# Roberts v. Genting New York LLC

> District Court, E.D. New York · July 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10659043

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659043. Public record. Not legal advice.