September 05, 2025|Publications
September 5, 2025 | United States District Court for the Southern District of New York | Slip Opinion
Executive Summary
In an unpublished opinion, Magistrate Judge Sarah L. Cave of the Southern District of New York granted in part and denied in part plaintiffs’ motion for conditional certification of a Fair Labor Standards Act (“FLSA”) collective action. Plaintiffs alleged that LaserShip, Inc., which operates nine package-delivery warehouses across New York, misclassified drivers as independent contractors, and failed to pay overtime. Plaintiffs sought certification for all nine warehouses. LaserShip argued that plaintiffs lacked proof of any unlawful company-wide policy. Judge Cave applied the Second Circuit’s “modest plus” standard, and ruled that plaintiffs had shown sufficient similarity only at the Maspeth and Mineola warehouses, but not at the other seven locations.
Relevant Background
Daniel West and Romaine Clarke filed this action in 2021, alleging that LaserShip denied overtime wages in violation of the FLSA and the New York Labor Law. They sought to represent a collective of all subcontractor delivery drivers at LaserShip’s nine New York warehouses. In 2024, Judge Cave issued West v. LaserShip, Inc. (“West I”), holding that plaintiffs had not shown they were similarly situated to drivers across multiple facilities. Although she denied certification, she ordered LaserShip to produce contact information for subcontractor drivers at the Maspeth, Mineola, and Port Chester warehouses.
Following that ruling, LaserShip produced records for over 4,400 drivers. Plaintiffs’ counsel sent email solicitations, which led to eight drivers opting into the case. The court then ordered “Phase II” discovery. The parties conducted document discovery, depositions of both named plaintiffs, five opt-in plaintiffs, and LaserShip’s Rule 30(b)(6) corporate representative.
Armed with this record, plaintiffs filed their Second Collective Motion in October 2024, again seeking certification for all nine New York warehouses. They submitted declarations and deposition excerpts from opt-in plaintiffs who worked at Maspeth and Mineola. LaserShip opposed, arguing that plaintiffs still failed to prove a common unlawful policy extended to drivers at its seven other facilities in Albany, Buffalo, Binghamton, Newburgh, Port Chester, Rochester, and Syracuse.
Decision
Judge Cave reaffirmed the Second Circuit’s two-step process for collective actions. At the first stage, plaintiffs must make a “modest factual showing” that they are similarly situated to others subjected to the same unlawful policy. Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010). Because the parties had already engaged in substantial discovery, the court applied the “modest plus” standard, which allows review of competing evidence while still avoiding factual determinations on the merits.
The court found that plaintiffs satisfied this standard only at LaserShip’s Maspeth and Mineola warehouses. Opt-in drivers testified that they worked more than forty hours per week without overtime, received per-package pay, and faced uniform penalties for tardiness. This testimony established a sufficient factual nexus among drivers at those two facilities.
In contrast, plaintiffs failed to present any evidence from LaserShip’s other seven New York warehouses, despite having contacted thousands of drivers. The court emphasized that this absence of testimony suggested those drivers were not subject to the same terms. As Judge Cave explained, “the logical inference from the fact that drivers from the other six warehouses have chosen not to participate or provide any information to support Plaintiffs’ claims is that those drivers are not subject to the same employment terms and compensation as Plaintiffs”.
To support narrowing the collective, the court cited a line of cases limiting FLSA collectives to facilities where plaintiffs provided concrete evidence of common practices. See Johnson-Cradle v. KPS Affiliates Inc., No. 22 Civ. 1052, 2023 WL 3091675, at *4–5 (S.D.N.Y. Apr. 26, 2023) (limiting collective to Bronx location where plaintiff worked); Hernandez v. NHR Human Resources, LLC, No. 20 Civ. 3019, 2021 WL 2535534, at *11 (S.D.N.Y. June 18, 2021) (limiting certification to Manhattan employees with same job title where there was “no indication” others were subject to the same unlawful policy); Contrera v. Langer, 278 F. Supp. 3d 702, 719 (S.D.N.Y. 2017) (limiting collective to superintendents in specific boroughs); Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 666–67 (S.D.N.Y. 2013) (limiting collective to gas stations in Queens and the Bronx, rejecting statewide scope). These authorities underscore that courts may limit certification where plaintiffs fail to connect their claims across multiple units.
Judge Cave therefore conditionally certified a collective limited to drivers at Maspeth and Mineola. She directed the parties to revise the proposed notice, required LaserShip to post it at those two warehouses, and authorized notice distribution by mail, email, and text. She denied plaintiffs’ request for equitable tolling, noting that outreach to more than 4,400 drivers yielded only eight opt-ins, undermining claims of extraordinary circumstances.
Looking Forward
For franchisors and multi-unit franchisees, this ruling illustrates how collective certification may hinge on unit-specific proof. The court authorized notice only where plaintiffs produced detailed declarations and testimony, leaving out seven of LaserShip’s nine New York warehouses. That outcome demonstrates how defense counsel can use thorough certification discovery to narrow the scope of claims.
Several strategies may be particularly effective in similar cases:
- Emphasizing variations in how different units operate, including differences in management, pay practices, or scheduling requirements.
- Pointing to the absence of opt-ins or supporting testimony from certain locations when plaintiffs attempt to stretch their proposed class too broadly.
- Using targeted depositions and document requests to test whether alleged policies truly extend across multiple units or remain localized.
The “modest plus” standard sets a relatively low threshold for plaintiffs, but this case shows that franchisors and multi-unit franchisees can push back. Careful discovery and evidentiary challenges may not only limit the scope of certification but, in some instances, defeat certification altogether. While the process can feel like a fait accompli, narrowing the class early reduces exposure, protects brand systems, and positions the case for stronger outcomes at later stages.
Thomas O’Connell is a Shareholder at Buchalter APC and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
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