Won v. Amazon.com, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CORRES ON uly end on eal” yeoRaNDUM 8 ORDER

> 21-CV-2867 (NGG) (LKE)

Plaintiff,

-against-

AMAZON.COM SERVICES LLC,

Defendant.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Caonaissa Won brings this action, on behalf of herself

and other persons similarly situated, against Defendant Ama-

zon.com Services, LLC (“Amazon” or “Defendant”) for alleged

violations of the Uniform Services Employment and Reemploy-

ment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et seq.

(Amended Complaint (“Am. Compl.”) (Dkt. 18).) Plaintiff moved

to certify classes pursuant to Rule 23(b)(2) and 23(b)(3) of the

Federal Rules of Civil Procedure, to be appointed Class Repre-

sentative, and to have her counsel appointed Class Counsel. (See

Pls Memorandum of Law in Support of Pl.’s Motion for Class

Certification (“Mot.”) (Dkt. 54-1).) Amazon opposes Won’s Mo-

tion. (Def.’s Memorandum of Law in Opposition to Motion for

Class Certification ““Opp.”) (Dkt. 54-27).) Won also filed a Reply

responding to Amazon’s Opposition. (Pl.’s Reply Memorandum

of Law in Support of Pl.’s Mot. (“Reply”) (Dkt. 54-45).) The court

referred Plaintiffs motion to Magistrate Judge Lara K. Eshkenazi

for a Report and Recommendation (“R&R”) pursuant to 28

U.S.C. § 636(b)(1)(B) and Rule 72(b)(1) of the Federal Rules of

Civil Procedure. (June 21, 2024 Order Referring Mot.) Judge

Eshkenazi issued the annexed R&R on February 3, 2025, recom-

mending that the court grant Plaintiffs request to certify a class

under Rule 23(b)(3) but deny Plaintiffs request to certify a class

under Rule 23(b)(2). (R&R (Dkt. 62) at 26.) Judge Eshkenazi

also recommends that the court appoint Plaintiff as Class Repre-

sentative and appoint her counsel as Class Counsel under Rule

23(g). Ud.) The parties timely objected to the R&R. (See generally

Amazon Obj. to R&R (Dkt. 65); Won. Obj. to R&R (Dkt. 63).) For

the reasons set forth below, the court OVERRULES in part and

SUSTAINS in part the parties’ objections, and ADOPTS in part

and REJECTS in part the R&R. Plaintiffs motion is GRANTED in

part and DENIED in part.

I. BACKGROUND

A. Statutory and Regulatory Framework

Under USERRA, “a person who is absent from a position of em-

ployment by reason of service in the uniformed services shall be

... entitled to such other rights and benefits not determined by

seniority as are generally provided by the employer of the person

to employees having similar seniority, status, and pay who are

on furlough or leave of absence.” 28 U.S.C. § 4316(b) (1). Pursu-

ant to the regulations implementing 28 U.S.C. § 4316(b) (1), “[i]f

the non-seniority benefits to which employees on furlough or

leave of absence are entitled vary according to the type of leave,

the employee must be given the most favorable treatment ac-

corded to any comparable form of leave when he or she performs

service in the uniformed services.” 20 C.F.R. § 1002.150(b).

When comparing leave policies, the three relevant factors are du-

ration, purpose, and voluntariness of the leave. Id.

B. Factual Background!

1. Amazon’s Leave Policies

Amazon maintains several different policies for employees who

need to take short-term absences from work, including for mili-

tary service, jury service, and bereavement.

Amazon changed its Military Leave of Absence (“MLOA”) policy

twice in the last 13 years. From 2012 to 2016, Amazon paid

“[rJegular full-time and regular part-time” employees who were

ordered by the military to participate in “annual active duty train-

ing” for any difference in the pay they received from the miliary

and the pay they would normally receive from Amazon, provided

that their military pay was lower than their Amazon pay, for up

to 80 hours per year. (See Sealed Amazon Former MLOA Policy

(Dkt. 55-10) at 1.) These employees were also eligible for unpaid

leave if called into other forms of temporary military service. (Id.)

In 2016, Amazon removed the 80-hour cap, allowing up to a full

year of differential pay “per event (or the duration of the Military

[Leave of Absence], whichever is less).” (See Sealed MLOA Policy

(“MLOA Policy”) (Dkt. 55-12) at 1.)?

Amazon’s Jury Leave Policy generally provides for up to 10 days

of paid leave for each occasion employees are called to serve on

a jury or as a witness to court proceedings. (See Sealed Jury Leave

Policy (“Jury Leave Policy”) (Dkt. 55-9) at ECF p.4.)3 Unlike Am-

azon’s MLOA Policy, under which Amazon pays only the

1 Unless otherwise indicated, the following facts are drawn from the Amended

Complaint. For purposes of this class certification motion, the facts alleged in

the Amended Complaint are assumed to be true. See Shelter Realty Corp. v.

Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978).

2 The 2016 MLOA Policy was the policy in effect during Won’s employment at

Amazon.

3 While the availably leave days varies slightly by state and the employees’

work group, employees in work groups F, H, and R—the only work groups

difference between an employee’s military wage and the em-

ployee’s Amazon wage if the employee’s Amazon wage is greater

than the employee’s military wage, Amazon’s Jury Leave Policy

applies without regard to any compensation employees might re-

ceive for their jury service. (See id. (“[Employees] may retain all

allowances received from the court for [their] jury or witness

duty service.”).)

Amazon’s Bereavement Leave Policy provides for up to three days

of paid leave for full-time, reduced-time, and part-time employ-

ees to allow an employee to grieve the death of a person in the

employee’s “immediate family.” (Sealed Bereavement Leave Pol-

icy (Dkt. 55-5) at ECF p. 1.)

Amazon employees can request paid jury or bereavement online

via Amazon’s internal web platform. (See Mot. at 7-8.) However,

to request military leave, Amazon employees must make a re-

quest “by email or fax, with supporting documentation, to

Amazon’s Disability and Leave Services department.” (Id. at 8.)

2. Won’s Amazon Employment and Military Leave

Won began working as an Amazon fulfillment associate in the

shipping department at an Amazon facility in New York on July

1, 2019, earning $17.50 per hour. (See Am. Compl. 9{ 48-49.)

One month later, Won took military leave from August 11, 2019

to September 6, 2019.4 (Id. €9 51-52.) Initially, Amazon did not

pay Won for her military leave, due to what it describes as an

included in Won’s proposed class, (see Mot. at 9)—are generally entitled

to 10 days leave under the Jury Leave Policy, (see generally Jury Leave Pol-

icy).

4 Won alleges that she took two consecutive shorter leaves, from August

11, 2019 to August 21, 2019 and from August 22, 2019 to September 6,

2019, not one longer leave from August 11, 2019 to September 6, 2019.

(Am. Compl. 4 51-52.) As discussed in greater detail infra, Section IILA.,

the court concludes that Won took one continuous military leave of ab-

sence from August 11, 2019 to September 6, 2019.

administrative error. Ud. 4 53; see Amazon July 23, 2021 Pre-

Motion Conference Ltr. (Dkt. 15) at 2 n.2.) However, in July

2021, Amazon mailed Won a check for the differential pay pur-

suant to Amazon’s MLOA Policy. (Won Depo. Tr. Excerpts Pt. 2

(Dkt. 60-2) 204:18-207:6.) Won did not cash the check because

“ft came a little too late... after this suit was started.” (Id.

206:15-22.) See Won v. Amazon.com, Inc., No. 21-CV-2867

(NGG) (RER), 2022 WL 3576738, at *1 (E.D.N.Y. Aug. 19, 2022)

(dismissing Won’s injunctive and declaratory relief claims).

C. Procedural Background

As the parties have not objected to the procedural background as

outlined in the R&R, the court refers to the R&R for the case’s

complete procedural history. (See R&R at 3.) Raysor v. United

States, No. 3-CV-5418 (SLT) (IMA), 2014 WL 4658972, at *7

(E.D.N.Y. Sept. 17, 2014) (“A district court... is not required to

review the factual or legal conclusions of the magistrate judge as

to those portions of a report and recommendation to which no

objections are addressed.”). Won filed the instant case against

Amazon.com, Inc., Amazon.com Services LLC, and Amazon.com

Sales, Inc., on May 20, 2021, alleging one cause of action: viola-

tion of USERRA, 38 U.S.C. § 4316(b)(1), for failure to provide

paid short-term military leave while providing other forms of

paid short-term leave. (See Am. Compl. {74-83 (citing 38 U.S.C.

§ 4316(b)(1)).) Upon Amazon’s motion, the court dismissed Am-

azon.com, Inc. and Amazon.com Sales, Inc. from the case

without prejudice, dismissed Won’s claims for injunctive and de-

claratory relief, and denied Amazon’s motion to dismiss for lack

of standing and failure to state claim. See Won, 2022 WL

3576738, at *1. Won now moves to certify a class, to be ap-

pointed Class Representative, and to have her counsel appointed

Class Counsel. (See generally Mot.) Amazon opposes the motion.

(See generally Opp.) The court referred the motion to Magistrate

Judge Eshkenazi for an R&R. (See June 21, 2024 Order Referring

Mot.)

On January 16, 2025, Judge Eshkenazi heard oral argument.

(See Min. Entry Dated January 21, 2025.) On February 3, 2025,

Judge Eshkenazi issued her R&R. (See generally R&R.) Judge

Eshkenazi determined that Won met all the Rule 23(a) require-

ments for class certification. (See id. at 6-18.) Judge Eshkenazi

also reasoned that two of Won’s three proposed common ques-

tions of law and fact were indeed common: (1) whether paid

leave is a “right or benefit”? under USERRA and (2) whether the

MLOA Policy is comparable to the Jury Leave Policy. (See R&R at

14.) Judge Eshkenazi rejected Won’s third common question

concerning her “additional prerequisites” theory because she

failed to plead facts sufficient to support that question. (See id. at

7-14.) Ultimately, Judge Eshkenazi recommended that the court

deny certification of Won’s proposed Rule 23(b)(2) declaratory

relief class, but grant certification of her Rule 23(b)(3) damages

class. (See id. at 19-26.) The parties timely objected to the R&R.

(See generally Amazon Obj. to R&R; Won. Obj. to R&R.)

On February 27, 2025, the court reserved decision on Won’s class

certification motion in anticipation of the Supreme Court’s deci-

sion in Lab’y Corp. of Am. Holdings v. Davis, No. 24-304 (U.S.), a

case concerning standing jurisprudence for class actions. (See

February 27, 2025 Order Reserving Judg.) However, on June 5,

2025, the Court determined that the writ of certiorari was im-

providently granted and did not issue an opinion. See Lab’y Corp.

of Am. Holdings v. Davis, 605 U.S. 327 (2025) (“LabCorp”).° Ac-

cordingly, Won’s class certification motion is once again pending

before this court, along with the parties’ supplemental letters,

which largely reiterate their initial objections to the R&R. (See

5 Justice Brett M. Kavanaugh issued a dissenting opinion. See LabCorp, 605

US. at 328-34.

generally Won June 9, 2025 Ltr. (Dkt. 75); Amazon June 12,

2025 Ltr. (Dkt. 77); Won June 17, 2025 Ltr. (Dkt. 78).)

D. Proposed Class

Plaintiffs proposed class is “all current and former employees of

Amazon in work groups F, H, or R who took one or more short-

term military leaves of absence of no more than 30 days at any

time between April 1, 2012 and the date of judgment in this ac-

tion.” (Mot. at 9.)®

Il, LEGAL STANDARD

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)

(quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)).”

As an initial matter, Rule 23(a)’s four “prerequisites” require

(1) numerosity (“the class is so numerous that joinder of all

members is impracticable”); (2) commonality (“there are

questions of law or fact common to the class”); (3) typicality

(“the claims or defenses of the representative parties are typ-

ical of the claims or defenses of the class”); and (4) adequacy

of representation (“the representative parties will fairly and

adequately protect the interests of the class”).

In re Am. Exp. Anti-Steering Rules Antitrust Litig., Nos. 11-MD-

2221 (NGG) (RER), 13-CV-7355 (NGG) (RER), 2015 WL

6 Work group F is comprised of Amazon’s regular full-time employees, group

H is comprised of Amazon’s part time employees, who generally work 20-29

hours per week, and group R is comprised of Amazon’s reduced-time employ-

ees, who generally work 30-39 hours per week. (See Def.’s Resps. to Pl.’s

Second Set of Interrogs. (Dkt. 54-25) at 5-6.) Amazon pays employees in all

three groups through Amazon payroll; and employees in all three groups can

be salaried or hourly. (Ud. at 6.)

7 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

4645240, at *9 (E.D.N.Y. Aug. 4, 2015) (quoting Fed. R. Civ. P.

23(a)). The Second Circuit has also recognized an “implied re-

quirement of ascertainability.” See Brecher v. Republic of Arg., 806

F.3d 22, 24-25 (2d Cir. 2015). “A class is ascertainable when de-

fined by objective criteria that are administratively feasible and

when identifying its members would not require a mini-hearing

on the merits of each case.” Id.

Once these prerequisites are met, “the class must also be properly

certified under Rule 23(b)(1), (b)(2), or (b)(3).” In re Am. Exp.,

2015 WL 4645240 at *9. A Rule 23(b) (2) class requires 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). A Rule 23(b)(3) class

“demands that common questions of law or fact predominate

over individual questions that pertain only to certain class mem-

bers.” Ark. Tchr. Ret. Sys. v. Goldman Sachs Grp., Inc., 77 F.4th

74, 85 (2d Cir. 2023). The plaintiff “bears the burden of estab-

lishing by a preponderance of the evidence that each of Rule 23’s

requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537,

547 (2d Cir. 2010).

As a general matter, the Second Circuit gives Rule 23 a “liberal

rather than restrictive construction, and courts are to adopt a

standard of flexibility.” Candelaria v. Conopco, Inc., No. 21-CV-

6760 (NCM) (TAM), 2025 WL 1826454, at *3 (E.D.N.Y. July 2,

2025). “[I]t seems beyond peradventure that the Second Circuit’s

general preference is for granting rather than denying class cer-

tification.” Hasemann v. Gerber Prods. Co., 331 F.R.D. 239, 254

(E.D.N.Y. 2019). Rule 23 analysis must be “rigorous,” Gen. Tel.

Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982), but “[t]o deny a

class action simply because all of the allegations of the class do

not fit together like pieces in a jigsaw puzzle would destroy much

of the utility of Rule 23,” Cortigiano v. Oceanview Manor Home

for Adults, 227 F.R.D. 194, 203 (E.D.N.Y. 2005).

Further, the court must “resolve[] factual disputes relevant to

each Rule 23 requirement.” In re Initial Pub. Offerings Sec. Litig.,

471 F.3d 24, 41 (2d Cir. 2006); cf Comcast Corp. v. Behrend, 569

U.S. 27, 34 (2013) (“[T]he class determination generally in-

volves considerations that are enmeshed in the factual and legal

issues compromising the plaintiffs cause of action.”). In weighing

proffered evidence to resolve these factual issues, the court ap-

plies a preponderance of the evidence standard. See Teamsters

Loc. 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d

196, 202 (2d Cir. 2008).

Finally, when parties submit timely objections to a report and

recommendation, the court reviews de novo those parts of the

report and recommendation to which the parties object. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Upon de novo re-

view, the court “may accept, reject, or modify, in whole or in

part,” the magistrate judge’s findings. 28 U.S.C. § 636(b) (1).

III. DISCUSSION

A. Won’s Leave

As a preliminary matter, the court addresses a key factual dispute

between the parties: whether Won’s military leave of absence

was one extended leave (from August 11, 2019 to September 6,

2019) or two consecutive shorter leaves (from August 11, 2019

to August 21, 2019 and from August 22, 2019 to September 6,

2019). (See Compare Am. Compl. { 52; Jan. 16, 2025 Hrg Tran-

script (“Jan. 16 Hr’g Tr.”) (Dkt. 61) 5:15-24.) In its Opposition,

Amazon calculated the amount Won would receive under either

theory. (See Opp. at 8-9.) Under a one-leave theory, Won would

earn $3,508.73 under Amazon’s MLOA Policy and $3,489.61 un-

der Amazon’s Jury Leave Policy.® (See id. at 9.) However, under

a two-leave theory, Won would earn the same $3,508.73 under

Amazon’s MLOA Policy and $4,539.61 under Amazon’s Jury

Leave Policy. (See id.) In other words, comparing Amazon’s

MLOA Policy to its Jury Leave Policy, Won is $19.12 better off

under the MLOA Policy if she took one leave and is $1,030.88

worse off under the MLOA Policy if she took two leaves. Amazon

contends that Won took one leave for the entire period between

August 11, 2019 and September 6, 2019 (See id. at 8-10.)

Whether Won took one or two leaves significantly impacts her

comparative payouts under the Jury Leave Policy and MLOA Pol-

icy. This fact also dictates whether she suffered an injury

sufficient to confer standing under Article III of the Constitution

and her adequacy as a potential class representative. (See Opp.

at 8 (“[T]hat assertion [that Won earns less under Amazon’s

MLOA Policy than Amazon’s Jury Leave Policy] hinges on a dis-

puted, highly individualized factual question[.]”).) See also

TransUnion LLC vy. Ramirez, 594 U.S. 413, 427-29 (2021) (“[A]n

injury in law is not an injury in fact... In sum, the concrete-harm

requirement is essential to the Constitution’s separation of pow-

ers.”). Accordingly, before assessing the merits of Won’s Motion,

the court first resolves this factual dispute. See In re In re Initial

Pub. Offerings, 471 F.3d at 41. At the class certification stage,

the court reviews “whatever underlying facts are relevant,” in-

cluding “affidavits, documents, or testimony[.]” Teamsters, 546

F.3d at 204.

The court first considers the evidentiary support for Won’s asser-

tion that she took “two short-term military leaves of absence.”

8 The court, like the parties, adopts Amazon’s Jury Leave Policy, offering up to

10 days of full pay, as the USERRA comparator for the purposes of this Mem-

orandum and Order, but makes no determination as to whether the Jury Leave

Policy is the comparator as a matter of law.

10

(See Mot. at 2). Won cites only her response to Amazon’s inter-

rogatories, which simply restate the assertion. (See Pl.’s Resps. to

Def.’s First Set of Interrogs. (Dkt. 54-6) at 6 (“Plaintiff was re-

quired to take a short-term military leave from approximately

August 11, 2019 to August 21, 2019, and was required to take a

second short-term military leave from approximately August 22,

2019 to September 6, 2019.”).) When Judge Eshkenazi asked

about the “factual basis” for this assertion, Won’s counsel de-

murred. (See Jan. 16 Hrg Tr. 5:3-4 (“That is a fair question to

ask. It’s not a question that needs to be decided at this stage.”).)

When Judge Eshkenazi pressed further, noting that this question

“goes to [Won’s] representation of the class,” (id. 5:9-10), Won’s

counsel explained that the answer to the question is immaterial

because Won would still be representative of the class as pro-

posed given that the combined period of her two leaves was less

than 30 days. (See id. 6:3-11.) Won’s counsel then argued that

Won’s injury arose from the nonpayment rather than the under-

payment of her military leave pay. (See id. 6:11-15 (“[S]he got

no pay. She never even got differential pay. So she has suffered

an injury. She didn’t receive any pay for her military leave.”).) As

the court explained previously, in Won’s case, her injury in fact

and statutory injury are one and the same. See Won, 2022 WL

3576738, at *3 (rejecting Amazon’s argument that Won did not

have standing at the pleading stage as to her claim for damages).

During the January 16, 2025 hearing, Won’s counsel did not

point to any evidence supporting Won’s claim that she took two

leaves. (See generally Jan. 16 Hr’ Tr.)

Won’s Department of the Army military orders dated June 4,

2019 indicate that her training would last for a period of “15 duty

day(s),” and that she was to report to Fort Pickett, Virginia no

later than August 11, 2019, implying an absence from her Ama-

zon employment until at least August 26, 2019. (See Sealed Won

Military Orders (Dkt. 55-24) at 1.) Ultimately, Won’s own testi-

mony regarding the period in question is most illuminating to the

11

court. (See Won Depo. Tr. Excerpts Pt. 1 (Dkt. 55-20) 216:3-

218:22.) Won described “two sets of orders”: a 15-day training

period at Fort Pickett, followed by additional “trail team” duty

days where the Army tasked Won with “restoration duties.” (Id.

216:7-217:24.) Won testified that the location and duration of

the second orders depended “on the training and the extent of

the restoration that’s needed.” (Id. 218:11-15 (“They may need

you for 10 days, they may need you for five days after.”).) Most

critically, when asked if she knew in advance of the training

whether she would be on the trail team, Won answered in the

affirmative. (id. 217:9-15). Despite the uncertainty of the second

leave’s length, Won knew her leave would be 15 days at mini-

mum, and most likely would be a total of between 20 to 25 days,

depending on the duration of her “trail team” assignment. (See

id. 216:3-217:24.)

While Won’s military leave might have been for two consecutive

assignments, the second assignment immediately followed the

first 15-day assignment, and both assignments were directly re-

lated. (See id. 216:3-218:22.) She received the two sets of orders

at the same time, meaning she was aware that there was no pos-

sibility of returning to work at Amazon in between the two

assignments. (Id.) Accordingly, the court finds that Won took one

continuous military leave of absence from August 11, 2019 to

September 6, 2019.

B. Rule 23

The court first addresses Rule 23(a), which includes the certifi-

cation requirements for all class types. The court then turns to

the specific class types pursuant to which Won seeks certification.

See Fed. R. Civ. P. 23.

12

1. Rule 23(a)

a. Numerosity

The first requirement under Rule 23(a) is numerosity: the pro-

posed class must be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). “[T]here is no magic

minimum number that establishes numerosity.” Westchester In-

dep. Living Ctr., Inc. v. State Univ. of N.Y., Purchase Coll., 331

F.R.D. 279, 288 (S.D.N.Y. 2019). But in general, numerosity is

“presumed for classes larger than forty members.” Pa. Pub. Sch.

Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d

Cir. 2014). Based on data produced by Amazon, Won posits that

there are “approximately 9,422 Class Members for the time pe-

riod March 2018 through November 2022.” (Mot. at 10 (citing

Declaration of Dylan Marlborough (“Marlborough Decl.”) (Dkt.

54-2) § 8); see also Marlborough Decl. 1{ 3, 6.) Amazon does not

contest numerosity. (See generally Opp.) Accordingly, the court

finds Plaintiffs class sufficiently establishes numerosity under

Rule 23(a)(1).

b. Commonality

The second requirement under Rule 23(a) is commonality: there

must be “questions of law or fact common to the class.” Fed. R.

Civ. P. 23(a)(2). Rule 23(a)(2) does not require all class mem-

bers or claims to be identical, but there must be “some unifying

thread among the members’ claims that warrants class treat-

ment.” Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156

(S.D.N.Y. 2008). However, the plaintiff must “demonstrate that

the class members have suffered the same injury.” Wal-Mart, 564

U.S. at 350. Won proposes three common questions: (1)

“whether paid leave is a ‘right’ or ‘benefit” under USERRA; (2)

“whether short term military leave is comparable to jury leave”;

and (3) “whether Amazon offered paid short-term military leave

on a comparable basis with other paid leave without imposing

additional prerequisites.” (See Mot. at 12-14.)

13

Judge Eshkenazi reasoned that the first two questions were suf-

ficient to meet the commonality requirement of Rule 23(a)(2).

(See R&R at 14.) As to Won’s first purely legal question (i.e.,

whether paid leave is a “right” or “benefit”? under USERRA),

Judge Eshkenazi recognized that the court had previously deter-

mined that paid leave was a “right” or “benefit” under USERRA.

(See R&R at 8 (citing Won, 2022 WL 3576738, at *9).) And other

courts share the view that this question is common for USERRA

plaintiffs. See, e.g., Clarkson v. Alaska Airlines Inc., No. 19-CV-5,

2020 WL 4495278, at *4 (E.D. Wash. Aug. 4, 2020) (determin-

ing that “whether paid leave is one of the rights and benefits that

must be provided equally to employees on military leave under

USERRA” was a common legal question), class decertified on other

grounds, 2020 WL 13311693 (E.D. Wash. Nov. 3, 2020); Baker

v. United Parcel Serv., Inc., No. 21-CV-114, 2023 WL 4355333, at

*3 (E.D. Wash. July 5, 2023) (same); Huntsman v. Southwest Air-

lines Co., No. 19-CV-83, 2021 WL 391300, at *4 (N.D. Cal. Feb.

3, 2021) (same). As to Won’s second proposed common question

(i.e., whether short-term military leave is comparable to jury

leave), Judge Eshkenazi reasoned that it was a common question

because “[s]hort-term military leave and jury duty leave are em-

ployment policies that apply equally to the proposed class

members.” (R&R at 8.) Finally, Judge Eshkenazi rejected Won’s

third proposed question (ie., whether Amazon offered paid

short-term military leave on a comparable basis with other paid

leave without imposing additional prerequisites) because Won

pleaded “no specific facts in her Amended Complaint that eluci-

date this theory of liability.” (id. at 13.)

Amazon raises several objections to Judge Eshkenazi’s recom-

mended findings. (See generally Opp.; Amazon Obj. to R&R at

10-11.) While Amazon does not specifically object to the first

purely legal question, it argues that comparing its leave policies

is an exercise “rife with individual inquires.” (Opp. at 12.) First,

it argues that the duration, purpose, and voluntariness of each

14

employee’s military leave varies widely. (See id. at 12 (comparing

average military leave durations across states), 13 (noting that

the purpose of leave is “subjective” and that there is “a range of

experiences with respect to employees’ ability to choose when to

take military leave”).) Second, Amazon argues that these ques-

tions do not “generat[e] common answers” as to whether certain

class members are better or worse off under Amazon’s current

MLOA Policy versus its Jury Leave Policy. (Amazon Obj. to R&R

at 11 (quoting Wal-Mart, 564 U.S. at 350).) Amazon argues

that unlike other cases that have compared leave policies un-

der USERRA where the defendant offered no pay for military

leave, comparing Amazon’s leave policies involves assessing so

many individual variables (e.g., an individual’s pay rates at

Amazon and the military) that it frustrates commonality. (See

id. (citing Clarkson v. Alaska Airlines, Inc., 59 F.4th 424, 431

(9th Cir. 2023); Baker, 2023 WL 4355333, at *1).) Finally,

Amazon claims that both Won and the R&R adopt what it char-

acterizes as a “flawed understanding of USERRA” that in turn

“color[s] the analysis of the requirements for class certification,”

including commonality. Ud. at 8, 10-11.) This flawed under-

standing, Amazon argues, results in a USERRA comparison that

pits its current MLOA Policy against a policy that would entitle

Plaintiff to the full pay for the first 10 days of leave then differ-

ential pay thereafter, a “Frankenstein preferential treatment

policy that was never in effect.” (Id. at 7.)

The court reiterates its earlier finding that “rights and benefits’

in 38 U.S.C. § 4316(b) . . . encompass paid leave.” Won, 2022

WL 3576738, at *9. The court agrees with Amazon that, to the

extent that the Jury Leave Policy is the comparable policy,

USERRA would require Amazon to provide up to 10 days of full

15

pay per instance of leave, mirroring the Jury Leave Policy.? This

is exactly the comparison the second common question seeks to

pose. The presence of individual variables (e.g., an individual’s

pay rates at Amazon and the military) does not frustrate the sin-

gle common variable with which USERRA is concerned: the

presence of a gap between a non-seniority-based “right” or “ben-

efit” offered to employees that is superior to what is offered to

employees who serve in the military. The commonality arises

from the presence of a difference between payouts under the dif-

ferent leave policies; the amount of the difference will be

determined at the damages stage. Accordingly, the court finds

that there are two common questions of law and fact, satisfying

the commonality requirement of Rule 23(a) (2).

c. Typicality

The third requirement under Rule 23(a) is typicality: “the claims

or defenses of the representative parties [must be] typical of the

claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The

plaintiff must show that “each class member’s claim arises from

the same course of events and each class member makes similar

9 Won argues that Amazon’s “project of comparing its existing benefit to the

relief Plaintiff seeks misses the point,” and points out that “[n]othing stops

[Amazon] from continuing to provide differential pay for longer leaves,” after

the 10 days of paid leave have expired. (Reply at 2.) The court rejects Won’s

framing of the analysis. USERRA requires only that service members receive

“the most favorable treatment accorded to any comparable form of leave.” 20

C.FE.R. § 1002.150(b). If, as Won asserts, the Jury Leave Policy is that “compa-

rable form of leave,” then, under USERRA, she is entitled to no more pay than

what would be provided under that policy. Judge Eshkenazi correctly applied

the policy comparison analysis required under USERRA in her finding of com-

monality. (See R&R at 12 (“As Plaintiff explained at oral argument, she is not

asking the court to find that Amazon cannot offer more benefits under

USERRA than what Amazon offers employees on jury duty leave. Rather, Plain-

tiffs claim is based on the premise that the policy Amazon has applied to short

term military leaves is not the most favorable treatment that it affords to the

people who are taking leaves.”).)

16

legal arguments to prove the defendant’s liability.” In re Flag Tel-

ecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009).

Won’s arguments for typicality flow from her commonality argu-

ments: “she challenges the same uniform policies and practices.”

(Mot. at 15.) Amazon fixates on Won’s individual injury (or lack

thereof), but the court discusses this infra at Section III.B.1.d.

(See Opp. at 14.) More broadly, Amazon argues that the various

leave policies referenced by Won across three classes of employ-

ees frustrates typicality because different classes of employees

within Won’s proposed class accrue different leaves at different

rates and for different purposes. (See Opp. at 14 (citing Baker,

2023 WL 4355333, at *3-4).)

The class members’ injuries here arise from the same course of

events. The court concurs with Judge Eshkenazi’s reasoning that

“[Amazon’s] employment policies apply equally to each member

of the proposed class, including Plaintiff.” (R&R at 16.) Unlike in

Baker, where the employees accrued paid leave at different rates

based on whether they were full-time or part-time, “the amount

of jury duty leave provided by [Amazon] is uniform across the

proposed class, regardless of working group or whether an em-

ployee works part-time or full-time.” (id. at 15-16 (discussing

Baker, 2023 WL 4355333, at *3).) As explained supra in Section

III.B.1.b, the fact that the Amazon policy that allegedly violates

USERRA involves differential payment, rather than nonpayment,

does not detract from the typicality of all servicemembers who

allegedly receive less than they are entitled to; as this difference

results from a common policy, it creates a gap that is typical of

the class. Accordingly, Won’s claims are typical because she is

subject to the same employment practice that affects the broader

class. (See id. at 16 (citing Robidoux v. Celani, 987 F.2d 931, 936-

37 (2d Cir. 1993) (“When it is alleged that the same alleged un-

lawful conduct was directed at or affected both the named

17

plaintiff and the class sought to be represented, the typicality re-

quirement is usually met.”)).)

d. Adequacy

The fourth and final Rule 23(a) requirement is adequacy: “the

representative parties [must] fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a) (4). “Representatives

must be part of the class and possess the same interest and suffer

the same injury as the class members.” Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 594-95 (1997). This inquiry “serves to

uncover conflicts of interest between named parties and the class

they seek to represent.” Id. at 625. The court must determine

whether “1) plaintiffs interests are antagonistic to the interest of

other members of the class and 2) plaintiffs attorneys are quali-

fied, experienced and able to conduct the litigation.” Cordes & Co.

Fin. Servs, v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir.

2007). “[P]laintiffs in a class action cannot represent a class of

whom they are not a part[.]” Irvin v. Harris, 944 F.3d 63, 71 (2d

Cir. 2019). Finally, the court must consider the adequacy of class

counsel based on the following factors: (i) “the work counsel has

done in identifying or investigating potential claims in the ac-

tion”; (ii) “counsel’s experience in handling class actions, other

complex litigation, and the types of claims asserted in the action”;

(iii) “counsel’s knowledge of the applicable law’; and (iv) “the

resources that counsel will commit to representing the class.”

Fed. R. Civ. P. 23(g)

Amazon argues that Won cannot satisfy Rule 23(a)(4)’s ade-

quacy requirement because she is better off under its current

MLOA Policy than she would be under its Jury Leave Policy and

therefore did not suffer an injury. (Amazon Obj. to R&R at 18-

21.) It is important to distinguish the two “injuries” in question.

First, there is the USERRA injury necessary for statutory standing.

As Judge Eshkenazi reasoned, a class member is injured under

USERRA “if they took short-term military leave of up to ten days

18

and either (1) received no pay from Amazon for those days, or

(2) received differential pay from Amazon for those days.” (See

R&R at 23 (quoting Mot. at 20).)!° “In either situation, if Plaintiff

proves her theory of liability, the damages to potential class

members would flow from the same injury—Plaintiffs claim that

Amazon violated USERRA by not offering full paid leave for

short-term military leave while offering full paid leave for a com-

parable leave, such as jury duty.” (Id.) While Amazon insists that

its MLOA Policy requires individualized adjudication because

each employees’ pay is a function of both Amazon’s and the mil-

itary’s daily wages, (see Amazon Obj. to R&R at 8, 11, 16), this

reasoning conflates each individual class member’s damages with

the ability to certify a common question for liability. Even though

the duration of employees’ leave may differ, the nature of their

respective USERRA injuries is uniform: because the MLOA Policy

pays less than a full day’s wages, the statutory injury is clear. “De-

fendant’s policy itself creates the same classwide injury for each

class member.” (R&R at 24-25.)

Second, there is the injury in fact required under Article III of the

Constitution: class members must have suffered “concrete harm.”

TransUnion, 594 U.S. at 417; Frank v. Gaos, 586 U.S. 485, 491

(2019) (“Article III standing requires a concrete injury even in

the context of a statutory violation”). Here, that would mean that

class members are financially worse off under the application of

Amazon’s MLOA Policy than they would be under another Ama-

zon leave policy. Under Amazon’s various leave policies, the

length of leave, the applicable policy, and the class of employee

determines how much Amazon pays the employee during their

leave and thus determines whether there is a concrete injury.

(See generally MLOA Policy, Jury Leave Policy, Bereavement

Leave Policy.)

10 Because Amazon provided Won with a check for differential pay, Won

likely falls into the latter category.

19

Won’s alleged inadequacy forms the bulk of Amazon’s arguments

against her motion: “[t]he class is thus divided by an intractable

internal conflict” because “a significant portion of the putative

class (including Ms. Won herself) is likely to be financially better

off under Amazon’s uncapped differential-pay policy for military

leave.” (Amazon Obj. to R&R at 12.) In support of this argument,

Amazon relies primarily on TransUnion, which dealt with the is-

sue of Article III standing in the context of a Rule 23(b) (3) class.

(See Amazon June 12, 2025 Ltr. at 1-2.) 594 U.S. at 442. In par-

ticular, TransUnion addressed the question of whether, after a

defendant is found liable, uninjured class members can receive

damages. 594 U.S. at 417-18. The Supreme Court ruled that be-

cause the personal information of 6,332 of the 8,185 class

members (i.e., 77% of the class) was not actually disseminated

unlawfully to third parties in violation of the Fair Credit Report-

ing Act, these class members lacked a concrete injury and were

not entitled to share in the $60 million jury verdict. Id. at 417-

18, 422. The Court reasoned that even if plaintiffs prove a statu-

tory violation, they must still demonstrate Article III standing. Id.

at 427-30 (“[A]n injury in law is not an injury in fact... . In sum,

the concrete-harm requirement is essential to the Constitution’s

separation of powers.”); see also Gaos, 586 U.S, at 491. Amazon

argues that because “every class member must have Article III

standing in order to recover individual damages,” certifying a

class with uninjured members “transgresses this limitation.”

(Amazon Obj. to R&R at 19 (citing TransUnion, 594 U.S. at 431);

Amazon June 12, 2025 Ltr. at 2 (same).) In other words, Amazon

contends that TransUnion’s bar on uninjured members receiving

relief on the “back-end” must mean that these uninjured class

members have no standing to litigate on the “front-end”. (Ama-

zon June 12, 2025 Ltr. at 2.) Won disagrees on the scope and

applicability of TransUnion, arguing that Amazon’s reading goes

far beyond the actual holding in TransUnion, which, she argues,

20

was limited to damages and did not extend to class certifica-

tion.!! (See Won June 17, 2025 Ltr. at 1.)

Given the parties’ disagreements on the holding of TransUnion,

they then turn to Second Circuit precedent to support their re-

spective positions. (See generally Amazon June 12, 2025 Ltr.

(citing Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006);

Won June 17, 2025 Ltr. (same)) Amazon relies on the Denney

court’s statement that “no class may be certified that contains

members lacking Article III standing.” (Amazon Obj. to R&R at

19 (quoting Denney, 443 F.3d at 264).) Won instead points to a

post-TransUnion opinion issued in 2022, where the Second Cir-

cuit took issue with how “[s]ome may interpret” the specific line

in Denney cited by Amazon. See Hyland v. Navient Corp., 48 F.4th

110, 118, 118 n.1 (2d Cir. 2022). In Hyland, the Second Circuit

reiterated its explanation from Denney that “once it is ascertained

that there is a named plaintiff with the requisite standing, there

is no requirement that the members of the class also proffer such

evidence.” Id. at 118 n.1 (quoting Denney, 443 F.3d at 263-64);

11 In his LabCorp dissent, Justice Kavanaugh took issue with the Ninth Circuit’s

rule that permits certification of a class even when the proposed class “poten-

tially includes more than a de minimis number of uninjured class members.”

605 U.S. at 330 (Kavanaugh, J., dissenting) (citing Olean Wholesale Grocery

Coop., Inc. v. Bumble Bee Foods LLC, 31 F. 4th 651, 669 (9th Cir. 2022) (en

banc)). In support of a stricter standard, Justice Kavanaugh noted that the

Ninth Circuit’s rule would result in “overbroad” classes that “threaten massive

liability,” leading to “coerced settlements [that] substantially raise the costs of

doing business.” Id. at 333. Justice Kavanaugh also noted that Rule 23(f)’s pro-

vision providing for interlocutory review of district courts’ class certification

orders was created in 1998 specifically to alleviate the pressure to settle. Id.;

see Speerly v. Gen. Motors, 143 F.4th 306, 345 (6th Cir. 2025) (Thapar, J., con-

curring) (“Rule 23’s framers recognized the potential for abuse and provided

a protective mechanism: A district court’s decision certifying a class is immedi-

ately appealable.”). However, Justice Kavanaugh did address the question of

whether a de minimis exception might exist “when there is a de minimis num-

ber of uninjured class members, .. . so long as some identified mechanisms

exists to manageably remove those uninjured members from the class.” Lab-

Corp, 605 U.S. at 332 n.1 (Kavanaugh, J., dissenting).

21

see also Amador v. Andrews, 655 F.3d 89, 99 (2d Cir. 2011) (“In

a class action, once standing is established for a named plaintiff,

standing is established for the entire class.”)

In this Circuit, there is no bright-line rule requiring class-wide

standing “purity,” and certification is generally permitted where

some class members may be uninjured. See Seijas v. Republic of

Arg., 606 F.3d 53, 56-58 (2d Cir. 2010) (affirming class certifi-

cation despite “[c]omplicated questions . . . as to which

bondholders were class members and as to how much each class

member could recover”); Sykes v. Mel S. Harris & Assocs. LLC, 780

F.3d 70, 91 (2d Cir. 2015) (affirming class certification despite

the possibility that some class members were uninjured because

that issue was “a single arguably individual issue among the myr-

iad common issues”); Brown v. Kelly, 609 F.3d 467, 484 (2d Cir.

2010) (“Rule 23(b)(3) requires that common questions predom-

inate, not that the action include only common questions.”).

Lower courts have followed the Circuit’s lead. See, e.g., In re Actos

Antitrust Litig., No. 13-CV-9244 (RA), 2024 WL 4345568, at *11

(S.D.N.Y. Sept. 30, 2024) (rejecting the idea that “class member-

ship must be fully determined before a liability determination is

made”); In re Namenda Indirect Purchaser Antitrust Litig., 338

F.R.D. 527, 563 (S.D.N.Y. 2021) (concluding that “the fact that

some putative class members may be uninjured does not auto-

matically defeat predominance”); In re Restasis Antitrust Litig.,

335 F.R.D. 1, 17-18 (E.D.N.Y. 2020) (collecting cases and sug-

gesting that the outer limits of the de minimis allowance is

around five to six percent of the total class).

Won was better off under the MLOA Policy than she would have

been under the Jury Leave Policy. See supra Section III.A. This

creates a conflict between her interests and the interests of those

class members who were worse off under the MLOA Policy. See

Amchem Prods., 521 U.S. at 625; Cordes & Co. Fin. Servs., 502

F.3d at 99. Accordingly, the court departs from Judge Eshkenazi’s

22

recommendation and finds that Won is an improper representa-

tive. (See R&R at 16-18). The court declines to certify Caonaissa

Won as class representative. In Shankroff v. Advest, Inc., the court

conditionally certified a class because the sole named plaintiff

was an improper representative due to “potential for a conflict of

interest[]” with class members. 112 F.R.D. 190, 194 (S.D.N.Y.

1986) (conditioning certification on plaintiffs counsel proposing

“at least one plaintiff to proceed as representative on behalf of

the class” within 30 days). This court adopts the Shrankroff

court’s approach and directs Won’s counsel to propose at least

one plaintiff to serve as class representative within 60 days of this

Memorandum & Order.

The court is satisfied that Won’s counsel Outten & Golden LLP is

qualified to serve as class counsel. Several district courts have

appointed the firm as class counsel, and the court is confident

that its representation of the class would meet the standards set

out in Fed. R. Civ. P. 23(g). (See Declaration of Michael J.

Scimone (Dkt. 54-4) 995 (collecting USERRA cases where courts

appointed the firm as class counsel), 6 (collecting other cases

where courts appointed the firm as class counsel).)

e. Ascertainability

In addition to the four prerequisites enumerated under Rule

23(a), the final supplemental prerequisite recognized by the Sec-

ond Circuit is “an implied requirement of ascertainability,” which

requires a class to be “sufficiently definite so that it is administra-

tively feasible for the court to determine whether a particular

individual is a member.” Brecher, 806 F.3d at 24. Judge Eshke-

nazi reasoned that the proposed class is ascertainable: the class

can be determined based on objective criteria such as an em-

ployee’s Amazon work group, length of military leave, dates of

military leave, and whether a class member received differential

or other pay. (See R&R at 18.) This information should be readily

available in Amazon’s records. Amazon does not contest Judge

23

Eshkenazi’s recommendation as to ascertainability. (See generally

Amazon Obj. to R&R.) The court finds that Won’s proposed class

is ascertainable because class membership can be “defined using

objective criteria that establish a membership with definite

boundaries.” In re Petrobras Sec., 862 F.3d 250, 264 (2d Cir.

2017).

2. Rule 23(b)(2)

Plaintiff initially sought two forms of relief under Rule 23(b) (2):

(1) “a declaration that Amazon’s practice of creating barriers to

paid military leave violates USERRA”; and (2) “an injunction re-

quiring Amazon to offer paid military leave on an equivalent

basis with other paid leave.” (See Mot. at 17.) But in her Reply,

Won withdrew her request for an injunction. (Compare id. with

Reply at 9 (“[N]obody disagrees that Won, as a former employee,

cannot seek prospective injunctive relief.”)

The court previously dismissed Won’s injunctive and declaratory

relief claims. See Won, 2022 WL 3576738, at *4. Because Won

was no longer an Amazon employee at the time when she filed

her Complaint and had no intention of becoming one again, she

lacked standing to pursue forward-looking injunctive relief. Id.

(citing Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 465-66

(S.D.N.Y. 2013) (“[A] plaintiff generally lacks standing to seek

injunctive or declaratory relief against his or her former em-

ployer.”)). However, while the court granted Won leave to

amend her complaint to address this issue, id. at 4, she failed to

do so. Now, as part of her motion to certify a class, Won attempts

to take a second bite at the apple, this time asking the court for

“retrospective declaratory relief.” (Reply at 9 (emphasis in origi-

nal).)

As Won failed to amend her complaint to address both standing

and pleading insufficiencies with respect to her claims for declar-

atory relief, the court “declines plaintiffs invitation to resurrect

[her] previously dismissed” claim. Haymount Urgent Care PC v.

24

GoFund Advance, LLC, 738 F. Supp. 3d 426, 446 (S.D.N.Y. 2024).

For the same reasons the court dismissed her claims for injunc-

tive and declaratory relief, see Won, 2022 WL 3576736, at *4, the

court declines to certify her Rule 23(b) (2) class.

3. Rule 23(b)(3)

a. Predominance

The first requirement of a Rule 23(b)(3) class is that “questions

of law or fact common to class members predominate over any

questions affecting only individual members.” Fed. R. Civ. P.

23(b)(3). The predominance requirement is a corollary to Rule

23(a)(2)’s commonality requirement but involves a “far more de-

manding” inquiry into the common questions of law and fact and

“tests whether proposed classes are sufficiently cohesive to war-

rant adjudication by representation.” Amchem, 521 U.S. at 623-

24. To find predominance, the court must assess:

(1) the elements of the claims and defenses to be litigated,

(2) whether generalized evidence could be offered to prove

those elements on a class-wide basis or whether individual-

ized proof will be needed to establish each class member’s

entitlement to relief, and (3) whether the common issues can

profitably be tried on a class-wide basis, or whether they will

be overwhelmed by individual issues.

Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 512 (2d Cir.

2020). In addition, damages must be “capable of measurement

on a classwide basis.” Comcast, 569 U.S. at 34. But generally,

“courts have found Comcast to pose a low bar.” In re Vale S.A. Sec.

Litig., No. 19-CV-526 (RJD) (SJB), 2022 WL 122593, at *18

(E.D.N.Y. Jan. 11, 2022).

Won argues that the common issues predominate because “all

class members are subject to the same leave policies.” (Mot. at

19.) Amazon objects, arguing that Won’s individual inadequacy

25

is indicative of the inadequacy of the class, or at least the daunt-

ing prospect of “adjudicating the claims of absent class members

[that] would require endless minitrials.” (Amazon Obj. to R&R

at 14.) While the parties agree that damages must be assessed on

an individualized basis, they dispute whether that has a bearing

on predominance. (Compare Mot. at 20 (“The fact that some class

members may have suffered no damages does not defeat pre-

dominance”) with Opp. at 7 (“[FJiguring out which proposed

class members were ‘in fact’ injured ‘would require an individu-

alized inquiry, which would predominate’ the litigation.”

(quoting Namenda, 338 F.R.D. at 567)).)

The court agrees with Judge Eshkenazi’s finding that the two

common questions predominate over the individual questions.

The first common question, whether paid leave is a right or ben-

efit under USERRA, is a straightforward legal question with a

common answer resolved via common evidence. (R&R at 21-22.)

See Huntsman, 2021 WL 391300, at *10 (noting that “predomi-

nance in employment cases is rarely defeated on the grounds of

differences among employees so long as liability arises from a

common practice or policy of an employer”). The second com-

mon question, whether short-term military leave is comparable

to jury duty leave, also predominates because it involves “com-

parison of the leave policies themselves” and will “generate

generalized answers for each member of the proposed class.”

(R&R at 22 (citing Clarkson, 2020 WL 4495278, at *6 (reasoning

that the question of whether defendants provided other short-

term paid leave comparable to short-term military leave was a

common question that satisfied Rule 23(b)(3))).) The court also

agrees that “the need to plug in the rate of pay in for each class

member does not defeat class certification.” (Id. (citing Clarkson,

2020 WL 4495278, at *6 (certifying a Rule 23(b) (3) class alleg-

ing USERRA violation); Huntsman, 2021 WL 391300, at *14

(same); Baker, 2023 WL 4355333, at *5 (same)).)

26

Further, the court is undaunted by Amazon’s assertion that Won’s

proposed class composition raises the “spectre of class-member-

by-class-member adjudication.” (Amazon Obj. at 18 (quoting

Van v. LLR, Inc., 61 F.4th 1053, 1069 (9th Cir. 2023)).) Won’s

inadequacy as a class representative is rooted in her lack of stand-

ing under Article III, which Amazon argues is indicative of an

“attempt to certify an oversized class.” (Id. at 22.) Certainly, if

Amazon were to be found liable, the parties would have to en-

gage in an individualized inquiry to ensure that employees who

were better off under the MLOA Policy do not receive damages.

See generally TransUnion, 594 U.S. 413. But the process by which

individual determinations of damages must be made does not

dictate whether that class may be certified under Rule 23. See

Sykes, 780 F.3d at 88 (“Because the evidence necessary to make

out such damages claims, while individual, is easily accessible,

such individual damage considerations do not threaten to over-

whelm the litigation.”). Accordingly, the court finds that

common questions of law and fact predominate over any ques-

tions affecting only individual members, and the proposed class

satisfies the predominance requirement under Rule 23(b) (3).

b. Superiority

The second and final requirement of a Rule 23(b) (3) class 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). “Rule 23(b)(3) also lists four factors—individual con-

trol of litigation, prior actions involving the parties, the

desirability of the forum, and manageability—which courts

should consider in making [the determinations of predominance

and superiority].” Sykes, 780 F.3d at 82. While the text of Rule

23(b)(3) indicates that these considerations should apply to both

predominance and superiority, “they more clearly implicate the

superiority inquiry.” Id.

27

In support of her argument that a class action is a superior vehi-

cle, Won cites the relatively small individual damages compared

to the overall cost of litigation, and the lack of pending litigation

regarding Amazon’s short-term military leave policy. (Mot. at 21-

23.) While Amazon’s previously stated objections also relate to

the superiority analysis, Amazon’s objections to the R&R point

only to a provision of USERRA that provides for prevailing plain-

tifPs attorneys’ fees as “sufficient incentive to vindicate those

[individual] interests,” despite the relatively low damages at

stake for the individual. (Amazon Obj. to R&R at 18.) The court

concurs with Judge Eskehanzi that “a class action is a superior

method of resolving these claims on behalf of the proposed

class.” (R&R at 25.) Accordingly, the court finds that the second

prong of Rule 23(b) (3) is satisfied: the class action is superior to

other forms of adjudication.

28

IV. CONCLUSION

For the foregoing reasons, the court OVERRULES in part and

SUSTAINS in part the parties’ objections, and ADOPTS in part

and REJECTS in part the R&R. Plaintiffs motion to certify a class,

to be appointed Class Representative, and to have her counsel

appointed Class Counsel is GRANTED in part and DENIED in

part. Plaintiffs motion to be appointed Class Representative is

DENIED. Plaintiffs motion to have her counsel appointed Class

Counsel is GRANTED. Plaintiffs motion to certify a class under

Rule 23(b)(2) is DENIED, Plaintiffs motion to certify a class un-

der Rule 23(b)(3) is GRANTED, subject to an order due 60 days

from the date of this Memorandum & Order which shall propose

at least one plaintiff to proceed as representative on behalf of the

class. The plaintiff(s) to be proposed to the court shall be nomi-

nated by Plaintiffs counsel from those plaintiffs most willing and

able to serve. The order shall also contain a form of proposed

notice and plan for service of this class pursuant to Fed. R. Civ.

P, 23(d)(1).

SO ORDERED,

Dated: — Brooklyn, New York

August □□□ 2025

s/NGG

ICHOLAS G. GARAUFIS

United States District Judg

29