unless an exception applies, a covered employer violates the

WARN Act when it orders a plant closing or mass layoff without

providing each employee, either individually or through her or his

representatives, with sixty-days advance notice.” Roberts, 68

F.4th at 89 (internal quotation marks and citation omitted). The

employer is liable to each affected employee for that employee's

compensation for each day the required notice was not provided,

“up to 60 days of pay and benefits.” Guippone, 737 F.3d at 225

(citing 29 U.S.C. § 2104(a)(1)). A civil action for damages under

the WARN Act is “the exclusive remedy for any violation of this

chapter.” Loc. 217, Hotel & Rest. Emps. Union v. MHM, Inc., 976

F.2d 805, 808 (2d Cir. 1992) (brackets omitted) (quoting 29 U.S.C.

§ 2104(b)).

B. New York WARN Act

“Like the federal statute, the New York WARN Act requires

that qualified employers give employees advance notice of a plant

closing or mass layoff.” Roberts, 68 F.4th at 92 (citing NYLL §

860-b); see also id. § 860-b(2) (“An employer required to give

notice . . . under this article shall include in its notice the

elements required by the federal Worker Adjustment and Retraining

Notification Act (29 U.S.C. 2101 et seq.).”). “Under the N.Y.

WARN Act, notice must be given ninety, rather than sixty, days in

advance.” Id. (citing NYLL § 860-b). “The N.Y. WARN Act applies

to employers who ‘employ [50] or more’ full-time employees, rather

than 100.” Id. (quoting NYLL § 860-a(3)). Moreover, the New York

statute provides lower thresholds for a “plant closing” or a “mass

layoff” to trigger the requirement of advance notice. Compare

NYLL §§ 860-a(4), (6) with 29 U.S.C. §§ 2101(a)(2), (3).

“Accordingly, where there is liability under the WARN Act, there

is necessarily liability under the New York WARN Act.” Roberts,

68 F.4th at 92

II. Plaintiffs’ Claims Are Not Barred by the Doctrine of Waiver

or Estoppel

Defendant argues that Plaintiffs’ WARN Act claims “are barred

by the Union’s knowledge of, active participation in, and approval

of the closure of the Aqueduct Buffet,” citing a number of emails

between the Union and Resorts World executives as evidence. (Def’t

Mem. at 20-21.) Defendant also argues that “the Union had notice

and actual knowledge of” the layoffs prior to January 6, 2014,

fulfilling Resorts World’s WARN Act obligation. (Id. at 21.) In

opposition, Plaintiffs argue in response that “the information

necessary to be provided under the WARN Act was not provided prior

to the actual layoff” and dispute that the Union “approved” the

layoffs. (ECF No. 67, Plaintiffs’ Memorandum of Law in Opposition

(“Pl. Mem.”), at 11.) Plaintiffs further argue that there is no

evidence that there was any intentional waiver of the rights of

any members of the Union under either the Federal or N.Y. WARN

Act. (Id. at 11-12.) Construing the facts in the light most

favorable to the non-moving party, the Court finds no basis for

concluding that Plaintiffs’ claims are barred by the doctrine of

waiver or estoppel.

Waiver is defined as “the intentional relinquishment of a

known right.” United States v. RePass, 688 F.2d 154, 158 (2d Cir.

1982); see also Jordan v. Can You Imagine, Inc., 485 F. Supp. 2d

493, 499 (S.D.N.Y. 2007) (“Waiver requires the voluntary and

intentional abandonment of a known right which, but for the waiver,

would have been enforceable. Waiver may be established by

affirmative conduct or by a failure to act that evinces the intent

to abandon the right.” (citations omitted)). Equitable estoppel

applies when a party, by its conduct, including language, acts or

silence, knowingly makes a representation or conceals material

facts which it intends or expects will be acted upon by the other

party. United States v. Wynshaw, 697 F.2d 85, 87 (2d Cir. 1983);

see also ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C.

Cir. 1988) (Equitable estoppel “is a means of precluding a litigant

from asserting an otherwise available claim or defense against a

party who has detrimentally relied on that litigant's conduct.”).

First, the Court can easily dispense with any argument that

notice of layoffs to the Union fulfilled Resorts World’s

obligations under the Federal and N.Y. WARN Act. Defendant

concedes in its own memorandum of law that the list of employees

to be laid off was still being negotiated in the week preceding

the layoffs. (Def’t Mem. at 21.) Because the scope of the layoffs

had not been finalized until days before the layoffs took place,

it was impossible for any “notice” given to the Union to satisfy

the 60-day or 90-day requirement of the Federal and N.Y. WARN Act.1

Thus, the instant case is easily distinguishable from Presser v.

Key Food Stores Co-op., Inc., No. 01-CV-8059, 2006 WL 2086346, at

*2 (E.D.N.Y. July 25, 2006), aff'd, 316 F. App'x 9 (2d Cir. 2009),

in which WARN Act notices were explicitly sent by the employer to

collective bargaining representatives for unionized employees.

1 There is also no evidence in the record to suggest that Defendant, in an

abundance of caution, notified all employees who might be affected by the

layoffs prior to November 7, 2013. Defendant includes as evidence an email

with an attached “action plan” dated November 20, 2013, but that is the earliest

correspondence proffered. (ECF No. 63-7, at 2.)

Second, the Court’s review of the email exchanges between

Union leadership and Resorts World executives reveals nothing that

could be construed as a waiver, express or implied, of the Union

members’ rights under either WARN Act. Resorts World executives

worked with Union leadership to (1) draft a “Frequently Asked

Questions” guide for terminated employees, (ECF 63-7 at 80-86);

(2) negotiate final severance pay, (ECF 63-7, at 87); and (3)

reduce and manage the number of employees impacted (ECF 63-7, at

2-9, 25-31). It is clear from the evidence proffered by Defendant

that the Union was aware of the impending layoffs and worked

constructively with the Resorts World executives to mitigate the

impact on Union members. Glaringly absent from the correspondence,

however, is any mention of the WARN Act, or any waiver by the Union

of employees’ notification rights under Federal and New York law.

Defendant offers no authority to suggest that a Union’s

participation in discussions regarding future layoffs waives any

individual member’s ability to bring a Federal or N.Y. WARN Act

claim. To the extent the Resorts World executives were attempting

to “avoid any disputes concerning the layoffs” by collaborating

with the Union, (Def’t Mem. at 21), they failed to make that intent

clear in their communications. The Court will not infer that the

Union shared in the Defendant’s intent to avoid disputes based on

the evidence presented by Defendant, and thus does not find any

waiver to be present.

Third, the Court denies Defendant’s estoppel defense for the

same reasons as set forth above. The evidence proffered by

Defendant does not show any “lack of knowledge of the true facts”

by the Defendant, or Defendant’s “reliance upon the conduct” of

the Union that led to a “prejudicial change in position” on Resorts

World’s part. Coggins v. County of Nassau, 615 F. Supp. 2d 11, 22

(E.D.N.Y. 2009). The Court’s review of the correspondence reveals

no representation that the Union was waiving WARN Act claims on

behalf of its members, let alone a “false representation or

concealment of material facts.” Id. To the extent Defendant

believes that the Union should have warned the Resorts World

executives that their layoff plan might violate federal and state

notice requirements, the Court finds no authority supporting a

finding of any such obligation on behalf of the Union.

Accordingly, Defendant’s motion for summary judgment based on

the doctrine of waiver or estoppel is denied.

III. Defendant Fails to Offer Sufficient Evidence of Enhanced

Severance Waiver by Named Plaintiffs

Defendant argues that six of the named Plaintiffs in the

instant case received Enhanced Severance2 in exchange for releasing

Resorts World from “any and all charges, claims and actions arising

out of [their] employment or the separation of [their] employment

2 Enhanced Severance amounted to “5 days’ pay for individuals employed with

Resorts World for two years or less and 10 days’ pay for individuals employed

with Resorts World for two years or more.” (Def’t Mem. at 22 n.16.)

with [Resorts World].” (Def’t Mem. at 22-23.) Plaintiffs argue

that Defendant is not entitled to summary judgment because they

failed to produce any of the waivers for the Plaintiffs in this

action, and instead rely on a sample executed with a non-party.

(Pl. Mem. at 12.) Plaintiffs further argue that even if the

individual plaintiffs’ waivers had been produced, Defendant would

not be entitled to judgment as a matter of law, because it has not

shown that the waivers would be effective or bind the Plaintiffs.

(Id. at 12-13.) Plaintiffs close their argument by contending

that even if a waiver in the release were binding, the waiver

should be unenforceable on ground of public policy. (Id. at 13-

14.)

The Court analyzes waiver under New York state law, given any

waiver was unquestionably made in New York, and the Plaintiffs are

citizens of New York. NYTDA, Inc. v. City of New York, No. 11-

CV-1836 (NGG)(RER), 2014 WL 4274219, at *6 (E.D.N.Y. Aug. 28,

2014). “Waiver is an intentional relinquishment of a known right

and should not be lightly presumed.” Gilbert Frank Corp. v. Fed.

Ins. Co., 520 N.E.2d 512, 514 (N.Y. 1988). If a party clearly

waives its right to pursue a cause of action, that waiver will be

binding in future actions absent exceptional circumstances. See

Middle East Banking v. State Street Bank Int'l, 821 F.2d 897, 906

(2d Cir. 1987) (upholding validity of release despite claim of

unilateral mistake). However, the New York courts have noted that

“the meaning and coverage of a release depends on the controversy

being settled . . . [and] a ‘release may not be read to cover

matters which the parties did not desire or intend to dispose of.’”

Gettner v. Getty Oil Co., 641 N.Y.S.2d 73, 74 (2d Dep’t 1996)

(citations omitted). “[T]he intent to waive a right must be

unmistakably manifested, and is not to be inferred from a doubtful

or equivocal act.” Navillus Tile, Inc. v. Turner Const. Co., 770

N.Y.S.2d 3, 5 (1st Dep’t 2003) (internal quotation marks and

citation omitted). “The burden of proving waiver rests with the

party asserting it.” Homapour v. Harounian, 160 N.Y.S.3d 223, 225

(1st Dep’t 2021) (citation omitted).

The Court finds that granting summary judgment to Defendant

against six of the named Plaintiffs who purportedly entered into

an Enhanced Severance agreement would be inappropriate based on

the current record. Plaintiffs do not deny that a subset of six

named Plaintiffs entered into a release of some kind in exchange

for severance payments above and beyond those required under the

CBA. (Pl. Resp 56.1 at ¶ 20.) Notwithstanding that admission,

Defendant has offered no evidence showing the specific language

included in the releases entered into with the named Plaintiffs.

Defendant offers only a single example of a release with a non-

party, (ECF No. 63-11 at 9-11), and seemingly asks the Court to

infer that the named Plaintiffs entered into identical releases

with only the names and payment amounts being changed. Defendant

offers no explanation for its failure to proffer the actual signed

releases with the named Plaintiffs in the instant action. In the

absence of the actual waivers at issue, the Court will not infer

the scope of the release included.

Regarding the Defendant’s argument in the alternative that

its liability should be reduced because the payment of Enhanced

Severance constitutes a “voluntary and unconditional payment”

under 29 U.S.C. § 2104(a)(2), the Court is similarly not persuaded.

Given Defendant explicitly argues that the payment was made in

exchange for a general release, the Court cannot find that the

payment was “unconditional,” as required by the Federal WARN Act.

See, e.g., Loc. Joint Exec. Bd. of Culinary/Bartender Tr. Fund v.

Las Vegas Sands, Inc., 244 F.3d 1152, 1160 (9th Cir. 2001) (finding

severance payment made conditional on remaining on the job until

the hotel casino closed was not entitled to any deduction from

WARN Act liability).

IV. Availability of Punitive Damages

Defendant also seeks to strike Plaintiffs’ request for

punitive damages, arguing that punitive damages are not available

under the Federal WARN Act or the N.Y. WARN Act. (Def’t Mem. at

24.) Plaintiffs concede that punitive damages are not available

under the Federal WARN Act but argues that “no court has held that

punitive damages are not available under the NY WARN Act.” (Pl.

Mem. at 14.) Punitive damages are available under New York law

“to punish a person for outrageous conduct which is malicious,

wanton, reckless, or in willful disregard for another's rights.”

DiBella v. Hopkins, 403 F.3d 102, 122 (2d Cir. 2005) (internal

quotation marks and citation omitted); see also Lovebright Diamond

Co. v. Spragins, 574 F. Supp. 76, 80 (S.D.N.Y. 1983) (“In order to

state a claim for which punitive damages may be awarded, wanton

behavior or conduct evidencing a criminal disregard for civil

liability on the defendant's part must be pleaded.”). Defendant

argues for the first time in its reply that the legislative history

of the N.Y. WARN Act supports a conclusion that punitive damages

are not available. (ECF No. 71, Defendant’s Reply Memorandum of

Law at 9-10.)

The Court concurs with the parties that punitive damages are

not available under the Federal WARN Act, Finnan v. L.F. Rothschild

& Co., 726 F. Supp. 460, 464-65 (S.D.N.Y. 1989), but denies

Defendant’s request to strike Plaintiffs’ demand for punitive

damages under the N.Y. WARN Act without prejudice to the request

being renewed prior to trial, given Defendant’s arguments

regarding the unavailability of punitive damages under New York

law were made for the first time in its reply, Knipe v. Skinner,

999 F.2d 708, 711 (2d Cir. 1993) (“[a]rguments may not be made for

the first time in a reply brief”).

CONCLUSION

For the reasons stated above, Defendant’s remaining arguments

in its Motion for Summary Judgment that were not ruled on by Judge

Glasser are respectfully denied.

The parties shall confer and submit a request for a settlement

conference before Magistrate Judge Scanlon. The parties’ joint

request to Magistrate Judge Scanlon shall be submitted no later

than July 31, 2024, Plaintiffs shall file their request for a

pre-motion conference in anticipation of a motion for class

certification no later than July 31, 2024, and Defendant shall

file a request for a pre-motion conference for its anticipated

motion to strike Plaintiffs’ jury demand by the same date. Any

opposition by either party is due no later than August 7, 2024.

SO ORDERED. b -

f? a,

Dated: July 17, 2024 “Vy son

Brooklyn, New York

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

20