# Erickson v. Fellini Soho Corp

> District Court, S.D. New York · August 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11123018

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 18, 2025
- **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/11123018

## How later opinions describe it (automated extraction)

- noting commonality and typicality requirements “tend to merge into one another”
- finding commonality where “Plaintiffs’ NYLL class claims all derive from the same compensation policies and tipping practices”
- holding that a class of “all of the tip eligible employees who worked [for the defendant] through the class period” is ascertainable

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

VANCE ERICKSON, et al., on behalf of
themselves and all others similarly
situated, 25-CV-1344 (JPO)
Plaintiffs,
OPINION AND ORDER
-v-

FELLINI SOHO CORP, et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Vance Erickson and opt-in Plaintiffs Peyton Allen and Hannah Everett1
0F
(together, “Plaintiffs”) bring this action pursuant to the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201, et seq., and New York Labor Law (“NYLL”), §§ 190, 650, et seq. (ECF No. 1
(“Compl.”); ECF No. 7; ECF No. 13.) Defendants Fellini Soho Corp., Fellini Chelsea Corp., and
Pyramid Apex Corp. (collectively, “Fellini”) are corporations operating coffeeshops in
Manhattan, New York. (See Compl. ¶¶ 8-14.) Defendant Franco Noriega is the owner of each
Fellini establishment. (Id. ¶ 15.) Before the Court now is Plaintiffs’ unopposed motion to certify
a class pursuant to Federal Rule 23. For the reasons that follow, the motion for class certification
is granted as to Plaintiffs’ claim under NYLL § 196-d but denied as to Plaintiffs’ other claims.
I. Background
Erickson worked as a barista and server at two Fellini establishments, located in Soho
and the West Village, from September 2024 to January 2025. (ECF No. 40 (“Erickson Decl.”)
¶ 3.) Everett also worked as a barista and server at the same two locations from August 2024 to

1 The caption on ECF, which lists Hannah Everett’s name as Everett Heather, is
apparently incorrect. The Clerk of Court is directed to amend the case caption.
January 2025, and Allen did the same at the Soho and Chelsea locations from August 2024 to
April 2025. (ECF No. 42 (“Everett Decl.”) ¶ 3; ECF No. 41 (“Allen Decl.”) ¶ 3.) Plaintiffs’
duties “consisted of physical tasks such as setting tables, serving customers, clearing tables, and
cleaning and preparing food.” (Erickson Decl. ¶ 23; Everett Decl. ¶ 23; Allen Decl. ¶ 23.)
Plaintiffs allege that Defendants improperly withheld portions of all tipped employees’

tipped wages, paid them on a biweekly basis rather than a weekly basis, and did not provide
them with wage notices and statements as required by New York state law. (Compl. ¶¶ 54-70.)
In particular, they allege that Defendants took five percent of tips “as an undefined
‘commission,’” paid their accountant $50 weekly out of tips from each location, and required
tipped employees to share tips with management-level employees. (Id. ¶¶ 36-38, 40.) Plaintiffs
allege that Defendants’ employees are subject to the same payroll practices and that all Fellini
locations share the same owner and management employees. (See, e.g., Everett Decl. ¶¶ 5, 9.)
Plaintiffs served Defendants with the summons and complaint on February 19 and
February 21, 2025. (See ECF Nos. 9-12.) However, no appearance was entered on Defendants’

behalf, and no response to the complaint was filed in the allotted time. Consequently, a Clerk’s
Certificate of Default as to each Defendant was entered on April 9, 2025. (ECF Nos. 28-31.)
This Court then granted Plaintiffs’ letter motion for leave to file a motion for class certification
prior to moving for default judgment. (ECF No. 37.)
Plaintiffs subsequently moved for class certification pursuant to Rule 23 of the Federal
Rules of Civil Procedure. (ECF No. 38.) Alongside a memorandum of law (ECF No. 39),
Plaintiffs also filed supporting declarations and exhibits, which included a screenshot of a text
message from Defendants’ accountant, Danny Zambrano, to a group chat with Defendants’
tipped employees, in which Zambrano stated that Defendants retained five percent of tips as a
“commission” and retained $50 per week per location to pay Zambrano’s “commission for
carrying out [t]he weekly tip form” (see, e.g., Erickson Decl. ¶ 15; ECF No. 40-1 at 2). In
another text, Zambrano confirmed that Defendants “have been handling the tip system like this
since the beg[in]ing of Fellini and [they] do it like this throughout all the stores.” (ECF No. 40-1
at 4.)

II. Legal Standard
A proposed class must satisfy the prerequisites set out in Federal Rule of Civil Procedure
23(a): (1) “the class is so numerous that joinder of all members is impracticable”; (2) “there are
questions of law or fact common to the class”; (3) “the claims or defenses of the representative
parties are typical” of those of the class; and (4) “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Although it is “not explicitly
spelled out in Rule 23,” there is also an “implied requirement of ascertainability.” Schear v.
Food Scope Am., Inc., 297 F.R.D. 114, 125 (S.D.N.Y. 2014) (quotation marks omitted). If,
“after a rigorous analysis,” a court concludes that these prerequisites are met, it must determine if
certification is appropriate under Rule 23(b). Roach v. T.L. Cannon Corp., 778 F.3d 401, 405

(2d Cir. 2015) (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). Here, Plaintiffs
seek certification under Rule 23(b)(3), which requires that “questions of law or fact common to
class members predominate over any questions affecting only individual members,” and “a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). “The party seeking class certification bears the burden of
establishing by a preponderance of the evidence that each of Rule 23’s requirements [has] been
met.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015).
Plaintiffs may move for class certification even after entry of a clerk’s certificate of
default. See Acticon AG v. China N.E. Petroleum Holdings Ltd., 687 F. App’x 10, 12 (2d Cir.
2017) (summary order). “A motion for class certification should ‘be denied as untimely only
when the late timing of the determination may cause prejudice or unduly complicate the case.’”
Id. (alterations adopted) (quoting 7AA Wright & Miller, Fed. Prac. & P. § 1785.3 (3d ed.)). A
motion is not untimely where “the caption and prayer for relief in [plaintiffs’] prior complaints
indicated its intent to seek class status.” Id.; see also Pichardo v. Bos. Post Food Corp., No. 22-

CV-9157, 2025 WL 1122531, at *2 (S.D.N.Y. Apr. 16, 2025).
III. Discussion
Plaintiffs seek to certify a class of “all tipped food-service employees (other than
managers) who worked for Defendants at the Fellini Coffee food establishments in Soho,
Chelsea[,] and the West Village at any time on or after February 14, 2019.” (ECF No. 39 at 9.)
Plaintiffs’ motion is timely, notwithstanding the entry of a clerk’s certificate of default: They
move for certification before the entry of default judgment and the complaint clearly indicated an
intent to pursue a class action. See Pichardo, 2025 WL 1122531, at *2. For the reasons
explained below, Plaintiffs’ motion for class certification is granted as to their claim under
NYLL § 196-d and denied as to their remaining claims.

A. NYLL § 196-d
New York law provides that “[n]o employer or his agent or an officer or agent of any
corporation, or any other person shall demand or accept, directly or indirectly, any part of the
gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to
be a gratuity for an employee.” N.Y. Lab. Law § 196-d.
As to their claim under NYLL § 196-d, Plaintiffs have met the numerosity, commonality,
typicality, and adequacy of representation requirements of Rule 23(a). Plaintiffs allege that there
are more than 50 members in the proposed class (Compl. ¶ 23), which exceeds the 40 members
presumed to satisfy the numerosity requirement. See Consol. Rail Corp. v. Town of Hyde Park,
47 F.3d 473, 483 (2d Cir. 1995). In support, Plaintiffs offer an exhibit purporting to show
Defendants’ tip calculation record from a four-month period, which demonstrates that over 30
employees received tips in that time. (See ECF No. 40-2.) Given that the proposed class will
encompass tipped employees who worked for Defendants over the course of six years, Plaintiffs’
allegations and supporting evidence satisfy their burden on numerosity.

Commonality and typicality, as required by Rule 23(a)(2) and (3), are also met in this
case. See Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (noting commonality and
typicality requirements “tend to merge into one another”). Plaintiffs argue that Defendants
violated NYLL § 196-d by instituting uniform policies of retaining five percent of all tips,
retaining a cut of tips for Zambrano, and requiring that tips be shared with management
employees. (ECF No. 39 at 11-14.) “[C]ourts routinely certify classes based on the common
question of whether employees were denied tips because they were required to share gratuities
with tip-ineligible employees.” Chakma v. Sushi Katsuei, Inc., No. 23-CV-7804, 2025 WL
429730, at *7 (S.D.N.Y. Feb. 7, 2025). The common question of “whether Defendants illegally

took the tip credit . . . will produce answers that apply to all plaintiffs . . . and drive the resolution
of this litigation.” Zivkovic v. Laura Christy LLC, 329 F.R.D. 61, 69 (S.D.N.Y. 2018); see also
Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011) (finding
commonality where “Plaintiffs’ NYLL class claims all derive from the same compensation
policies and tipping practices”). It is of no moment that Plaintiffs started working for Defendants
in 2024 yet seek to certify a class of those employed by Defendants at any time on or after
February 14, 2019: Plaintiffs provide uncontroverted evidence that Defendants have employed
these practices “since the beg[in]ing” and across all Fellini locations. (See ECF No. 40-1 at 4.)
For similar reasons, Plaintiffs have demonstrated by a preponderance of the evidence that “the
claims or defenses of the representative parties” are “typical of the claims or defenses of the
class.” Fed. R. Civ. P. 23(a)(3). Each class member’s claim “arises from the same course of
events and each class member makes similar legal arguments,” namely, that Defendants’ tip
retention policy violates the NYLL. Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
Plaintiffs satisfy the remaining Rule 23(a) requirements. Rule 23(a)(4) requires a

plaintiff to show that (1) “there is no conflict of interest between the named plaintiffs and other
members of the plaintiff class” and (2) “class counsel is qualified, experienced, and generally
able to conduct the litigation.” Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir.1997).
Plaintiffs have adequately shown that the class representatives have “no known conflicts with
any class member.” Shahriar, 659 F.3d at 253. Indeed, “[t]he fact that plaintiffs’ claims are
typical of the class is strong evidence that their interests are not antagonistic to those of the
class.” Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 158 (S.D.N.Y. 2008). Furthermore,
this Court has no reason to doubt the credentials or skill of Plaintiffs’ counsel, who have
demonstrated their competence in the course of this case so far. As to the implied requirement of

ascertainability, “a class [must] be identifiable before it may be properly certified.” Hamelin v.
Faxton-St. Luke’s Healthcare, 274 F.R.D. 385, 396 (N.D.N.Y. 2011). Plaintiffs’ proposed class
faces no ascertainability concerns, as it comprises all tipped employees who worked at any of
Defendants’ locations during the limitations period. See Schear, 297 F.R.D. at 125 (holding that
a class of “all of the tip eligible employees who worked [for the defendant] through the class
period” is ascertainable).
Plaintiffs also satisfy Rule 23(b)(3), which requires “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). Predominance “is a more demanding
criterion than the commonality inquiry under Rule 23(a).” Moore v. PaineWebber, Inc., 306
F.3d 1247, 1252 (2d Cir. 2002). That said, “individualized damages determinations alone cannot
preclude certification under Rule 23(b)(3).” Roach, 778 F.3d at 409.
Plaintiffs prevail on the predominance requirement because “resolution of some of the

legal or factual questions that qualify each class member’s case as a genuine controversy can be
achieved through generalized proof,” and “these particular issues are more substantial than the
issues subject only to individualized proof.” In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d
108, 118 (2d Cir. 2013) (quotation marks omitted). Plaintiffs allege that Defendants applied the
same policies and practices to all members of the proposed class. (See ECF No. 40-1 at 4.)
Thus, “[a]lthough individualized determinations must be made as to the amount of wages . . .
each Plaintiff is due based on . . . the number of hours worked, common legal issues related to
the members’ entitlement to . . . wages and the proper measure of such wages clearly
predominate over these relatively simple, mechanical calculations.” Whitehorn v. Wolfgang’s

Steakhouse, Inc., 275 F.R.D. 193, 200 (S.D.N.Y. 2011) (quotation marks omitted); see also
Zivkovic, 329 F.R.D. at 75. This is not a case where “[q]uestions of individual damage
calculations will inevitably overwhelm questions common to the class.” Comcast Corp., 569
U.S. at 34. Instead, although putative class members will be entitled to varying amounts of
damages based on the amount of tips withheld from them, generalized proof predominates in the
sense that each class member’s damages will be based on the same allegedly unlawful policies.
Lastly, Plaintiffs have demonstrated that a class action is superior to other methods of
adjudication for their tip-retention claim. In analyzing superiority, “courts must consider four
nonexclusive factors: (1) the interest of the class members in maintaining separate actions; (2)
‘the extent and nature of any litigation concerning the controversy already commenced by or
against members of the class’; (3) ‘the desirability or undesirability of concentrating the
litigation of the claims in the particular forum’; and (4) ‘the difficulties likely to be encountered
in the management of a class action.’” In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 230
(2d Cir. 2006) (quoting Fed. R. Civ. P. 23(b)(3)). These factors favor class certification here, as

“large numbers of employees are injured by common policies, but the damages suffered are
small relative to the burden of individual litigation, meaning class treatment may be the only
mechanism for those employees to obtain relief.” Gonzalez v. Hanover Ventures Marketplace
LLC, No. 21-CV-1347, 2024 WL 1157074, at *7 (S.D.N.Y. Mar. 18, 2024). In the absence of a
class action, individual employees are unlikely to seek relief—and if they do, the result would be
a host of cases litigating the same question of whether Defendants enforced their policy of tip
retention against the employee.
Accordingly, Plaintiffs’ proposed class is certified as to their claim under NYLL § 196-d.
Having considered the factors set out in Rule 23(g), this Court orders that Plaintiffs’ counsel is

appointed class counsel.
B. Remaining Claims
Plaintiffs further allege that Defendants “implemented a common policy of . . . paying
tipped employees on a biweekly basis . . . and failing to provide the required wage notices.”
(ECF No. 39 at 19.) On these claims, Plaintiffs have failed to show by a preponderance of the
evidence that each Rule 23 requirement has been met.
Plaintiffs’ delayed pay claim arises from NYLL § 191(1)(a)(i), which requires weekly
pay for “manual workers.” N.Y. Lab. L. § 191(1)(a)(i). The NYLL defines a manual worker as
a “mechanic, workingman or laborer.” Id. at § 190(4). “[T]he [New York Department of Labor]
has interpreted the term to include ‘employees who spend more than 25 percent of their working
time performing physical labor,’ with ‘“physical labor” broadly includ[ing] a wide range of
physical activities undertaken by employees.” Balderramo v. Go New York Tours Inc., 668 F.
Supp. 3d 207, 225 (S.D.N.Y. 2023) (quoting N.Y. Dep’t of Labor Opinion Letter, No. RO-09-
0066 (May 21, 2009)). “In general, the [Department of Labor] looks at the duties performed by
an employee in order to determine whether he or she is a manual worker and makes a case-by-

case determination.” Id. at 225-26. Under this guidance, courts have consistently classified
cooks and waitstaff as manual workers. See, e.g., Beh v. Community Care Companions, Inc.,
No. 19-CV-1417-JLS-HBS, 2021 WL 3914297, at *3 (W.D.N.Y. Feb. 1, 2021); Urtubia v. B.A.
Victory Corp., 857 F. Supp. 2d 476, 482 (S.D.N.Y. 2012).
Plaintiffs allege that, as baristas and servers, their duties consisted of physical work, and
therefore they were owed weekly pay. (See Compl. ¶¶ 17, 43; Erickson Decl. ¶ 23; Allen Decl.
¶ 23; Everett Decl. ¶ 23.). However, Plaintiffs have not adequately alleged that their proposed
class of Defendants’ tipped food service employees qualify as manual workers. Indeed,
Plaintiffs have made no allegations as to the type of work done by other tipped food service

employees, a category that may encompass a variety of roles that involve different levels of
physical activity. Thus, on the record before this Court, it’s unclear that the “resolution of some
of the legal or factual questions that qualify each class member’s case as a genuine controversy
can be achieved through generalized proof” and that “these particular issues are more substantial
than the issues subject only to individualized proof.” In re U.S. Foodservice Inc. Pricing Litig.,
729 F.3d at 118. Plaintiffs have not shown that the question of liability will have a common
answer as to all class members, and making a “case-by-case determination,” Balderramo, 668 F.
Supp. 3d 225, as to whether each employee satisfies the definition of manual worker would
overwhelm any questions of law or fact common to the class.
Plaintiffs also allege that Defendants failed to provide the putative class with the proper
notices as required by NYLL § 195. (Compl. ¶¶ 28, 49, 69). However, none of the Plaintiffs’
declarations discuss the lack of statutorily required notices, and the pleadings before this Court
do not adequately allege a uniform policy of not providing notices. “While employee-plaintiffs
can rarely point to an explicit policy of their employer that is violative of their rights and proof of

de facto policies has therefore become the coin of the realm, putative class plaintiffs must still
present enough evidence to confidently suggest a uniform, or nearly uniform, practice.”
Pichardo, 2025 WL 1122531, at *4 (quotation marks omitted). Here, where “Plaintiffs have no
statistical analyses, and anecdotal evidence from just a few employees,” that “is not enough for
the Court to be confident that Defendants treated all or most employees uniformly.” Id.
Plaintiffs therefore fail to satisfy the commonality or predominance requirements of Rule 23.
IV. Discovery
Plaintiffs “also seek discovery from Defendants and Defendants’ third-party payroll
providers relating to, among other things, the identities of all tipped employees who worked for
Fellini’s during the relevant time period.” (ECF No. 39 at 18 n.2.) Under Federal Rule of Civil

Procedure 26(d)(1), “[a] party may not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure
under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.”
Fed. R. Civ. P. 26(d)(1). “To obtain discovery in advance of such a conference, the moving
party must satisfy a flexible standard of reasonableness and good cause.” de Henriques v.
William James Bushell Corp., No. 23-CV-2990, 2023 WL 5671559, at *1 (S.D.N.Y. Sept. 1,
2023) (quotation marks omitted).
Plaintiffs have established good cause and reasonableness. “[D]istrict courts in numerous
circuits have authorized discovery against a non-appearing defendant in support of a class
certification investigation.” Katz v. Curis Pharmacy, LLC, No. 22-CV-644, 2023 WL 5769499,
at *6 (S.D.N.Y. Sept. 7, 2023); see, e.g., Frankiewicz v. Manhattan Cryobank, Inc., No. 20-cv-
5157, ECF No. 33 (S.D.N.Y. June 22, 2021) (granting motion for discovery to obtain
information related to class members). Plaintiffs’ complaint appears to sufficiently state a claim
under NYLL § 196-d and Plaintiffs have sufficiently alleged that Defendants’ purported
violation of the statute results from a uniform policy affecting all members of the proposed class.
Discovery 1s subsequently necessary to (1) identify class members and (2) determine the amount
of tips withheld from class members over the class period. “Accordingly, there exists good
cause for limited discovery to identify class members . . . and to determine damages.” de
Henriques, 2023 WL 5671559, at *2. The Court therefore grants Plaintiffs’ motion for discovery
and authorizes Plaintiffs to take discovery as needed to obtain information ascertaining the
amount of tips wrongfully withheld from tipped food service employees of Defendants during
the class period.
V. Conclusion
For the foregoing reasons, Plaintiff's motion for class certification is GRANTED as to their
claim under NYLL § 196-d and DENIED as to their remaining claims.
Plaintiffs’ motion for class discovery is GRANTED. Plaintiffs have 120 days from the
date of this Opinion and Order to complete class discovery.
The Clerk of Court is directed to (1) close the motion at ECF No. 38 and (2) amend the
caption on ECF to replace the name of Plaintiff “Everett Heather” with “Hannah Everett.”
SO ORDERED.
Dated: August 18, 2025
New York, New York

United States District Judge

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