De Los Santos et al v. Hat Trick Pizza, Inc. et al

MOTION to Dismiss for Lack of Jurisdiction . Document

S.D.N.Y.October 17, 2016

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Marcelo De Los Santos, Sandro Mayoral- Climico, and Aaron Cruz Aguacatitla, individually and on behalf of others similarly situated, Plaintiffs, -against- Hat Trick Pizza, Inc., et al., Defendants. Civil Case No. 16-cv-06274 (AJN) NOTICE OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2) PLEASE TAKE NOTICE, that pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, and for the reasons set forth in the Memorandum of Law submitted in support of this motion, Defendants Team Stamford, LLC; AAR, LLC; Lucky 13, Inc., and A.C. Pizza, Inc. (collectively “Connecticut Cookston Defendants”) will move this Court, at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007, before the Honorable Alison J. Nathan for an Order granting Defendants’ motion to dismiss the Complaint in its entirety against the Connecticut Cookston Defendants because the Connecticut Cookston Defendants did not transact business within New York and otherwise do not have minimum contacts with New York, and because due process considerations so require. Therefore, the Court lacks personal jurisdiction over the Connecticut Cookston Defendants. The exhibits referred to in the Memorandum of Law, attached to this Notice as exhibits, include: 1. Affirmation of Cindy M. Cieslak – Exhibit A Case 1:16-cv-06274-AJN Document 59 Filed 10/17/16 Page 1 of 3 2 2. Complaint, dated August, 2016 – Exhibit B 3. Verification of Robert Cookston – Exhibit C Dated: Hartford, Connecticut October 17, 2016 Respectfully submitted, FORDHARRISON, LLP Attorneys for Defendants Team Stamford, LLC; AAR, LLC; Lucky 13, Inc.; A.C. Pizza, Inc., By:___/s/ Cindy M. Cieslak Robin B. Kallor, Esq. (Rk-6719) Cindy M. Cieslak (Cc-0234) FordHarrison, LLP 750 Main Street, Suite 606 Hartford, CT 06103 (860)748-4660 Eric Su, Esq. (Es-0626) Alyssa Smilowitz, Esq. (As-0822) FordHarrison, LLP 60 East 42nd Street, 51st Floor New York, New York 10017 (212)453-5935 Case 1:16-cv-06274-AJN Document 59 Filed 10/17/16 Page 2 of 3 3 CERTIFICATE OF SERVICE This is to certify that on this 17th day of October, 2016, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System. John Troy, Esq. Troy Law, PLLC 41-25 Kissena Boulevard, Suite 119 Flushing, NY 11355 Email: johntroy@troypllc.com Eric J. Wallach, Esq. Garrett D. Kennedy, Esq. Joseph A. Piesco Norman M. Leon, Esq. DLA Piper US LLP 1251 Avenue of the Americas New York, NY 10020 Email: eric.wallach@dlapiper.com garrett.kennedy@dlapiper.com joe.piesco@dlapiper.com norman.leon@dlapiper.com _/s/ Cindy M. Cieslak Cindy M. Cieslak WSACTIVELLP:8792224.1 Case 1:16-cv-06274-AJN Document 59 Filed 10/17/16 Page 3 of 3 EXHIBIT A Case 1:16-cv-06274-AJN Document 59-1 Filed 10/17/16 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Marcelo De Los Santos, Sandro Mayoral- Climico, and Aaron Cruz Aguacatitla, individually and on behalf of others similarly situated, Plaintiffs, -against- Hat Trick Pizza, Inc., et al., Defendants. DOCKET NO: 16-CV-06274(AJN) AFFIRMATION OF CINDY M. CIESLAK I, Cindy M. Cieslak, affirm the following: 1. I am associated with the law firm of FordHarrison, LLP, attorneys for Team Stamford, LLC; AAR, LLC; Lucky 13, Inc.; and A.C. Pizza, Inc., in connection with the above- referenced matter. I am familiar with the facts set forth below. 2. Attached to the Notice of Motion submitted herewith as Exhibit B is a true and accurate copy of the Complaint filed in this action, dated August 8, 2016. 3. Attached to the Notice of Motion submitted herewith as Exhibit C is the Verification of Robert Cookston, executed by him on October 17, 2016. VERIFICATION I, Cindy M. Cieslak, declare under penalty of perjury that the foregoing is true and correct. Executed on this 17th day of October, 2016 in Hartford, Connecticut. Cindy M. Ci ak WS ACT IVELLP:8792225.1 Case 1:16-cv-06274-AJN Document 59-1 Filed 10/17/16 Page 2 of 2 EXHIBIT B Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 1 of 52 T.Troy 1 TROY LAW, PLLC John Troy (JT 0481) 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Tel: (718) 762-1324 Attorneys for Plaintiffs, the proposed FLSA Collective, and potential Rule 23 class UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------X MARCELO DE LOS SANTOS, SANDRO MAYORAL-CLIMICO, and AARON CRUZ AGUACATITLA, individually and on behalf of others similarly situated, Plaintiffs, -against- HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza; COOKSTON ENTERPRISES, INC. d/b/a Domino’s Pizza; MUMBUH STYLE PIZZA, INC. d/b/a Domino’s Pizza; SESTWON PIZZA, LLC d/b/a Domino’s Pizza; 117 MINEOLA AVE., LLC d/b/a Domino’s Pizza; 1872A BELLMORE AVE., LLC d/b/a Domino’s Pizza; 1017 JERICHO TPKE LLC d/b/a Domino’s Pizza; 3489 RIVERHEAD PIZZA, LLC d/b/a Domino’s Pizza; 3469 MASTIC PIZZA, LLC d/b/a Domino’s Pizza; 3683 WASHINGTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza; 3456 HAMILTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza; 3342 NEW WINDSOR PIZZA, LLC d/b/a Domino’s Pizza; 3361 MONROE PIZZA, LLC d/b/a Domino’s Pizza; 3352 MOUNT KISCO PIZZA, LLC Case No: 16-cv-6274 29 U.S.C. § 216(b) COLLECTIVE ACTION & F.R.C.P. 23 CLASS ACTION COMPLAINT Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 1 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 2 of 52 T.Troy 2 d/b/a Domino’s Pizza; 3441 OSSINING PIZZA, LLC d/b/a Domino’s Pizza; 3488 CORTLANDT MANOR PIZZA, LLC d/b/a Domino’s Pizza; 3616 WEST VILLAGE PIZZA, LLC d/b/a Domino’s Pizza; 3694 LOWER EAST SIDE PIZZA, LLC d/b/a Domino’s Pizza; 3551 YONKERS PIZZA, LLC d/b/a Domino’s Pizza; TEAM STAMFORD, LLC d/b/a Domino’s Pizza; TEAM EAST HARTFORD, LLC d/b/a Domino’s Pizza; ROLLING IN THE DOUGH, LLC d/b/a Domino’s Pizza; CUSTOMERS FIRST OF CONNECTICUT, LLC d/b/a Domino’s Pizza; AAR, LLC d/b/a Domino’s Pizza; MIRC, LLC d/b/a Domino’s Pizza; AMS PIZZA, LLC d/b/a Domino’s Pizza; LUCKY 13, INC. d/b/a Domino’s Pizza; AC PIZZA, INC. d/b/a Domino’s Pizza; DOMINO’S PIZZA, INC. d/b/a Domino’s Pizza; DOMINO’S PIZZA LLC. d/b/a Domino’s Pizza; DOMINO’S PIZZA FRANCHISING LLC d/b/a Domino’s Pizza; and ROBERT COOKSTON Defendants. -------------------------------------------------------X Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 2 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 3 of 52 T.Troy 3 Plaintiffs MARCELO DE LOS SANTOS, SANDRO MAYORAL-CLIMICO, and AARON CRUZ AGUACATITLA, individually and on behalf of others similarly situated (collectively the “Plaintiffs”), by and through their attorney, Troy Law, PLLC, hereby bring this Complaint against Defendants HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza, COOKSTON ENTERPRISES, INC. d/b/a Domino’s Pizza; MUMBUH STYLE PIZZA, INC. d/b/a Domino’s Pizza; SESTWON PIZZA, LLC d/b/a Domino’s Pizza; 117 MINEOLA AVE., LLC d/b/a Domino’s Pizza; 1872A BELLMORE AVE., LLC d/b/a Domino’s Pizza; 1017 JERICHO TPKE LLC d/b/a Domino’s Pizza; 3489 RIVERHEAD PIZZA, LLC d/b/a Domino’s Pizza; 3469 MASTIC PIZZA, LLC d/b/a Domino’s Pizza; 3683 WASHINGTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza; 3456 HAMILTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza; 3342 NEW WINDSOR PIZZA, LLC d/b/a Domino’s Pizza; 3361 MONROE PIZZA, LLC d/b/a Domino’s Pizza; 3352 MOUNT KISCO PIZZA, LLC d/b/a Domino’s Pizza; 3441 OSSINING PIZZA, LLC d/b/a Domino’s Pizza; 3488 CORTLANDT MANOR PIZZA, LLC d/b/a Domino’s Pizza; 3616 WEST VILLAGE PIZZA, LLC d/b/a Domino’s Pizza; 3694 LOWER EAST SIDE PIZZA, LLC d/b/a Domino’s Pizza; 3551 YONKERS PIZZA, LLC d/b/a Domino’s Pizza; TEAM STAMFORD, LLC d/b/a Domino’s Pizza; TEAM EAST HARTFORD, LLC d/b/a Domino’s Pizza; ROLLING IN THE DOUGH, LLC d/b/a Domino’s Pizza; CUSTOMERS FIRST OF CONNECTICUT, LLC d/b/a Domino’s Pizza; AAR, LLC d/b/a Domino’s Pizza; MIRC, LLC d/b/a Domino’s Pizza; AMS PIZZA, LLC d/b/a Domino’s Pizza; LUCKY 13, INC. d/b/a Domino’s Pizza; AC PIZZA, INC. d/b/a Domino’s Pizza; DOMINO’S PIZZA, INC. d/b/a Domino’s Pizza; DOMINO’S PIZZA LLC. d/b/a Domino’s Pizza; DOMINO’S PIZZA FRANCHISING LLC d/b/a Domino’s Pizza; and ROBERT COOKSTON (collectively the “Defendants”) and allege as follows: Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 3 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 4 of 52 T.Troy 4 INTRODUCTION 1. This action is brought by Plaintiffs, on behalf of themselves as well as other similarly situated employees, against Defendants for alleged violations of the Federal Labor Standards Act, (“FLSA”) 29 U.S.C. § 201 et seq. and of the New York Labor Law (NYLL), arising from Defendants’ various willful and unlawful employment policies, patterns and/or practices. 2. Plaintiffs allege pursuant to the FLSA, that they are entitled to recover from the Defendants: (1) unpaid wage from shaved time records, (2) unpaid minimum wage compensation, (3) unpaid overtime compensation, (4) the full portion of the tips illegally retained by Defendants, including “delivery fee” that many Domino’s Pizza customers believe are intended in full for Domino’s Pizza deliverymen, (5) uniform maintenance costs, (6) liquidated damages, (7) prejudgment and post-judgment interest; and/or (7) attorneys’ fees and costs. 3. Plaintiffs further allege pursuant to New York Labor Law § 650 et seq. and 12 New York Codes, Rules and Regulations §§ 146 (“NYCRR”) that they are entitled to recover from the Defendants: (1) unpaid wage from shaved time records, (2) unpaid minimum wage compensation, (3) unpaid overtime compensation, (4) the full portion of the tips illegally retained by Defendants, including “delivery fee” that many Domino’s Pizza customers believe are intended in full for Domino’s Pizza deliverymen, (5) uniform maintenance costs, (6) up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure to provide a Time of Hire Notice detailing rates of pay and payday, (7) up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure to provide a paystub that accurately and truthfully lists employee’s hours along with the name, employer’s name, employer’s address and Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 4 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page of 52 T.Troy 5 telephone number, employee’s rate or rates of pay, any deductions made from employee’s wages, any allowances claimed as part of the minimum wage, and the employee’s gross and net wages for each pay day, (8) liquidated damages equal to the sum of unpaid minimum wage, unpaid “spread of hours” premium, unpaid overtime in the amount of twenty five percent under NYLL §§190 et seq., §§650 et seq., and one hundred percent after April 9, 2011 under NY Wage Theft Prevention Act, (9) 9% simple prejudgment interest provided by NYLL, (10) post-judgment interest, and (11) attorney’s fees and costs. 4. Plaintiffs further allege that Defendants breached implied contract by failing to reimburse Plaintiffs for expenses paid for the purchase, repair, utilization and maintenance of delivery bicycles/ electric bicycles and the purchase, utilization and maintenance of others requisite tools of the trade. JURISDICTION AND VENUE 5. This Court has original federal question jurisdiction over this controversy under 29 U.S.C. §216(b), 28 U.S.C. § 1331, and has supplemental jurisdiction over the New York Labor Law claims pursuant to 28 U.S.C. § 1367(a). 6. Venue is proper in the Southern District of New York pursuant to 28 U.S.C. §§ 1391(b) and (c), because Defendants conduct business in this District, and the acts and omissions giving rise to the claims herein alleged took place in this District. THE PARTIES PLAINTIFFS 7. Plaintiff MARCELO DE LOS SANTOS (“DE LOS SANTOS”) was employed by HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza located at 227 West 40th Street, New York, NY Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 5 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 6 of 52 T.Troy 6 10018 as a deliveryman from on or about December 29, 2008 to February 26, 2016. 8. Plaintiff SANDRO MAYORAL-CLINICO (“MAYORAL-CLINICO”) is employed by HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza located at 227 West 40th Street, New York, NY 10018 as a deliveryman from 2009 to the present day. 9. AARON CRUZ AGUACATITLA (“CRUZ AGUACATITLA”) was employed by HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza located at 227 West 40th Street, New York, NY 10018 as a deliveryman from on or about March 15, 2013 to December 1, 2013. DEFENDANTS Franchisor Defendants 10. Defendant DOMINO’S PIZZA, INC. d/b/a Domino’s Pizza, is a domestic business corporation organized under the laws of the State of Delaware with a principal address at 30 Frank Lloyd Wright Drive, Ann Arbor, MI 48105. 11. Defendant DOMINO’S PIZZA, LLC. d/b/a Domino’s Pizza, is a foreign business corporation organized under the laws of the State of Delaware with a registered office at 111 Eighth Avenue, New York, NY 10011. 12. Defendant DOMINO’S PIZZA FRANCHISING, LLC. d/b/a Domino’s Pizza, is a foreign business corporation organized under the laws of the State of Delaware with a registered office at 111 Eighth Avenue, New York, NY 10011. Corporate Defendants owned and operated by ROBERT COOKSTON 13. Defendant HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza, is a domestic business corporation organized under the laws of the State of New York with a principal address at 227 West 40th Street, New York, NY 10018. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 6 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 7 of 52 T.Troy 7 14. Defendant COOKSTON ENTERPRISES, INC. d/b/a Domino’s Pizza, is a domestic business corporation organized under the laws of the State of New York with a principal address at 170 West 23rd Street, New York, NY 10011. 15. Defendant MUMBUH STYLE PIZZA, INC. d/b/a Domino’s Pizza, is a domestic business corporation organized under the laws of the State of New York with a principal address at 943 1st Avenue, New York, New York 10022. 16. Defendant SESTWON PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 935 Front Street, Uniondale, New York 11553. 17. Defendant 117 MINEOLA AVE., LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 117 Mineola Avenue, Roslyn Heights, New York 11577. 18. Defendant 1872A BELLMORE AVE., LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 1872-A Bellmore Avenue, Bellmore, New York 11710. 19. Defendant 1017 JERICHO TPKE LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 1017 Jericho Turnpike, New Hyde Park, New York 11040. 20. Defendant 3489 RIVERHEAD PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 158 Old Country Road, Riverhead, New York 11901. 21. Defendant 3469 MASTIC PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 7 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 8 of 52 T.Troy 8 1265 Montauk Highway, Mastic, New York 11950. 22. Defendant 3683 WASHINGTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 736 West 181st Street, New York, New York 10033. 23. Defendant 3456 HAMILTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 3624 Broadway, New York, New York 10031. 24. Defendant 3342 NEW WINDSOR PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 420 Windsor Highway, New Windsor, New York 12553. 25. Defendant 3361 MONROE PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 711 NY-17M, Monroe, New York 10950. 26. Defendant 3352 MOUNT KISCO PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 130 North Bedford Road, Mt. Kisco, New York 10549. 27. Defendant 3441 OSSINING PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 189 South Highland Ave, Ossining, New York 10562. 28. Defendant 3488 CORTLANDT MANOR PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 2050 East Main Street, Cortlandt Manor, New York 10567. 29. Defendant 3616 WEST VILLAGE PIZZA, LLC d/b/a Domino’s Pizza, is a domestic Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 8 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 9 of 52 T.Troy 9 limited liability company organized under the laws of the State of New York with a principal address at 16 West 8th Street, New York, New York 10011. 30. Defendant 3694 LOWER EAST SIDE PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 205 Allen Street, New York, New York 10002. 31. Defendant 3551 YONKERS PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of New York with a principal address at 132 Tuckahoe Road, Yonkers, New York 10710. 32. Defendant TEAM STAMFORD, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Connecticut with a principal address at 116 West Broad Street, Stamford, Connecticut 06902. 33. Defendant TEAM EAST HARTFORD, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Connecticut with a principal address at 775 Silver Lane, East Hartford, Connecticut 06118. 34. Defendant ROLLING IN THE DOUGH, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Connecticut with a principal address at 100 Prospect Street, S410, Stamford, Connecticut 06902. 35. Defendant CUSTOMERS FIRST OF CONNECTICUT, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Connecticut with a principal address at 142 Post Road, Cos Cob, Connecticut 06870. 36. Defendant AAR, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Idaho with a principal address at 75 Sterling Drive, Bellevue, Idaho 83313. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 9 of 51Case 1:16-cv-06274-AJN t 59-2 Filed 10/ 7/16 Page 10 of 52 T.Troy 10 37. Defendant MIRC, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Connecticut with a principal address at 641 Main Street, Meriden, Connecticut 06450. 38. Defendant AMS PIZZA, LLC d/b/a Domino’s Pizza, is a domestic limited liability company organized under the laws of the State of Connecticut with a principal address at 83 Wall Street, Norwalk, Connecticut 06850. 39. Defendant LUCKY 13, INC. d/b/a Domino’s Pizza, is a domestic business corporation organized under the laws of the State of Connecticut with a principal address at 301 Main Avenue, Norwalk, Connecticut 06851. 40. Defendant AC PIZZA, INC. d/b/a Domino’s Pizza, is a domestic business corporation organized under the laws of the State of Connecticut with a principal address at 946 Hope Street, Stamford, Connecticut 06907. 41. At all relevant times, COOKSTON ENTERPRISES, INC. d/b/a Domino’s Pizza, MUMBUH STYLE PIZZA, INC. d/b/a Domino’s Pizza, HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza, SESTWON PIZZA, LLC d/b/a Domino’s Pizza, 117 MINEOLA AVE., LLC d/b/a Domino’s Pizza, 1872A BELLMORE AVE., LLC d/b/a Domino’s Pizza, 1017 JERICHO TPKE LLC d/b/a Domino’s Pizza, 3489 RIVERHEAD PIZZA, LLC d/b/a Domino’s Pizza, 3469 MASTIC PIZZA, LLC d/b/a Domino’s Pizza, 3683 WASHINGTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza, 3456 HAMILTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza, 3342 NEW WINDSOR PIZZA, LLC d/b/a Domino’s Pizza, 3361 MONROE PIZZA, LLC d/b/a Domino’s Pizza, 3352 MOUNT KISCO PIZZA, LLC d/b/a Domino’s Pizza, 3441 OSSINING PIZZA, LLC d/b/a Domino’s Pizza, 3488 CORTLANDT MANOR PIZZA, LLC d/b/a Domino’s Pizza, 3616 WEST VILLAGE PIZZA, LLC d/b/a Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 10 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 11 of 52 T.Troy 11 Domino’s Pizza, 3694 LOWER EAST SIDE PIZZA, LLC d/b/a Domino’s Pizza, 3551 YONKERS PIZZA, LLC d/b/a Domino’s Pizza, TEAM STAMFORD, LLC d/b/a Domino’s Pizza, TEAM EAST HARTFORD, LLC d/b/a Domino’s Pizza, ROLLING IN THE DOUGH, LLC d/b/a Domino’s Pizza, CUSTOMERS FIRST OF CONNECTICUT, LLC d/b/a Domino’s Pizza, AAR, LLC d/b/a Domino’s Pizza, MIRC, LLC d/b/a Domino’s Pizza, AMS PIZZA, LLC d/b/a Domino’s Pizza, LUCKY 13, INC. d/b/a Domino’s Pizza, AC PIZZA, INC. d/b/a Domino’s Pizza are all owned and operated by ROBERT COOKSTON. 42. Corporate Defendants owned/ operated by ROBERT COOKSTON that do business as Domino’s Pizza is an enterprise engaged in interstate commerce that has gross sales in excess of Five Hundred Thousand Dollars ($500,000) per year. Upon information and belief, Corporate Defendants owned/operated by ROBERT COOKSTON produces, purchases and handles goods moved in interstate commerce. 43. At all relevant times herein, Domino’s Pizza owned and operated by ROBERT COOKSTON was, and continues to be, a single and joint employer and has had a high degree of interrelated and unified operation, and share common management, centralized control of labor relations, common ownership, common control, common website, common business purposes and interrelated business goals. 44. Domino’s Pizza owned by ROBERT COOKSTON had the power to reassign and did reassign Domino’s Pizza employees like RIAD KUCHER among the Domino’s Pizza stores. 45. In October 2013, the New York Attorney General launched an investigation into possible state and federal labor violations at 3683 WASHINGTON HEIGHTS PIZZA, LLC d/b/a Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 11 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 12 of 52 T.Troy 12 Domino’s Pizza, at 736 West 181st Street, New York, New York 10033. 46. In December 2013, twenty five (25) deliverymen were fired for participating in a national march to demand a fifteen dollar ($15) hourly wage from Domino’s. Owner/ Operator Defendants 47. The Individual Defendant is an officer, director, manager and/or majority shareholder or owner of the Corporate Defendants HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza, is individually responsible for unpaid wages under the New York Business Corporation Law. 48. Owner/ Operator Defendant ROBERT COOKSTON, the Chief Executive Officer of each of the Domino’s Pizza Corporate Defendants COOKSTON ENTERPRISES, INC. d/b/a Domino’s Pizza, MUMBUH STYLE PIZZA, INC. d/b/a Domino’s Pizza, HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza, SESTWON PIZZA, LLC d/b/a Domino’s Pizza, 117 MINEOLA AVE., LLC d/b/a Domino’s Pizza, 1872A BELLMORE AVE., LLC d/b/a Domino’s Pizza, 1017 JERICHO TPKE LLC d/b/a Domino’s Pizza, 3489 RIVERHEAD PIZZA, LLC d/b/a Domino’s Pizza, 3469 MASTIC PIZZA, LLC d/b/a Domino’s Pizza, 3683 WASHINGTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza, 3456 HAMILTON HEIGHTS PIZZA, LLC d/b/a Domino’s Pizza, 3342 NEW WINDSOR PIZZA, LLC d/b/a Domino’s Pizza, 3361 MONROE PIZZA, LLC d/b/a Domino’s Pizza, 3352 MOUNT KISCO PIZZA, LLC d/b/a Domino’s Pizza, 3441 OSSINING PIZZA, LLC d/b/a Domino’s Pizza, 3488 CORTLANDT MANOR PIZZA, LLC d/b/a Domino’s Pizza, 3616 WEST VILLAGE PIZZA, LLC d/b/a Domino’s Pizza, 3694 LOWER EAST SIDE PIZZA, LLC d/b/a Domino’s Pizza, 3551 YONKERS PIZZA, LLC d/b/a Domino’s Pizza, TEAM STAMFORD, LLC d/b/a Domino’s Pizza, TEAM EAST HARTFORD, LLC d/b/a Domino’s Pizza, ROLLING IN THE DOUGH, LLC d/b/a Domino’s Pizza, CUSTOMERS Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 12 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 13 of 52 T.Troy 13 FIRST OF CONNECTICUT, LLC d/b/a Domino’s Pizza, AAR, LLC d/b/a Domino’s Pizza, MIRC, LLC d/b/a Domino’s Pizza, AMS PIZZA, LLC d/b/a Domino’s Pizza, LUCKY 13, INC. d/b/a Domino’s Pizza, AC PIZZA, INC. d/b/a Domino’s Pizza (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment of employees, and (4) maintained employee records. STATEMENT OF FACTS Franchisor Corporate Defendants DOMINO’S PIZZA, INC. d/b/a Domino’s Pizza; DOMINO’S PIZZA LLC. d/b/a Domino’s Pizza and DOMINO’S PIZZA FRANCHISING LLC are Joint Employers with Cookston Corporate Defendants under the FLSA and NYLL 49. At all relevant times, Franchisor Corporate Defendants DOMINO’S PIZZA, INC. d/b/a Domino’s Pizza; DOMINO’S PIZZA LLC. d/b/a Domino’s Pizza and DOMINO’S PIZZA FRANCHISING LLC has set the policies and procedures that must be followed by franchisees and their employees. 50. Such policies include the setting of a mandatory flat “delivery fee” charged to Domino’s Pizza customers at each Domino’s Pizza restaurant which is, as advertised in the legal section of Domino’s Pizza website but never elsewhere for COOKSTON Corporate Defendants, not shared with the deliverymen, the use of the PULSE point-of-sale system to maintain clock-in clock-out records and to issue paychecks, the establishment of a mandatory uniform policy for all Domino’s Pizza employees, including deliverymen, who Domino’s Pizza refer to as “delivery drivers”. 51. Upon information and belief, Domino’s Pizza uniform proprietary PULSE point-of-sale system allows for managers to shave time from Domino’s Pizza employee clock-in, clock- Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 13 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 14 of 52 T.Troy 14 out records, to allow for managers to pay Domino’s Pizza deliverymen at the delivery subminimum wage even when they worked more than twenty percent (20%) or two hours of their workday in non-tipped work, and when tips that rightfully belong to them are retained by their employers in the form of a “delivery fee” charged to customers. 52. In May 2016, New York Attorney General Eric T. Schneiderman filed a lawsuit against Franchisor Corporate Defendants DOMINO’S PIZZA, INC., DOMINO’S PIZZA, LLC and DOMINO’S PIZZA FRANCHISING LLC as joint employers with franchisee Defendants due to their knowing promotion of the use of the PULSE point-of-sale system “even though Domino’s knew for years that PULSE under-calculated gross wages. Domino’s typically made multiple updates to PULSE each year, but decided not to fix the flaws that caused underpayments to workers, deeming it a low priority” (See Exhibit 06). 53. As alleged in the Complaint filed by the New York Attorney General, Franchisor Defendants is considered a joint employer under the FLSA and NYLL because it has control, or authority to control employees in certain key ways: a. Directing franchisees to discipline and/or fire specific employees; b. Directing staffing or scheduling requirements for franchisee stores, including store hours; c. Imposing exacting requirements for attire, appearance, grooming and conduct of franchisee-owned store employee, including restrictions on diameter of earrings, color of undershirts, and permissible tattoos; d. Enforcing those standards through an intensive inspection regime, in which one Domino’s official told franchisee employees, “I’m the boss,” Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 14 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 1 of 52 T.Troy 15 e. Pushing an anti-union policy upon its franchisees, including sending Domino’s head of human resources to thwart a union campaign at a franchisee store; and f. Requiring a franchisee purchasing stores from Domino’s as a condition of sale, to largely keep the prior staff. 54. Domino’s Pizza’s inspection regime includes control of the ingredient supply chain, food preparation, and payroll record creation and maintenance. 55. This control of the ingredient supply chain, food preparation and payroll record maintenance is directly related to how Plaintiff deliverymen are assigned various side work by their franchisee managers to meet Domino’s Pizza’s requirements. 56. The records showed that 78% of the franchisees listed instances of subminimum wages, and 86% of the franchisees listed instances of low overtime rates (See Exhibit 06). 57. The Attorney General had worked with Domino’s Pizza for over three (3) years to attempt to ensure that employees are paid at the minimum wage for each hour worked. 58. In 2014, twenty three (23) Domino’s Pizza restaurants settled with the New York State Attorney General in the amount of $448,000 in restitution, including nonpayment of wages. 59. In 2015, twenty nine (29) Domino’s Pizza restaurants settled with the New York state Attorney General in the amount of $970,000 in restitution, including minimum wage, overtime compensation violations. 60. Domino’s Pizza Corporate Defendants operated by ROBERT COOKSTON have been named in at least three (3) federal class actions alleging that they failed to pay their delivery drivers according to FLSA and NYLL: a. Alim et al v Cookston et al. 10-cv-870(MRK) b. Carderras v 3441 Ossining Pizza, LLC et al. 15-cv-4633(NSR)(LMS) Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 15 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 16 of 52 T.Troy 16 c. Munoz et al v. Sestwon Pizza LLC et al. 15-cv-6833(JFB)(AKT). 61. As work by Domino’s Pizza franchisee employees is integral to business of Domino’s Pizza Franchisor Corporate Defendants, District Court Judge James C. Francis permitted the Plaintiffs in Cano v. DPNY, Inc. 287 F.R.D. 251 (S.D.N.Y. 2012) to proceed in a wage-and- hour action against the Franchisor Defendants as joint employers, rejecting Domino’s Franchisor Corporate Defendants’ arguments that they cannot be held liable as joint employers under the FLSA/ NYLL. DOMINO’S PIZZA’s UNIFORM MAINTENANCE POLICY 62. DOMINO’S PIZZA’s focus on branding and uniformity of its franchisees is reflected in the careful consistency of the physical appearance of Domino’s Pizza locations, pizza selections, and uniformed employees. 63. The copyrighted “Domino’s Pizza” logo is on both the apron, the cap, and the T-shirt and long-sleeved shirt worn by all personnel at the restaurant. 64. Pursuant to company policy, Domino’s Pizza requires all Domino’s Pizza deliverymen to wear a distinctive Domino’s Pizza uniform. The Domino’s Pizza uniform consists of a Domino’s Pizza cap (black cap with Domino’s Pizza logo on top, centered), and either a polo T-shirt (blue T-shirt with Domino’s logo on the left, towards the top) or a long-sleeved shirt (black polo shirt with Domino’s logo on the left, towards the top). 65. Domino’s Pizza further required all Domino’s Pizza deliverymen to wear black slacks at all times. 66. Nevertheless, Domino’s Pizza has company policy of requiring employees to wear clean uniform to work each day. Upon information and belief, this policy is motivated by Domino’s Pizza’s marketing strategy in promoting the Domino’s Pizza brand and to impress Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 16 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 17 of 52 T.Troy 17 rather than disgust customers, and by its interest in maintaining sanitary conditions throughout its food preparation and service operations. 67. Upon information and belief, Domino’s Pizza’s practice is to provide full-time Domino’s Pizza deliverymen, including Plaintiffs, with only two (2) sets of Domino’s Pizza uniform when they began working for Domino’s Pizza. 68. As a result, Domino’s Pizza’s deliverymen like Plaintiffs are required to launder their own uniforms in their own time without pay for Domino’s Pizza’s benefit. DOMINO’S PIZZA’s DELIVERY FEE POLICY 69. At all relevant times, DOMINO’S PIZZA, INC., DOMINO’S PIZZA LLC, and DOMINO’S PIZZA FRANCHISING LLC. allow Domino’s Pizza franchisees to set mandatory delivery fees for their Domino’s Pizza restaurant location(s). 70. The mandatory delivery fee is a flat fee which is added to each customer order and which is paid for by Domino’s Pizza customers. 71. Once set by a Domino’s Pizza restaurant location, the mandatory delivery fee is always the same offline and online. 72. Domino’s Pizza customers who order from Domino’s Pizza are often misled into believing that the “delivery fee” are intended for the “deliverymen.” 73. As indicated on the legal section of the website of each Domino’s Pizza store location, no portion of the delivery fee is shared with the deliverymen, which Domino’s Pizza terms “delivery drivers” (See Exhibit 7 Legal Section of Domino’s Pizza’s store website.). 74. Domino’s Pizza customers who order by phone were not told at all that the “delivery fee” charged was not shared with the deliverymen. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 17 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 18 of 52 T.Troy 18 75. Domino’s Pizza customers who order through Seamless or GrubHub are not given notice that Domino’s “delivery fee” was not shared with Domino’s deliverymen (See Exhibit 8 and 9—typical Seamless/ GrubHub page and order page for Domino’s Pizza store). 76. As a result, many Domino’s Pizza customers do not tip Domino’s Pizza deliverymen and others tip Domino’s Pizza deliverymen less, as they believe Domino’s Pizza deliverymen are already tipped with the delivery fee. 77. This egregious and widespread practice of gratuity garnishment can be evidenced from both the legal section of each Domino’s Pizza’s store, which states that “Any Delivery Charge is not a tip paid to your driver. Please reward your driver for awesomeness” and the failure of Domino’s Pizza to clearly indicate that the delivery fee is not shared with Domino’s Pizza deliverymen on its individual Seamless or GrubHub websites or via phone. 78. While the delivery fee at each restaurant varied, it typically ranged from one dollar ($1) to five dollars ($5). 79. From 2009 to 2013, HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza charged Domino’s Pizza customers a one dollar and ninety nine cents ($1.99) delivery fee. 80. From 2014 to the present day, HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza charged Domino’s Pizza customers a two dollar and ninety nine cents ($2.99) delivery fee. Plaintiff MARCELO DE LOS SANTOS 81. Plaintiff MARCELO DE LOS SANTOS was employed from 2008 to on or about February 26, 2016 by HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza located at 227 West 40th Street, New York, NY 10018. 82. At all relevant times, Defendants knowingly and willfully failed to pay Plaintiff MARCELO DE LOS SANTOS his lawfully overtime compensation of one and one half times (1.5x) his Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 18 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 19 of 52 T.Troy 19 regular rate of pay for all hours worked over forty (40) in a given workweek. 83. While employed by Defendants, Plaintiff MARCELO DE LOS SANTOS was not exempt under federal and state laws requiring employers to pay employees overtime. 84. From 2008 to 2012, Plaintiff MARCELO DE LOS SANTOS worked from: a. 10:00 to 24:00 (00:00 the next day) for fourteen (14) hours for six (6) days and eighty four (84) hours a week, with one (1) day Off, not fixed. 85. However, from 2008 to 2012, HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza utilized a point of sale system known as “PULSE” which allowed for the shaving of hours worked and under-calculation of wages. 86. As a result, Plaintiff MARCELO DE LOS SANTOS was only paid for around forty (40) hours of his work each week. 87. From 2013 to 2016, Plaintiff MARCELO DE LOS SANTOS worked from: b. 10:00 to 17:00 for seven (7) hours for six (6) days and forty two (42) hours a week, with one (1) day Off, not fixed. 88. From 2013 to 2016, MARCELO DE LOS SANTOS was not paid for all hours that he worked. 89. From 2008 to on or about July 19, 2009, Plaintiff MARCELO DE LOS SANTOS was paid four dollars and sixty cents ($4.60) an hour. 90. From on or about July 20, 2009 to January 10, 2010, Plaintiff MARCELO DE LOS SANTOS was paid four dollar and sixty five cents ($4.65) an hour. 91. From on or about January 11, 2010 to August 1, 2010, Plaintiff MARCELO DE LOS SANTOS was paid four dollars and ninety cents ($4.90) an hour. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 19 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 20 of 52 T.Troy 20 92. From August 2, 2010 to January 2, 2011, Plaintiff MARCELO DE LOS SANTOS was paid two (2) rates: four dollars and sixty cents ($4.60) and seven dollars and twenty five cents ($7.25) an hour. 93. From September 6, 2010 to February 20, 2011, Plaintiff MARCELO DE LOS SANTOS was paid two (2) rates: five dollars ($5.00) and seven dollars and twenty five cents ($7.25) an hour. 94. From October 11, 2010 to February 20, 2011, Plaintiff MARCELO DE LOS SANTOS was paid two (2) rates: five dollars sixty five cents ($5.65) and seven dollars and twenty five cents ($7.25) an hour. 95. From February 20, 2011 to the end of 2013, Plaintiff MARCELO DE LOS SANTOS was paid five dollars sixty five cents ($5.65) an hour. 96. In 2014, Plaintiff MARCELO DE LOS SANTOS was paid seven dollars seventy five cents ($7.75) an hour. 97. In 2015, Plaintiff MARCELO DE LOS SANTOS was paid eight dollars seventy five cents ($8.75) an hour. 98. In 2016, Plaintiff MARCELO DE LOS SANTOS was paid ten dollars fifty cents ($10.50) an hour. 99. Defendants never informed Plaintiff that they were taking tip credit towards the minimum wage. 100. Further, at all relevant times, in addition to his duties as a deliveryman, Plaintiff MARCELO DE LOS SANTOS was regularly assigned to make pizza (which requires putting the pizza dough in the pizza holder, adding cheese on top of the pizza; as well as other ingredients on top of the pizza dough; baking the pizza); stacking the sauce; stacking Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 20 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 21 of 52 T.Troy 21 sodas from storage boxes; unpacking soda from the storage boxes; cleaning the store windows; arranging the tables; brooming the floor; cleaning the store floor; throwing out the garbage, among other side work (See Exhibit 10 for a gallery of selected side work). 101. As a result, Plaintiff MARCELO DE LOS SANTOS non-tipped work exceeds two hours or twenty percent (20%) of the Plaintiff’s workday. 102. In fact, it typically took around two fifth (2/5) of Plaintiff’s workday. 103. Furthermore, Defendants have misappropriated Plaintiff’s tips by failing to hand over the entirety of delivery fee meant for Domino’s Pizza deliverymen. 104. Instead, Defendants have profited from the delivery fee charged to Domino’s Pizza customers while Plaintiff MARCELO DE LOS SANTOS received no or less tips as a result of Domino’s Pizza’s delivery fee charged. 105. Plaintiff MARCELO DE LOS SANTOS delivers around forty eight (48) orders each workday on “busy” days and twenty (20) delivery orders each workday on “non-busy” days. 106. On average, Plaintiff MARCELO DE LOS SANTOS delivers around thirty five (35) delivery orders each day. 107. As a result, on average, from 2008 to 2013, Plaintiff would hand over an average of seventy dollars ($70) per day in “delivery fee” to Domino’s Pizza, while retaining nothing for himself. 108. As a result, on average, from 2014 to February 26, 2016, Plaintiff would hand over an average of one hundred and five dollars ($105) per day in “delivery fee” to Domino’s Pizza, while retaining nothing for himself. 109. On a typical workday, around seven (7) Domino’s Pizza customers do not pay Plaintiff MARCELO DE LOS SANTOS any tips. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 21 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 22 of 52 T.Troy 22 110. The remaining Domino’s Pizza customers pay Plaintiff MARCELO DE LOS SANTOS tips on top of the delivery fee. 111. Believing that the delivery fee is meant in full or at least in part for MARCELO DE LOS SANTOS, Domino’s Pizza customers pay Plaintiff MARCELO DE LOS SANTOS less tips. 112. No portion of the “delivery fee” is shared with the Domino’s Pizza deliverymen, including Plaintiff MARCELO DE LOS SANTOS. 113. Defendants required Plaintiff MARCELO DE LOS SANTOS to use and maintain a delivery bicycle to benefit Defendants’ business. Defendants also required Plaintiff to maintain the vehicle. Defendants did not compensate for the purchase, repair, maintenance, utilization of the bicycle according to state and federal labor laws. 114. Plaintiff MARCELO DE LOS SANTOS purchased a bicycle at a cost of approximately six hundred dollars ($600) upon commencement of his employment with Defendants for the sole purpose of delivering Domino’s Pizza orders for Defendants’ benefit. 115. Defendants have failed to pay Plaintiff MARCELO DE LOS SANTOS for any of the bicycle’s required maintenance and/or repair costs. 116. Defendants have not reimbursed Plaintiff MARCELO DE LOS SANTOS for the maintenance/repair costs of his bicycle. 117. Defendants failed to keep full and accurate records of Plaintiff MARCELO DE LOS SANTOS’s hours and wages. 118. Upon information and belief, Defendants failed to keep full and accurate records in order to mitigate liability for their wage violations. Defendants never furnished any notice of their use of tip credit. 119. At all relevant times Plaintiff MARCELO DE LOS SANTOS was provided with only Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 22 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 23 of 52 T.Troy 23 two (2) set of Domino’s Pizza uniforms and was required to launder and maintain his uniform throughout the workweek in order to wear a clean set of uniform to work each workday (See Exhibit 11 for Domino’s Pizza Uniform—Domino’s Pizza T-Shirt and long- sleeved shirt). 120. Defendants never reimbursed Plaintiff MARCELO DE LOS SANTOS for his uniform maintenance costs. 121. Defendants never provided Plaintiff MARCELO DE LOS SANTOS with a full and accurate written notice, in English and in Spanish (Plaintiff MARCELO DE LOS SANTOS’s primary language), of his rate of pay, employer’s regular pay day, and such other information as required by NYLL §195(1). Plaintiff SANDRO MAYORAL-CLIMICO 122. Plaintiff SANDRO MAYORAL-CLIMICO was employed from 2009 to on or about the present day by HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza located at 227 West 40th Street, New York, NY 10018. 123. At all relevant times, Defendants knowingly and willfully failed to pay Plaintiff SANDRO MAYORAL-CLIMICO his lawfully overtime compensation of one and one half times (1.5x) his regular rate of pay for all hours worked over forty (40) in a given workweek. 124. While employed by Defendants, Plaintiff MARCELO DE LOS SANTOS was not exempt under federal and state laws requiring employers to pay employees overtime. 125. From 2009 to 2010, Plaintiff SANDRO MAYORAL-CLIMICO worked from: c. 18:00 to 25:00 for seven (7) hours for five (5) days for thirty five (35) hours a week, with two (2) day Off, not fixed. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 23 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 24 of 52 T.Troy 24 126. From 2010 to the present day, Plaintiff SANDRO MAYORAL-CLIMICO worked from: d. 18:00 to 03:30 (the next day) to close store for ten and a half (10.5) hours each day for three (3) days and thirty one and a half (31.5) hours per week, and e. 18:00 to 22:30 for one (1) day for four and a half (4.5) hours. 127. From 2010 to the present day, Plaintiff SANDRO MAYORAL-CLIMICO worked around thirty six (36) hours each week. 128. However, on some weeks, there are days when his work shift extended more than twelve (12) hours, like Christmas Eve or Superbowl. 129. Plaintiff SANDRO MAYORAL-CLIMICO was not given any break, whether fixed or non fixed. 130. When once Plaintiff SANDRO MAYORAL-CLIMICO was found eating, the Domino’s Pizza manager said he cannot eat because he is paid for working, not eating. 131. However, from 2009 to 2012, HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza utilized a point of sale system known as “PULSE” which allowed for the shaving of hours worked and under-calculation of wages. 132. As a result, Plaintiff SANDRO MAYORAL-CLIMICO was not paid for all hours worked. 133. From 2009 to 2013, Plaintiff SANDRO MAYORAL-CLIMICO was paid between four dollars and sixty cents ($4.60) and five dollars and sixty five cents ($5.65) an hour. 134. In 2014, Plaintiff SANDRO MAYORAL-CLIMICO was paid eight dollars ($8.00) an hour. 135. In 2015, Plaintiff SANDRO MAYORAL-CLIMICO was paid eight dollars seventy five cents ($8.75) an hour. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 24 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 2 of 52 T.Troy 25 136. In 2016, Plaintiff SANDRO MAYORAL-CLIMICO was paid ten dollars fifty cents ($10.50) an hour. 137. Defendants never informed Plaintiff that they were taking tip credit towards the minimum wage. 138. Further, at all relevant times, in addition to his duties as a deliveryman, Plaintiff SANDRO MAYORAL-CLIMICO was regularly assigned to make pizza (which requires putting the pizza dough in the pizza holder, adding cheese on top of the pizza; as well as other ingredients on top of the pizza dough; baking the pizza); stacking the sauce; stacking sodas from storage boxes; unpacking soda from the storage boxes; cleaning the store windows; arranging the tables; brooming the floor; cleaning the store floor; throwing out the garbage, among other side work (See Exhibit 10 for a gallery of selected side work). 139. From 2010 to the present day, SANDRO MAYORAL-CLIMICO also closed the store. 140. As a result, Plaintiff SANDRO MAYORAL-CLIMICO non-tipped work exceeds two hours or twenty percent (20%) of the Plaintiff’s workday. 141. In fact, it typically took around three fifth (3/5) of Plaintiff’s workday. 142. Furthermore, Defendants have misappropriated Plaintiff’s tips by failing to hand over the entirety of delivery fee meant for Domino’s Pizza deliverymen. 143. Instead, Defendants have profited from the delivery fee charged to Domino’s Pizza customers while Plaintiff SANDRO MAYORAL-CLIMICO received no or less tips as a result of Domino’s Pizza’s delivery fee charged. 144. Plaintiff SANDRO MAYORAL-CLIMICO delivers around forty eight (48) orders each workday on “busy” days and twenty (20) delivery orders each workday on “non-busy” days. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 25 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 26 of 52 T.Troy 26 145. On average, Plaintiff SANDRO MAYORAL-CLIMICO delivers around thirty five (35) delivery orders each day. 146. As a result, on average, from 2008 to 2013, Plaintiff would hand over an average of seventy dollars ($70) per day in “delivery fee” to Domino’s Pizza, while retaining nothing for himself. 147. As a result, on average, from 2014 to February 26, 2016, Plaintiff would hand over an average of one hundred and five dollars ($105) per day in “delivery fee” to Domino’s Pizza, while retaining nothing for himself. 148. On a typical workday, around seven (7) Domino’s Pizza customers do not pay Plaintiff SANDRO MAYORAL-CLIMICO any tips. 149. The remaining Domino’s Pizza customers pay Plaintiff SANDRO MAYORAL- CLIMICO tips on top of the delivery fee. 150. Believing that the delivery fee is meant in full or at least in part for SANDRO MAYORAL-CLIMICO, Domino’s Pizza customers pay Plaintiff SANDRO MAYORAL- CLIMICO less tips. 151. No portion of the “delivery fee” is shared with the Domino’s Pizza deliverymen, including Plaintiff SANDRO MAYORAL-CLIMICO. 152. Defendants required Plaintiff SANDRO MAYORAL-CLIMICO to use and maintain a delivery bicycle to benefit Defendants’ business. Defendants also required Plaintiff to maintain the vehicle. Defendants did not compensate for the purchase, repair, maintenance, utilization of the bicycle according to state and federal labor laws. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 26 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 27 of 52 T.Troy 27 153. Plaintiff SANDRO MAYORAL-CLIMICO purchased eleven (11) bicycles at eighty dollars ($80) each and one electric bicycle at one thousand three hundred dollars ($1300) for the purpose of delivering Domino’s Pizza orders for Defendants’ benefit. 154. Plaintiff SANDRO MAYORAL-CLIMICO also purchased his own boots and gloves to operate the floor cleaning machine to clean the floor for Domino’s Pizza as the Manager refused to provide either boots or gloves. 155. Defendants have failed to pay Plaintiff SANDRO MAYORAL-CLIMICO for any of the bicycle’s required maintenance and/or repair costs. 156. Defendants have not reimbursed Plaintiff SANDRO MAYORAL-CLIMICO for the maintenance/repair costs of his bicycle. 157. Defendants failed to keep full and accurate records of Plaintiff SANDRO MAYORAL- CLIMICO’s hours and wages. 158. Upon information and belief, Defendants failed to keep full and accurate records in order to mitigate liability for their wage violations. Defendants never furnished any notice of their use of tip credit. 159. At all relevant times Plaintiff SANDRO MAYORAL-CLIMICO was provided with only two (2) set of Domino’s Pizza uniforms and was required to launder and maintain his uniform throughout the workweek in order to wear a clean set of uniform to work each workday (See Exhibit 11 for Domino’s Pizza Uniform—Domino’s Pizza T-Shirt and long- sleeved shirt). 160. Defendants never reimbursed Plaintiff SANDRO MAYORAL-CLIMICO for his uniform maintenance costs. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 27 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 28 of 52 T.Troy 28 161. Defendants never provided Plaintiff SANDRO MAYORAL-CLIMICO with a full and accurate written notice, in English and in Spanish (Plaintiff SANDRO MAYORAL- CLIMICO’s primary language), of his rate of pay, employer’s regular pay day, and such other information as required by NYLL §195(1). Plaintiff AARON CRUZ AGUACATITLA 162. Plaintiff AARON CRUZ AGUACATITLA was employed from on or about March 15, 2013 to December 1, 2013 by HAT TRICK PIZZA, INC. d/b/a Domino’s Pizza located at 227 West 40th Street, New York, NY 10018. 163. At all relevant times, Defendants knowingly and willfully failed to pay Plaintiff AARON CRUZ AGUACATITLA his lawfully overtime compensation of one and one half times (1.5x) his regular rate of pay for all hours worked over forty (40) in a given workweek. 164. While employed by Defendants, Plaintiff AARON CRUZ AGUACATITLA was not exempt under federal and state laws requiring employers to pay employees overtime. 165. At all relevant times, Plaintiff AARON CRUZ AGUACATITLA worked from: a. 17:00 to 24:00 (00:00 the next day) for seven (7) hours for six (6) days for forty two (42) hours a week, with two (2) day Off, not fixed. 166. At all relevant times, Plaintiff AARON CRUZ AGUACATITLA was paid at two rates: five dollars and sixty five cents ($5.65) and seven dollars and twenty five cents ($7.25). 167. Defendants never informed Plaintiff that they were taking tip credit towards the minimum wage. 168. Further, at all relevant times, in addition to his duties as a deliveryman, Plaintiff AARON CRUZ AGUACATITLA was regularly assigned to make pizza (which requires Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 28 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 29 of 52 T.Troy 29 putting the pizza dough in the pizza holder, adding cheese on top of the pizza; as well as other ingredients on top of the pizza dough; baking the pizza); stacking the sauce; stacking sodas from storage boxes; unpacking soda from the storage boxes; cleaning the store windows; arranging the tables; brooming the floor; cleaning the store floor; throwing out the garbage, among other side work (See Exhibit 10 for a gallery of selected side work). 169. As a result, Plaintiff AARON CRUZ AGUACATITLA non-tipped work exceeds two hours or twenty percent (20%) of the Plaintiff’s workday. 170. In fact, it typically took around two fifth (2/5) of Plaintiff’s workday. 171. Furthermore, Defendants have misappropriated Plaintiff’s tips by failing to hand over the entirety of delivery fee meant for Domino’s Pizza deliverymen. 172. Instead, Defendants have profited from the delivery fee charged to Domino’s Pizza customers while Plaintiff AARON CRUZ AGUACATITLA received no or less tips as a result of Domino’s Pizza’s delivery fee charged. 173. Plaintiff AARON CRUZ AGUACATITLA delivers around forty eight (48) orders each workday on “busy” days and twenty (20) delivery orders each workday on “non-busy” days. 174. On average, Plaintiff AARON CRUZ AGUACATITLA delivers around thirty five (35) delivery orders each day. 175. As a result, on average, Plaintiff would hand over an average of seventy dollars ($70) per day in “delivery fee” to Domino’s Pizza, while retaining nothing for himself. 176. On a typical workday, around seven (7) Domino’s Pizza customers do not pay Plaintiff AARON CRUZ AGUACATITLA any tips. 177. The remaining Domino’s Pizza customers pay Plaintiff AARON CRUZ AGUACATITLA tips on top of the delivery fee. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 29 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 30 of 52 T.Troy 30 178. Believing that the delivery fee is meant in full or at least in part AARON CRUZ AGUACATITLA, Domino’s Pizza customers pay Plaintiff AARON CRUZ AGUACATITLA less tips. 179. No portion of the “delivery fee” is shared with the Domino’s Pizza deliverymen, including Plaintiff AARON CRUZ AGUACATITLA. 180. Defendants required Plaintiff AARON CRUZ AGUACATITLA to use and maintain a delivery bicycle to benefit Defendants’ business. Defendants also required Plaintiff to maintain the vehicle. Defendants did not compensate for the purchase, repair, maintenance, utilization of the bicycle according to state and federal labor laws. 181. Plaintiff AARON CRUZ AGUACATITLA purchased one electric bicycle at one thousand three hundred dollars ($1300) for the purpose of delivering Domino’s Pizza orders for Defendants’ benefit. 182. Plaintiff AARON CRUZ AGUACATITLA also purchased his own boots and gloves to operate the floor cleaning machine to clean the floor for Domino’s Pizza as the Manager refused to provide either boots or gloves. 183. Defendants have failed to pay Plaintiff AARON CRUZ AGUACATITLA for any of the bicycle’s required maintenance and/or repair costs. 184. Defendants have not reimbursed Plaintiff AARON CRUZ AGUACATITLA for the maintenance/repair costs of his bicycle. 185. Defendants failed to keep full and accurate records of Plaintiff AARON CRUZ AGUACATITLA’s hours and wages. 186. Upon information and belief, Defendants failed to keep full and accurate records in order to mitigate liability for their wage violations. Defendants never furnished any notice of their Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 30 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 31 of 52 T.Troy 31 use of tip credit. 187. At all relevant times Plaintiff AARON CRUZ AGUACATITLA was provided with only two (2) set of Domino’s Pizza uniforms and was required to launder and maintain his uniform throughout the workweek in order to wear a clean set of uniform to work each workday (See Exhibit 11 for Domino’s Pizza Uniform—Domino’s Pizza T-Shirt and long- sleeved shirt). 188. Defendants never reimbursed Plaintiff AARON CRUZ AGUACATITLA for his uniform maintenance costs. 189. Defendants never provided Plaintiff AARON CRUZ AGUACATITLA with a full and accurate written notice, in English and in Spanish (Plaintiff AARON CRUZ AGUACATITLA’s primary language), of his rate of pay, employer’s regular pay day, and such other information as required by NYLL §195(1). COLLECTIVE ACTION ALLEGATIONS 190. Plaintiffs bring this action individually and as class representative individually and on behalf of all other and former non-exempt deliverymen who have been or were employed by the Cookston Defendants for up to the last three (3) years, through entry of judgment in this case (the “Collective Action Period”) and whom were subject to illegal tip retention in the form of “delivery fee” which many Domino’s Pizza customers misconstrue as tips meant from the deliverymen, minimum wage and/or overtime compensation shortfall as a result of the illegal tip deduction and/or illegal time shaving practices (the “Collective Action Members”). 191. Corporate Defendants making up the Domino’s Pizza enterprise knowingly and willfully operated under a common policy of deducting meal credit from their employees’ wages Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 31 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 32 of 52 T.Troy 32 without accounting for the actual costs of the food provided in the form of records. CLASS ACTION ALLEGATIONS 192. Plaintiffs bring their NYLL claims pursuant to Federal Rules of Civil Procedure (“F. R. C. P.”) Rule 23, on behalf of all non-exempt deliverymen employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (the “Class Period”). 193. Plaintiffs brings their CGS claims pursuant to Federal Rules of Civil Procedure (“F. R. C. P.”) Rule 23, on behalf of all non-exempt deliverymen employed by Defendants on or after the date that is two years before the filing of the Complaint in this case as defined herein (the “Class Period”). 194. All said persons, including Plaintiffs, are referred to herein as the “Class.” 195. The Class members are readily ascertainable. The number and identity of the Class members are determinable from the records of Defendants, including the weekly paystubs issued to Domino’s Pizza workers. 196. The number of delivery orders made, the amount of “delivery fee” charged, the hours assigned and worked, the positions held, and the rate of pay for each Class Member is also determinable from Defendants’ records. For purpose of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under said F.R.C.P 23. Numerosity 197. The proposed Class is so numerous that joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parities and the Court. Although the precise number of such persons is unknown, and the facts on which the calculation of the Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 32 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 33 of 52 T.Troy 33 number is presently within the sole control of the Defendants, upon information and belief, there are more than one thousand (1000) members of the class. Commonality 198. There are questions of law and fact common to the Class which predominate over any questions affecting only individual class members, including: a. Whether Defendant employed Plaintiffs and the Class within the meaning of the New York Labor Law and/or Connecticut General Statute; b. Whether Plaintiffs and Class members are subject to time shaving, under the PULSE system; c. Whether as a result of the time shaving, Plaintiffs and Class members are owed unpaid wages; d. Whether Plaintiffs and Class members are paid at least the minimum wage for each hour worked under the New York Labor Law and/or Connecticut General Statute; e. Whether Plaintiffs and Class members are entitled to and paid overtime at at least one and one half times the minimum wage under the New York Labor Law and/or Connecticut General Statute; f. Whether Defendants maintained a policy, pattern and/or practice of failing to pay Plaintiffs and the Rule 23 Class spread-of-hours pay as required by the New York Labor Law and/or Connecticut General Statute; g. Whether Plaintiffs and tipped Class members were subject to illegal tip retention of all delivery fee of each delivery order; h. Whether Plaintiffs and Class members were effectively required by Domino’s Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 33 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 34 of 52 T.Troy 34 Pizza to clean their uniforms or cause them to be cleaned; i. Whether Domino’s Pizza paid putative class members any amount to reimburse them for their time expended and/or costs incurred in the cleaning and maintaining their Domino’s Pizza uniforms; j. Whether Domino’s Pizza paid putative class members Uniform Maintenance Pay in the amounts set forth currently in 12 N.Y.C.R.R. §146-1.7 and formerly in 12 N.Y.C.R.R. §137-1.8 k. Whether Defendants maintained policy, pattern and/or practice of failing to provide requisite statutory meal periods; l. Whether Defendants provided a Time of Hire Notice detailing rates of pay and payday at the start of Plaintiffs and the Rule 23 Class’s start of employment and/or or timely thereafter; and m. At what common rate, or rates subject to common method of calculation was and is Defendants required to pay the Class members for their work. Typicality 199. Plaintiffs’ claims are typical of those claims which could be alleged by any member of the Class, and the relief sought is typical of the relief that would be sought by each member of the Class in separate actions. All the Class members were subject to the same corporate practices of Defendants, as alleged herein, of failing to pay minimum wage, overtime compensation, unlawful kickbacks and illegal tip retention. 200. Defendants’ corporate wide policies and practices affected all Class members similarly, and Defendants benefited from the same type of unfair and/ or wrongful acts as to each Class member. Plaintiffs and other Class members sustained similar losses, injuries and Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 34 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 3 of 52 T.Troy 35 damages arising from the same unlawful policies, practices and procedures. Adequacy 201. Plaintiffs are able to fairly and adequately protect the interests of the Class and have no interests antagonistic to the Class. Plaintiffs are represented by attorneys who are experienced and competent representing Plaintiffs in both class action and wage and hour employment litigation cases. Superiority 202. A class action is superior to other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation where individual Class members lack the financial resources to vigorously prosecute a lawsuit against corporate defendants. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of efforts and expenses that numerous individual actions engender. Because the losses, injuries, and damages suffered by each of the individual Class members are small in the sense pertinent to a class action analysis, the expenses and burden of individual litigation would make it extremely difficult or impossible for the individual Class members to redress the wrongs done to them. Further, important public interests will be served by addressing the matter as a class action. The adjudication of individual litigation claims would result in a great expenditure of Court and public resources; however, treating the claims as a class action would result in a significant saving of these costs. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent and/or varying adjudications with respect to the individual members of the Class, establishing incompatible standards of conduct for Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 35 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 36 of 52 T.Troy 36 Defendants and resulting in the impairment of class members’ rights and the disposition of their interests through actions to which they were not parties. The issues in this action can be decided by means of common, class-wide proof. In addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently manage this action as a class action. 203. Upon information and belief, Defendants and other employers throughout the state violate the New York Labor Law. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims because doing so can harm their employment, future employment, and future efforts to secure employment. Class actions provide class members who are not named in the complaint a degree of anonymity which allows for the vindication of their rights while eliminating or reducing these risks. STATEMENT OF CLAIMS COUNT I. [Violation of 29 U.S.C. §203(m) and (t)—Illegal Retention of Tips Brought on behalf of Plaintiffs and the FLSA Collective] 204. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 205. A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. 206. The FLSA prohibits any arrangement between the employer and tipped employee whereby any part of the tip received becomes the property of the employer. 207. Retaining the entirety of “delivery fee” due to Domino’s Pizza deliverymen to unjustly enrich the Owner/ Operator Defendants or using portion of the tips to pay non-tipped Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 36 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 37 of 52 T.Troy 37 employees is prohibited under the FLSA. 208. The FLSA also provides that where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer must pay the employee the tip, less that percentage. 209. Employers are prohibited from unjustly enriching themselves by charging their employees a gratuities service fee charge which exceed the costs of converting credit card gratuities into cash. COUNT II. [Illegal Tip Retention, NYLL §146-2.18 and NYLL §146-2.20 Brought on behalf of Plaintiffs and the Rule 23 Class] 210. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 211. Section 196-d of the New York State Labor Law prohibits employers from demanding, accepting, or retaining, directly or indirectly, any part of an employee’s gratuity or any charge purported to be a gratuity. 212. A charge purported to be a gratuity, including charges advertised to be “delivery fee” to customers, must be distributed in full as gratuities to the service employees or food service workers who provided the service. 213. §146-2.18 provides that there shall be a rebuttable presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any charge for “service” or “food service,” is a charge purported to be a gratuity. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 37 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 38 of 52 T.Troy 38 214. NYLL §146-2.20 provides that when tips are charged on credit cards, the employer must return to the employee the full amount of the tip charged on credit card minus the pro-rated portion of the tip taken by the credit card company. 215. Employers are prohibited from unjustly enriching themselves by charging their employees a gratuities service fee charge which exceed the costs of converting credit card gratuities into cash. COUNT III. [Unlawful Deductions, NYLL 193 & 196(d) Brought on behalf of Plaintiffs and the Rule 23 Class] 216. Plaintiffs repeat and re-allege all allegations in all preceding paragraphs as if fully set forth herein. 217. Throughout the period covered by the applicable statute of limitations, Defendants knowingly retained portions of gratuities received by Plaintiffs in violation of the NYLL and the supporting regulations of the New York State Department of Labor. 218. Due to Defendants’ willful violations of the NYLL, Plaintiffs and the members of the Class are entitled to recover from Defendants the amounts of any unlawful deductions, liquidated damages as provided for by the NYLL, reasonable attorneys’ fees, costs, and pre- judgment and post-judgment interest. COUNT IV. [Violations of the Fair Labor Standards Act—Minimum/ Unpaid Wage Brought on behalf of the Plaintiff and the FLSA Collective] 219. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 220. At all relevant times, Defendants had a policy and practice of refusing to pay the statutory Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 38 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 39 of 52 T.Troy 39 minimum wage to Plaintiffs, and the similarly situated collective action members, for some or all of the hours they worked. 221. At all relevant times, Defendants shaved time off of Plaintiffs’ time records. 222. The FLSA provides that any employer who violates the provisions of 29 U.S.C. §206 shall be liable to the employees affected in the amount of their unpaid minimum compensation, and in an additional equal amount as liquidated damages. 223. Defendants knowingly and willfully disregarded the provisions of the FLSA as evidenced by failing to compensate Plaintiffs and Collective Class Members at the statutory minimum wage when they knew or should have known such was due and that failing to do so would financially injure Plaintiff and Collective Action members. COUNT V. [Violation of New York Labor Law—Minimum Wage Brought on behalf of Plaintiff and Rule 23 Class] 224. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 225. At all relevant times, Plaintiffs were employed by Defendants within the meaning of New York Labor Law §§2 and 651. 226. At all relevant times, Defendants had a policy and practice of refusing to pay the statutory minimum wage to Plaintiffs, and the collective action members, for some or all of the hours they worked. 227. At all relevant times, Defendants shaved time off of Plaintiffs’ time records. 228. Defendants knowingly and willfully violated Plaintiffs’ and similarly situated Class Members’ rights by failing to pay them minimum wages in the lawful amount for hours worked. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 39 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 40 of 52 T.Troy 40 229. An employer who fails to pay the minimum wage shall be liable, in addition to the amount of any underpayments, for liquidated damages equal to twenty five percent (25%) of the shortfall under NYLL §§190 et seq., §§650 et seq., and one hundred percent (100%) after April 9, 2011 under NY Wage Theft Prevention Act, and interest. COUNT VI. Violation of Connecticut General Statutes—Minimum Wage Brought on behalf of Plaintiffs and the Rule 23 Class] 230. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 231. At all relevant times, plaintiffs were employed by Defendants within the meaning of CTGS §31-58. 232. Under the CTGS §31-58 Defendants were required to pay Plaintiffs and the Rule 23 Class members the provided statutory minimum wage. 233. Defendant’ failure to pay members of the Rule 23 Class minimum wage violated the CTGS. 234. Defendants’ failure to pay Plaintiffs and the Rule 23 Class was not in good faith. 235. Due to defendants’ willful violations of the CTGS, Plaintiffs and Rule 23 Class Members are entitled to recover their unpaid minimum wages, reasonable attorneys’ fees and costs of the action, liquidated damages, and pre-judgment and post-judgment interest. COUNT VII. [Violations of the Fair Labor Standards Act—Overtime Wage Brought on behalf of the Plaintiff and the FLSA Collective] 236. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 40 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 41 of 52 T.Troy 41 237. The FLSA provides that no employer engaged in commerce shall employ a covered employee for a work week longer than forty (40) hours unless such employee receives compensation for employment in excess of forty (40) hours at a rate not less than one and one-half times the regular rate at which he or she is employed, or one and one-half times the minimum wage, whichever is greater. 29 USC §207(a). 238. The FLSA provides that any employer who violates the provisions of 29 U.S.C. §207 shall be liable to the employees affected in the amount of their unpaid overtime compensation, and in an additional equal amount as liquidated damages. 29 USC §216(b). 239. Defendants’ failure to pay Plaintiffs and the FLSA Collective their overtime pay violated the FLSA. 240. At all relevant times, Defendants had, and continue to have, a policy of practice of refusing to pay overtime compensation at the statutory rate of time and a half to Plaintiffs and Collective Action Members for all hours worked in excess of forty (40) hours per workweek, which violated and continues to violate the FLSA, 29 U.S.C. §§201, et seq., including 29 U.S.C. §§207(a)(1) and 215(a). 241. The FLSA and supporting regulations required employers to notify employees of employment law requires employers to notify employment law requirements. 29 C.F.R. §516.4. 242. Defendants willfully failed to notify Plaintiffs and FLSA Collective of the requirements of the employment laws in order to facilitate their exploitation of Plaintiffs’ and FLSA Collectives’ labor. 243. Defendants knowingly and willfully disregarded the provisions of the FLSA as evidenced by their failure to compensate Plaintiff and Collective Class Members the statutory overtime Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 41 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 42 of 52 T.Troy 42 rate of time and one half for all hours worked in excess of forty (40) per week when they knew or should have known such was due and that failing to do so would financially injure Plaintiffs and Collective Action members. COUNT VIII. [Violation of New York Labor Law—Overtime Pay Brought on behalf of Plaintiff and Rule 23 Class] 244. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 245. An employer who fails to pay the minimum wage shall be liable, in addition to the amount of any underpayments, for liquidated damages equal to twenty five percent (25%) before April 9, 2011 and one hundred percent (100%) under NY Wage Theft Prevention Act, and interest. 246. At all relevant times, Defendants had a policy and practice of refusing to pay the overtime compensation to Plaintiffs at one and one half times the hourly rate the Plaintiff and the class are entitled to. 247. Defendant’ failure to pay Plaintiffs their overtime pay violated the NYLL. 248. Defendants’ failure to pay Plaintiffs were not in good faith. COUNT IX. [Violation of Connecticut General Statute—Overtime Pay Brought on behalf of Plaintiffs and Rule 23 Class] 249. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 250. At all relevant times, Defendants had a policy and practice of refusing to pay the overtime compensation at one-and-one half times the applicable minimum wage to the Rule Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 42 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 43 of 52 T.Troy 43 23 Class members. 251. Defendants’ failure to pay Rule 23 Class members was not in good faith. 252. By failing to pay Plaintiff and the class, the Plaintiffs and Class Members are entitled to their full unpaid overtime pay, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees and costs and disbursement of the action pursuant to C.G.S.§§ 31-76c et seq. COUNT X. [Violation of New York Labor Law—Record-Keeping Requirements Brought on behalf of Plaintiff and Rule 23 Class] 253. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 254. Defendants did not maintain, establish and preserve Plaintiffs’ weekly payroll records for a period of not less than six years, as required by NYRR § 146-2.1. 255. As a result of Defendants’ unlawful conduct, Plaintiffs have sustained damages including loss of earning, in an amount to be established at trial, liquidated damages, prejudgment interest, costs and attorneys’ fee, pursuant to the state law. 256. Upon information and belief, Defendants failed to maintain adequate and accurate written records of actual hours worked and true wages earned by Plaintiff in order to facilitate their exploitation of Plaintiffs’ labor. 257. Defendants’ failure to maintain adequate and accurate written records of actual hours worked and true wages earned by Plaintiffs were not in good faith. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 43 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 44 of 52 T.Troy 44 COUNT XI. [Violation of New York Labor Law—Time of Hire Wage Notice Requirement Brought on behalf of Plaintiff and Rule 23 Class] 258. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 259. The NYLL and supporting regulations require employers to provide written notice of the rate or rates of pay and the basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as a part of minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer; the name of the employer; any “doing business as” names used by the employer; the physical address of employer’s main office or principal place of business, and a mailing address if different; the telephone number of the employer. NYLL §195-1(a). 260. Defendants intentionally failed to provide notice to employees in violation of New York Labor Law § 195, which requires all employers to provide written notice in the employee’s primary language about the terms and conditions of employment related to rate of pay, regular pay cycle and rate of overtime on their or her first day of employment. 261. Defendants not only did not provide notice to each employee at Time of Hire, but failed to provide notice to Plaintiff even after the fact. 262. Due to Defendants’ violations of New York Labor Law, Plaintiffs are entitled to recover from Defendants, jointly and severally, $50 for each workday that the violation occurred or continued to occur, up to $5,000, together with costs and attorneys’ fees pursuant to New York Labor Law. N.Y. Lab. Law §198(1-b). Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 44 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 4 of 52 T.Troy 45 COUNT XII. [Violation of New York Labor Law—New York Pay Stub Requirement Brought on behalf of Plaintiff and Rule 23 Class] 263. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 264. The NYLL and supporting regulations require employers to provide detailed paystub information to employees every payday. NYLL §195-1(d). 265. Defendants have failed to make a good faith effort to comply with the New York Labor Law with respect to compensation of each Plaintiff, and did not provide full and accurate paystub on or after each Plaintiffs’ payday. 266. Due to Defendants’ violations of New York Labor Law, each Plaintiffs are entitled to recover from Defendants, jointly and severally, $250 for each workday of the violation, up to $5,000 for each Plaintiff together with costs and attorneys’ fees pursuant to New York Labor Law. N.Y. Lab. Law §198(1-d). COUNT XIII. [Violation of Connecticut General Statute—Record-Keeping Requirements Brought on behalf of the Rule 23 Class] 267. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set in the Complaint. 268. Defendants did not maintain, establish and preserve Domino’s Pizza deliverymen weekly payroll records for a period of not less than three years, as required by CGS § 31-66. 269. As a result of Defendants’ unlawful conduct, Domino’s Pizza deliverymen have sustained damages including loss of earning, in an amount to be established at trial, liquidated damages, prejudgment interest, costs and attorneys’ fee, pursuant to the state law. 270. Upon information and belief, Defendants failed to maintain adequate and accurate written Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 45 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 46 of 52 T.Troy 46 records of actual hours worked and true wages earned by employees in order to facilitate their exploitation of Domino’s Pizza employees’ labor. 271. Defendants’ failure to maintain adequate and accurate written records of actual hours worked and true wages earned by Domino’s Pizza employees was not in good faith. COUNT XIV. [Violation of Connecticut General Statute—Paystub Requirements Brought on behalf of the Rule 23 Class] 272. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set herein. 273. Defendants did not furnish records of hours worked, wage earned and deduction to Domino’s Pizza deliverymen with each payment, as required by CGS § 31-13a. 274. As a result of Defendants’ unlawful conduct, Domino’s Pizza deliverymen have sustained damages including loss of earning, in an amount to be established at trial, liquidated damages, prejudgment interest, costs and attorneys’ fee, pursuant to the state law. 275. Upon information and belief, Defendants failed to maintain adequate and accurate written records of actual hours worked and true wages earned by Domino’s Pizza deliverymen in order to facilitate their exploitation of Domino’s Pizza deliverymen’s labor. 276. Defendants’ failure to maintain adequate and accurate written records of actual hours worked and true wages earned by Plaintiffs were not in good faith. COUNT XV. [Breach of Implied Contract for Reimbursement of all Costs and Expenses of Bicycles, including Depreciation, Insurance, Maintenance and Repairs Brought on behalf of Plaintiffs and the Rule 23 Class] 277. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 46 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 47 of 52 T.Troy 47 278. Throughout the relevant period, Defendants required their delivery personnel to bear all of the “out-of-pocket” costs associated with their bicycles, including the purchase, maintenance, and repair of the delivery bicycles. 279. Based on their personal experience and available information, Plaintiffs can document actual “out-of-pocket” vehicle related expenses of their delivery bicycles. 280. The conduct of Defendants, and the course of Defendant’s conduct between the parties, evidenced an intent for Plaintiffs to maintain the delivery bicycles in working condition. 281. Plaintiffs purchased, maintained, and repaired the bicycles at their own expense. 282. Plaintiffs performed deliveries for the sole benefit of the Defendants. 283. Defendants neither explicitly nor implicitly requested Plaintiffs to cease the maintenance of their bicycles. 284. As a result of the afore-alleged conduct of the parties, an implied contract arose between them the terms of which are that Plaintiffs would incur the expenses for bicycle purchases and maintenance, in exchange for compensation from Defendants for such expenses. 285. Defendants never compensated Plaintiffs for any expenses incurred from the purchase and maintenance of the bicycles. As a result, Defendants breached the implied contract by failing and refusing to pay Plaintiffs a reasonable sum under the afore-alleged facts. 286. Defendants owe Plaintiffs their overdue costs of bicycles and their repair and maintenance. COUNT XVI. [Civil damages for fraudulent filing of IRS returns. Violations of 26 USC §7434 Brought on behalf of the Plaintiff] 287. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 47 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 48 of 52 T.Troy 48 288. 26 USC §7434 provides that if any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such a return. 289. Due to Defendants’ violations of 26 USC §7434, Plaintiffs are entitled to recover from Defendants, jointly and severally: (1) any actual damages sustained by the plaintiffs as a proximate result of the filing of the fraudulent information return (including any costs attributable to resolving deficiencies asserted as a result of such a filing), (2) the cost of the action, and (3) in the court’s discretion, reasonable attorneys’ fees. COUNT XVII. [Civil damages for Deceptive Acts and Practices. Violations of New York General Business Law §349 Brought on behalf of the Plaintiff] 290. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein. 291. NY General Business Law §349 provides that if any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such a return. 292. Due to Defendants’ violations of NY GBS Law §349, Plaintiffs are entitled to recover from Defendants, jointly and severally, their actual damages or fifty dollars ($50), whichever is greater, or both such actions. 293. Plaintiffs demand the right to examine, in person or by attorney, the minutes of the proceedings of the shareholders and records of shareholders of Defendant Corporation to recover wages owed as employees of the corporation. Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 48 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 49 of 52 T.Troy 49 PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves, the FLSA Collective Plaintiffs and Rule 23 Class, respectfully request that this Court enter a judgment providing the following relief: (a) Authorizing Plaintiffs at the earliest possible time to give notice of this collective action, or that the Court issue such notice, to all persons who are presently, or have up through the extent allowable under the statute of limitations and including the date of issuance of court- supervised notice, been employed by Defendants as non-exempt employees. Such notice shall inform them that the civil notice has been filed, of the nature of the action, of their right to join this lawsuit if they believe they were denied premium overtime wages; (b) Certification of this case as a collective action pursuant to FLSA; (c) Issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated members of the FLSA opt-in class, apprising them of the pendency of this action, and permitting them to assert timely FLSA claims and state claims in this action by filing individual Consent to Sue forms pursuant to 29 U.S.C. § 216(b), and appointing Plaintiff and their counsel to represent the Collective Action Members; (d) A declaratory judgment that the practices complained of herein are unlawful under FLSA, NYLL and CGS; (e) An injunction against Corporate Defendants, its officers, agents, successors, employees, representatives and any and all persons acting in concert with them as provided by law, from engaging in each of unlawful practices and policies set forth herein; (f) An award of unpaid minimum wage and overtime wages due under FLSA and New York Labor Law due Plaintiffs and the Collective Action members plus compensatory and Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 49 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 50 of 52 T.Troy 50 liquidated damages in the amount of twenty five percent (25%) prior to April 9, 2011 and one hundred percent (100%) thereafter under NY Wage Theft Prevention Act; (g) An award of unpaid minimum wage and overtime wages due under FLSA and Connecticut General Statute due Collective Action members plus compensatory and liquidated damages; (h) An award of liquidated and/or punitive damages as a result of Defendants’ knowing and willful failure to pay wages at least the hourly minimum wage, overtime compensation pursuant to 29 U.S.C. §216; (i) Up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure to provide a Time of Hire Notice detailing rates of pay and payday; (j) Up to five thousand dollars ($5,000) per Plaintiff for Defendants’ failure to provide a paystub that lists employee’s name, employer’s name, employer’s address and telephone number, employee’s rate or rates of pay, any deductions made from employee’s wages, any allowances claimed as part of the minimum wage, and the employee’s gross and net wages for each pay day; (k) Reimbursement of reasonable out-of-pocket costs sustained by Plaintiffs and similarly situated deliverymen in the purchase, maintenance and repair of their delivery electric bicycle in direct service of Defendants; (l) An award of liquidated and/ or punitive damages as a result of Defendants’ willful failure to overtime compensation, and “spread of hours” premium pursuant to New York Labor Law; (m) An award of costs and expenses of this action together with reasonable attorneys’ and expert fees pursuant to 29 U.S.C. §216(b) and NYLL §§198 and 663; Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 50 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 51 of 52 T.Troy 51 (n) The cost and disbursements of this action; (o) An award of prejudgment and post-judgment fees; (p) Providing that if any amounts remain unpaid upon the expiration of ninety days following the issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent, as required by NYLL §198(4); and (q) Such other and further legal and equitable relief as this Court deems necessary, just, and proper. Dated: Flushing, New York August 8, 2016 TROY LAW, PLLC Attorney for the Plaintiff, proposed FLSA Collective and Proposed Class Plaintiffs /s/ John Troy John Troy (JT0481) 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Tel: (718) 762-1324 Email: johntroy@troypllc.com Zhang v. Sunshine USA, Inc. et al - 15-cv-05031 Case 1:16-cv-06274 Document 1 Filed 08/08/16 Page 51 of 51Case 1:16-cv-06274-AJN Document 59-2 Filed 10/17/16 Page 52 of 52 EXHIBIT C Case 1:16-cv-06274-AJN Document 59-3 Filed 10/17/16 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Marcelo De Los Santos, Sandro Mayoral- Climico, mid Aaron Cruz Aguacatitla, individually and on behalf of others similarly situated, Plaintiffs, -against- Hat Trick Pizza, Inc., ct al., Defendants. DOCKET NO: 16-CV-06274(AJN) VERIFICATION OF ROURT COOKSTON I, Robert Cookston, do hereby declare and say: 1. I have personal knowledge of all of the facts set forth herein. 2. I reside in Bellevue, Idaho. 3. 1 am the owner of Team Stamford, LLC, which has its principal place of business at 116 West Broad Street, Stamford, Connecticut. Team Stamford, LL.C. is not authorized to conduct business in New York, and it does not conduct business in New York. Team Stamford, LLC does not have an address or office in New York. Team Stamford, LLC does not pay taxes in New York. Team Stamford, LLC does not have bank accounts in New York. Team Stamford, LLC does not own, use or possess real property in New York. Team Stamford, LLC does not operate a Domino's store in New York, and it does not employ employees in Ncw York. Finally, Team Stamford, LLC does not advertise in New York. Case 1:16-cv-06274-AJN Document 59-3 Filed 10/17/16 Page 2 of 5 4. I am the owner of AAR, LLC, which has its principal place of business at 1523-B Stanley Street, New Britain, Connecticut. AAR. LLC is not authorized to conduct business in New York, and it does not conduct business in New York. AAR, LLC does not have an address or office in New York. AAR, LLC does not pay taxes in New York. AAR, LLC does not have bank accounts in New York. AAR, LLC does not own, use or possess real property in New York. AAR, LLC does not operate a Domino's store in New York, and it does not employ employees in New York. Finally, AAR, LLC does not advertise in New York. 5. t am the owner of Lucky 13, Inc., which has its principal place of business at 301 Main Avenue, Norwalk, Connecticut. Lucky 13, Inc. is not authorized to conduct business in New York, and it does not conduct business in New York. T.ucky 13. Inc. does not have an address or office in New York. Lucky 13, Inc. does not pay taxes in New York. Lucky 13, Inc. does not have bank accounts in New York. Lucky 13, Inc. does not own, use or possess real property in New York. Lucky 13, Inc. does not operate a Domino's store in New York, and it does not employ employees in New York. Finally, Lucky 13, Inc. does not advertise in New York. 6. 1 am the owner of AC Pizza, Inc., which has its principal place of business at 946 Hope Street, Stamford, Connecticut. AC Pizza, Inc. is not authorized to conduct business in New York, and it does not conduct business in New York, AC Pizza, Inc. does not have an address or office in New York. AC Pizza, Inc. does not pay taxes in New York. AC Pizza, Inc. does not have bank accounts in New York. AC Pizza, Inc. does not own, use or possess real property in New York. AC Pizza Inc. does not operate a Domino's store -2- Case 1:16-cv-06274-AJN Document 59-3 Filed 10/17/16 Page 3 of 5 in New York, and it does not employ employees in New York. Finally, AC Pizza, Inc does not advertise in New York. 7. Louis O'Neill is the Director of Operations of Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. and A.C. Pizza, Inc. 8. With respect to Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. and A.C. Pizza, Inc., there is one supervisor that oversees the Connecticut Cookston Defendant stores. The supervisor of the Connecticut Cookston Defendant stores reports to Louis O'Neill. 9. The supervisor for Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. and A.C. Pizza, Inc. does not oversee any of the New York Cookston Defendant stores. 10. Each of the Connecticut Cookston Defendants, Team Stamford, LLC; AAR, I,LC; Lucky 13, Inc. and A.C. Pizza, Inc., has a separate and distinct general manager who oversees all day-to-day operations of each restaurant (including hiring, disciplinary actions, setting employee schedules, reporting payroll and clocking in and out procedures), General managers are assigned to their own stores and do not move between locations. General managers determine, or help to determine, the work schedules at a particular location, including the number of employees necessary for each shift. General managers are responsible for monitoring the staff at each store and execution of their duties. Day-to day-management of the store varies depending on the particular manager, current staffing, and other needs of the store. I do not have day-to- day management over the operations of Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. and A.C. Pizza, Inc. Mr. O'Neill also does not have day-to-day management over the operations of Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. and A.C. Pizza, Inc. -3- Case 1:16-cv-06274-AJN Document 59-3 Filed 10/17/16 Page 4 of 5 11. The delivery personnel employed by the New York Cookston stores do not also work in either Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. or A.C. Pizza, Inc. 12. Additionally, the delivery personnel employed by Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. or A,C. Pizza, Inc. do not also work in any of the New York Cookston stores. 13. The delivery personnel employed by Team Stamford, LLC; AAR, LLC; Lucky 13, Inc. and/or A.C. Pizza, Inc. only make deliveries within Connecticut. The delivery personnel employed by 'learn Stamford, LLC; AAR, LLC; Lucky 13, Inc. and/or A.C. Pizza, Inc. do not make deliveries within the State of New York. VERIFICATION 1, Robert Cookston, declare and verify under penalty of perjury that the foregoing is true 111 h and correct. Executed on this day of October, 2016. Robert Cookston WSACI I VELLP;8792226. I -4- Case 1:16-cv-06274-AJN Document 59-3 Filed 10/17/16 Page 5 of 5