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Herzfeld v. 1416 Chancellor, Inc.

United States District Court, E.D. Pennsylvania

June 9, 2017

JESSICA HERZFELD, on behalf of herself and all others similarly situated
v.
1416 CHANCELLOR, INC. d/b/a THE GOLD CLUB, and DOES 1 through 10, inclusive and THE APM CLUB, INC. d/b/a THE GOLD CLUB

          ORDER

          KEARNEY, J.

         AND NOW, this 9th day of June 2017, following discovery on conditional certification and class certification (ECF Doc. Nos. 68), considering Plaintiffs Motion to conditionally certify a Fair Labor Standards Act collective action (ECF Doc. No. 98), Plaintiffs Motion to certify a class action under Rule 23 (ECF Doc. No. 97), Defendant's Response to both Motions (ECF Doc. No. 102) and for reasons more fully described in the accompanying Memorandum, it is ORDERED Plaintiff's Motions (ECF Doc. Nos. 97, 98) are GRANTED in part and DENIED in part upon our findings:

         I. We conditionally certify a collective action under the Fair Labor Standards Act for conduct on or before January 24, 2016.

         1. We GRANT Plaintiffs Motion to conditionally certify this action to proceed as a collective action (ECF Doc. No. 98) against 1416 Chancellor and APM Club, as successor, under the Fair Labor Standards Act on behalf of:

         All Dancers of the Gold Club in Philadelphia, Pennsylvania at any time from August 26, 2011 until January 24, 2016.

         2. Collective Findings.

         Plaintiff makes a modest factual showing the dancers are "similarly situated." Plaintiff adduced evidence 1416 Chancellor misclassified all dancers as independent contractors in the same manner. Plaintiff adduced evidence 1416 Chancellor uses the same fee schedule, tip-out requirements, rules, and regulations for all dancers. This evidence is sufficient to satisfy our first-tier review of Plaintiff's "modest factual showing" all dancers are "similarly situated" for purposes of 1416 Chancellor's misclassification of the dancers as independent contractors.

         3. Draft Notice to the collective.

         Plaintiff shall circulate a draft court-facilitated notice and protocol to Defendants no later than June 16, 2017, Defendants shall comment upon the draft and protocol to Plaintiff by June 21, 2017, and Plaintiff shall move for approval of her proposed Court-facilitated notice with a memorandum not exceeding ten (10) pages and identifying all areas of disagreement on the notice in an attached black-lined version of the proposed Notice on or before June 27, 2017. Defendants may file memoranda not exceeding ten (10) pages explaining its dispute with the proposed protocol or proposed black-lined notice on or before July 6, 2017.

         II. We deny certification for a collective action under the Fair Labor Standards Act for conduct on or after January 25, 2016.

         4. We DENY Plaintiffs request to certify a collective action (ECF Doc. No. 98) on or after January 25, 2016 when APM Club purchased the club. Plaintiff did not dance at the Gold Club during APM Club's ownership and lacks standing to bring a claim because she cannot plead a personalized injury she suffered caused by APM Club's conduct.

         III. We certify a Rule 23(b)(3) class action under Pennsylvania's Minimum Wage Act, Pennsylvania's Wage Payment and Collection Law, and unjust enrichment cause of action for conduct on or before January 24, 2016.

         5. We GRANT Plaintiffs Motion to certify (ECF Doc. No. 97) the Pennsylvania claims 1416 Chancellor and APM Club, as successor: (1) violated Pennsylvania's Minimum Wage Act by improperly classifying her as an independent contractor failing to pay minimum wage and overtime; (2) violated Pennsylvania's Wage Payment and Collection Law by taking her tips to cover its business expenses; and, (3) she unjustly enriched 1416 Chancellor by remitting her tips and working promotional events without pay under Fed.R.Civ.P. 23 on behalf of the defined "Class":

         All former Dancers of the Gold Club in Philadelphia, Pennsylvania at any time from August ...


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