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Defendants-appellants, Smith & Wollensky Restaurant Group, Inc. (d/b/a Park Avenue Restaurant), and Fourth Walls Restaurant LLC (d/b/a Park Avenue Restaurant) (collectively, "Park Avenue") appeal from a January 29, 2010, Order of the United States District Court for the Southern 239*239 District of New York (Cedarbaum, J.) granting a motion for class certification made, pursuant to Federal Rule of Civil Procedure 23, by plaintiffs-appellees, Salim Shahriar, Muhammad Islam, and Mary Harvey (collectively, the "Plaintiffs"). Plaintiffs worked for Park Avenue as waiters at the Park Avenue Restaurant in Manhattan. On behalf of themselves and all others similarly situated, they filed a Complaint on January 4, 2008, and an Amended Complaint on July 28, 2008, alleging that Park Avenue violated the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), Pub.L. No. 75-718, ch. 676, 52 Stat. 1060 (1938), 29 U.S.C. §§ 201-19 (2006), by requiring waiters to share tips with tip-ineligible employees. Plaintiffs allege that Park Avenue also violated various provisions of the New York Labor Law by requiring servers to share tips with tip-ineligible employees and by failing to pay waiters for an extra hour's work when their workdays lasted more than ten hours. Plaintiffs' federal claims for relief were brought as a collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), and a putative class action was brought with regard to Plaintiffs' New York State Labor Law claims.

On November 11, 2009, Plaintiffs moved to have their state law claims certified as a class action pursuant to Federal Rule of Civil Procedure 23 ("Rule 23"). The District Court heard oral argument and orally granted Plaintiffs' motion on January 28, 2010. In granting the motion, the court exercised supplemental jurisdiction over the Plaintiffs' New York State Labor Law claims and found that the requirements for class certification under Rule 23(a), (b)(3) had been met.

On February 11, 2010, Park Avenue filed in this Court, pursuant to Federal Rule of Civil Procedure 23(f), a petition for leave to appeal from the District Court's written January 29, 2010, interlocutory Order granting Plaintiffs' motion for class certification of their state law claims. Over plaintiffs' opposition, we granted the petition for leave to appeal on May 14, 2010. For the reasons that follow, we affirm the Order of the District Court certifying the class action.


659 F.3d 234 (2011)

Salim SHAHRIAR, Muhammad Islam, and Mary Harvey, on behalf of themselves and all others similarly situated, and Suhel Ahmed, Andrew Mellor, Maria Zayaruzny, Masud Ahad, Anthony Justin DeSouza, Nazaruddin Zaidan, Christopher Lee Robbins, Sebastian G. Joulain, Michael Mueller, Gous Uddin, Ron Elton Megason, Bobbi Kim, Nicholas Lee Mullins, Erasmo Dinninno, Matthew Alexander Wulf, Ishah Faith-Jannsen, Mahbub Malik, Raymond Taylor, Phyliss Lynn Spiece, Lawrence Larocca, Rbiai Ouazene, Pat Thuniljinda, Plaintiffs-Appellees, v. SMITH & WOLLENSKY RESTAURANT GROUP, INCORPORATED, DBA Park Avenue Restaurant, Fourth Walls Restaurant LLC, DBA Park Avenue Restaurant, Defendants-Appellants

Docket No. 10-1884-cv.

United States Court of Appeals, Second Circuit.

Submitted: 6/6/11

Decided: 9/26/11

New York Law School location: Box #156, File #4049