Co-authored by Howard M. Wexler and Robert S. Whitman

Seyfarth Synopsis: Governor Andrew Cuomo has directed the Commissioner of Labor to schedule public hearings to address the possibility of eliminating the tip credit. A tip credit allows an employer to pay less than minimum wage to employees who receive the bulk of their pay in customer tips.

As we say goodbye to 2017, New York employers should also start preparing to say goodbye to minimum wage tip credits.

Governor Andrew Cuomo has directed the Commissioner of Labor to schedule public hearings to address the possibility of eliminating the tip credit. A tip credit allows an employer to pay less than minimum wage to employees who receive the bulk of their pay in customer tips.

As we reported in 2015, the then-Commissioner issued a report questioning the continuation of the minimum wage tip credit. Governor Cuomo appears to be in favor of the elimination of tip credits; he called for the public hearings “to ensure that no workers are more susceptible to exploitation because they rely on tips to survive.” While the Governor has not made any specific proposal, it is likely that, even if the tip credit goes away, employees could still be tipped, and participate in tip pooling/sharing arrangements, but they would have to be paid at least the standard minimum wage that non-tipped employees receive.

As with the minimum wage for all employees across the state, the minimum wage for tipped employees across the state is set to increase on December 31. The Department of Labor has summarized the revisions applicable to the tipped minimum wage for hospitality employers, employers in “miscellaneous industries,” and employers in the “building service industry.” Employers should consult these summaries to determine how much they can deduct for the appropriate minimum wage tip credit as the amount varies based on the industry, job classification, location of the employee and size of the employer.

Book that says JusticeCo-authored by Robert S. Whitman and Howard M. Wexler

Seyfarth Synopsis: A New York federal court denied a motion for conditional certification of a nationwide collective action against Barnes & Noble. The ruling highlights that, even though the burden for “first stage” certification is modest, courts may not approve such motions without evidence that the named plaintiffs are similarly situated to the putative collective action members they wish to represent.


Plaintiffs’ counsel frequently cite the “low” burden required for conditional certification under the FLSA. But a recent decision in the Southern District of New York denying conditional certification highlights that some courts are willing to “do the reading” and not “skip pages,” and will actually review the plaintiffs’ proffered evidence to ensure that there is a factual nexus to bind the pages of the certification motion together.

Chapter 1: The Complaint

In Brown v. Barnes and Noble, Inc., the plaintiffs are former Barnes & Noble, Inc. café managers. They allege that they, and similarly situated others, were misclassified as exempt, and sought unpaid overtime and other pay under the FLSA and the New York Labor Law.

Chapter 2: The Conditional Certification Motion

Two months after filing the complaint, and before conducting any discovery, the plaintiffs moved for conditional certification of their FLSA claim. They argued that, because the café managers had been uniformly classified as exempt, were all reclassified as non-exempt, work under the same job description, and because Barnes & Noble maintains detailed policies, procedures and rules that control how the café managers, regardless of location, performed their work, that all such managers are “similarly situated” to the named plaintiffs.

Chapter 3: The Court’s Decision

Magistrate Judge Katharine H. Parker authored the court’s decision. Before getting to the main plot of this conditional certification story, Judge Parker dispelled three oft-cited theories advanced by plaintiffs to obtain conditional certification:

  1. that a uniform classification of exempt status, standing alone, can satisfy the low threshold for conditional certification;
  2. that the employer’s reclassified of a position from exempt to non-exempt shows that the position was uniformly misclassified previously; and
  3. that a common job description means the position is the same everywhere.

Judge Parker had little trouble untangling the plot on the first point, holding that a uniform classification of exempt status is not sufficient, in and of itself, to establish the commonality required for conditional certification. She was equally unpersuaded on the second point, and held that “there could be many legitimate business reasons for an employer to reclassify employees.” On the third point, Judge Parker reiterated prior decisions holding that “a common job description does not mean that conditional certification is per se warranted in every case.” In this case, she added, the job description “is of little utility…when, under Plaintiffs’ own theory of the case, [it] did not accurately reflect the duties they personally performed.”

In her final pages, Judge Parker held that based on the evidence before her, she could not “infer that Defendant had a de facto policies of requiring all 1,100 café managers to perform non-exempt work based on the personal experiences of the nine people who have joined this suit” and “nor can it infer such a policy from general assertions” and “cookie-cutter declarations.”

Epilogue: What’s Next?

Brown is another reminder that, despite the lenient standard for conditional certification under the FLSA, courts may assess the evidence rather than simply read the “Cliffs Notes” version of the parties’ submissions, and that, where appropriate, they will deny certification if plaintiffs have failed to show that they are similarly situated to others. It remains to be seen whether the plaintiffs will propose a sequel by filing a new motion with additional evidence or simply choose to litigate on behalf of the named plaintiffs alone. This decision—while perhaps not a scintillating beach read for summer—may still become a “best seller” for employers in fending off conditional certification motions.

coins-currency-investment-insurance-128867Co-authored by Robert S. Whitman and Howard M. Wexler

With employers about to ring in 2017, the New York State Department of Labor—with only two days to spare—has finalized regulations to increase the salary threshold for exempt status. The regulations, originally introduced on October 19, 2016, take effect on December 31, 2016.

Employers were hopeful that the State would abandon (or delay) these regulations given the now-enjoined U.S. Department of Labor’s overtime exemption rules that were set to go into effect on December 1, 2016. In response to such concern, however, the State DOL noted, “this rulemaking is not based on, or related to, the federal rulemaking concerning salary thresholds…this rulemaking is required by law and non-discretionary. Its purpose and effect is to maintain the longstanding historical relationship between minimum wage and salary threshold amounts…”

In keeping with the upcoming gradual increase in the State’s minimum wage levels, the new tiered salary thresholds for exempt status across the state will be:

Large Employers (11 or more employees) in New York City

  • $825.00 per week on and after December 31, 2016;
  • $975.00 per week on and after December 31, 2017; and
  • $1,125.00 per week on and after December 31, 2018.

Small Employers (10 or fewer employees) in New York City

  • $787.50 per week on and after December 31, 2016;
  • $900.00 per week on and after December 31, 2017;
  • $1,012.50 per week on and after December 31, 2018; and
  • $1,125.00 per week on and after December 31, 2019.

Employers in Nassau, Suffolk, and Westchester Counties

  • $750.00 per week on and after December 31, 2016;
  • $825.00 per week on and after December 31, 2017;
  • $900.00 per week on and after December 31, 2018;
  • $975.00 per week on and after December 31, 2019;
  • $1,050.00 per week on and after December 31, 2020; and
  • $1,125.00 per week on and after December 31, 2021.

Employers Outside of New York City, Nassau, Suffolk, and Westchester Counties

  • $727.50 per week on and after December 31, 2016;
  • $780.00 per week on and after December 31, 2017;
  • $832.00 per week on and after December 31, 2018;
  • $885.00 per week on and after December 31, 2019; and
  • $937.50 per week on and after December 31, 2020.

In addition to the increased salary levels, the new regulations adjust the amount employers can deduct for employees’ uniforms and claim as a meal and tip credit in line with the gradual increase of the minimum wage toward $15. There is a tiered system for these changes as well depending on the employer’s location.

Seyfarth Synopsis: The New York Court of Appeals recently rejected the narrow view of the Unemployment Insurance Appeal Board and found that substantial evidence did not support a finding that certain yoga instructors were misclassified as independent contractors.

Co-authored by Robert S. Whitman and Howard M. Wexler

As wage and hour “gurus” are aware, the “mantra” of most federal and state agencies these days is a restrictive view of independent contractor status. Accordingly, in a rare yet welcome decision that we hope will yield some good “karma,” the New York Court of Appeals held in Matter of Yoga Vida NYC, Inc. that substantial evidence did not warrant the Appeals Board’s finding certain yoga instructors were misclassified as independent contractors.

In Yoga Vida, a yoga studio employed both staff instructors (who were classified as employees) and non-staff instructors (who were classified as independent contractors). The State’s Unemployment Insurance Appeal Board held that the non-staff instructors were misclassified, applying a strict reading of the employer-employee test under the New York Labor Law.

The Court of Appeals held that substantial evidence did not warrant the Appeals Board’s finding. The Court relied upon the facts that the non-staff instructors:

  • Were paid only if a certain number of students attend their classes (unlike staff instructors, who were paid regardless of whether anyone attends a class);
  • Had no restrictions on where they could teach, and were free to inform Yoga Vida students of classes they teach at other studios so the students can follow them; and
  • Were not required to attend meetings or receive training.

Rejecting the position of the Appeals Board and the dissenting judge, the court held that the above factors outweighed the fact that Yoga Vida:

  • Inquired if the instructors had proper licenses, published the master schedule on its web site, and provided the space for the classes;
  • Generally determined what fee was charged, collected the fee directly from the students, and provided a substitute instructor if the non-staff instructor was unable to teach a class and could not find a substitute; and
  • Received feedback about the instructors from the students.

In reaching this decision, the Court held that, “The requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either.”

Although it is certainly a welcome decision for employers, it is not time to say “Namaste” just yet. The mere fact that a worker is labeled an “independent contractor” and willing to work as such (without receiving minimum wage or an overtime premium) is not enough to remove the worker from the coverage of wage-hour laws. Careful compliance for employers in classifying workers as independent contractors rather than employees remains as important as ever. Om.

Authored by Rob Whitman

Seyfarth Synopsis: Unpaid interns for Hearst magazines have been rebuffed again in their effort to be declared eligible to receive wages under the FLSA and the New York Labor Law.

In an August 24, 2016 ruling, Judge J. Paul Oetken of the Southern District of New York held that six interns, who worked for Marie Claire, Seventeen, Cosmopolitan, Esquire, and Harper’s Bazaar, were not employees as a matter of law and granted summary judgment to Hearst. After reviewing each of their circumstances individually, the court held:

These interns worked at Hearst magazines for academic credit, around academic schedules if they had them, with the understanding that they would be unpaid and were not guaranteed an offer of paid employment at the end of the internships. They learned practical skills and gained the benefit of job references, hands-on training, and exposure to the inner workings of industries in which they had each expressed an interest.

The six named plaintiffs were the only ones remaining after the Second Circuit, in July 2015, denied their bid for class and collective certification. The court in that decision also articulated a new set of factors for determining whether unpaid interns at for-profit companies are “trainees” (who are not entitled to compensation) or “employees” (who must receive minimum wage and overtime premiums).

The Second Circuit’s decision adopted the “primary beneficiary” test to determine internship status—i.e., whether the “tangible and intangible benefits provided to the intern are greater than the intern’s contribution to the employer’s operation.” Applying that test to the Hearst interns, Judge Oetken concluded, “[w]hile [the six plaintiffs’] internships involved varying amounts of rote work and could have been more ideally structured to maximize their educational potential, each Plaintiff benefited in tangible and intangible ways from his or her internship, and some continue to do so today as they seek jobs in fashion and publishing.”

Among the factors he relied on: the relatively brief duration of the internships, typically limited to college semesters or summer breaks; the interns’ opportunities for observation and learning, such as “Cosmo U,” a program in which senior editors spoke about their career paths; and the receipt of or opportunity for academic credit.

Aside from its detailed discussion of the facts of the plaintiffs’ internships, the court’s decision, Wang v. The Hearst Corporation, is notable for two reasons:

  1. It shows the practical impact of a denial of class and collective certification. Although the court addressed the six named plaintiffs’ claims in a single opinion, it was effectively a series of rulings on each intern’s individualized circumstances. As the court noted, some of the factors—such as the receipt of college credit for the internships—weighed differently for the different plaintiffs. But in the end, the result for each of them, given the “totality of the circumstances” in their particular cases, was the same.
  2. The court’s decision applied equally to the plaintiffs’ claims under the FLSA and the NY Labor Law. This issue was left somewhat unsettled after the Second Circuit’s 2015 decision, which noted the similarities in the definitions of “employee” under the two statutes but did not explicitly say that the ruling pertained to both. Judge Oetken, following the earlier lead of a Southern District colleague, held that his ruling decided the claims under federal and NY law.

The Hearst decision is not the first to grant summary judgment under the Second Circuit’s factors. In March 2016, a Southern District Judge found that an intern for the now-late Gawker website was properly treated as such and was not entitled to wages. Despite the positive trend, these cases are highly fact-driven and do not foreclose the possibility that interns will be deemed to be employees, nor should they make for-profit employers complacent about not paying interns. But they signal that, where interns have a bona fide learning experience in coordination with their academic pursuits, they need not be paid as a matter of law.

internship blog image 8.jpgCo-authored by Robert Whitman and Adam Smiley

While most New Yorkers rode out last weekend’s blizzard by binge watching television or enjoying playoff football, three Second Circuit judges apparently spent their time more productively, as the court on Monday issued an amended decision in its landmark ruling from last summer on unpaid internships.

As we have previously reported, the court’s July 2015 decision in Glatt v. Fox Searchlight held that the “primary beneficiary” test should be used to decide whether unpaid interns should be deemed employees or trainees. The court also held that this test requires highly individualized inquiries—a conclusion that may deal a blow to plaintiffs’ abilities to obtain class or collective certification in these cases.

In its amended decision, the Court added a third “salient feature” to the primary beneficiary test, holding that the “intern-employer relationship should not be analyzed in the same manner as the standard employer-employee relationship because the intern enters into the relations with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment.” The court also inserted a statement that its analysis of the intern v. trainee question is limited to internships and not to “training programs in other contexts.”

Later in the amended opinion, after the listing of the seven non-exhaustive factors that determine the “primary beneficiary” of an internship, the court noted that the “touchstone” of its analysis was the economic reality of the relationship. In light of this, the court said, it is relevant to consider evidence “about an internship program as a whole rather than the experience of a specific intern.” This is an important addition because it may render the specific experiences of a named plaintiff less important in the overall “primary beneficiary” analysis and make it easier for an employer to satisfy the test even if a particular manager did not administer a compliant program.

The court also modified its analysis of the previously vacated Rule 23 claims under New York law. It deleted the prior reference to “individualized” inquiries driving the denial of class certification, and replaced it with “highly context-specific” inquiries regarding an internship program as the barrier to a finding of commonality. The holding now reads as follows: “[T]he question of an intern’s employment status is a highly context-specific inquiry. [E]vidence that the defendants received an immediate advantage from the internship program will not help to answer whether the internship program could be tied to an education program, whether and what type of training the internship program provided, whether the internship program continued beyond the primary period of learning, or the many other questions that are relevant in this case.”

After the court issued its first decision in Glatt last July, the plaintiffs filed a petition for en banc review. Despite the denial of en banc review in Wang v. Hearst Corp., the companion case involving Hearst interns, the Glatt petition has remained pending. We suspect that this amended opinion reflects a compromise by the court’s judges to avoid a potentially contentious review by the full court. We now expect a decision on the en banc petition to be issued soon.

Although the court has now revised the “primary beneficiary” to apply only to intern cases, the Glatt decision still has broad implications for employers that use unpaid interns. In particular, courts within the Second Circuit are still required to take a holistic view of an internship program, and the hurdles to class and collective certification remain in place. As always, however, employers should conduct a careful analysis of their internship programs to ensure full compliance with any wage and hour obligations and protect themselves from future litigation.

Co-authored by Kat Jugo and Kevin Young

The lawyers in our readership are quite familiar with the fact that, as a general matter, practicing attorneys are not entitled to overtime pay under the FLSA. But does that exempt status change when an attorney is retained only to review and flag documents? No it does not, per a decision issued last week by a federal judge in New York.

The case, Henig v. Quinn Emanuel, et al., was filed by a licensed attorney who was employed by a staffing agency. Through the agency, the attorney was placed at Quinn Emanuel, an international law firm, for a two-month document review project. There, he was instructed and trained to review documents and apply tags to indicate whether they were: (i) responsive; (ii) privileged; (iii) confidential; and/or (iv) “Key” or “Interesting.”

In March 2013, the attorney filed suit in New York’s Southern District, claiming that he was misclassified as exempt from the overtime requirements of the FLSA and the New York Labor Law. After limited discovery, Quinn Emanuel and the staffing agency moved for summary judgment, arguing that the attorney was properly classified under the professional exemption. That exemption applies to various professionals, including, as a general matter, lawyers who (i) hold a license permitting the practice of law, and (ii) are engaged in the practice of law.

The attorney claimed that he was misclassified because he was not engaged in the practice of law. He asserted that his review work was rote and automated, and that it did not require him to exercise legal judgment. For example, he alleged that while reviewing a document for privilege, he was simply identifying whether it was authored, sent, or received by an attorney. Such work, he argued, did not require legal judgment and, therefore, did not constitute the practice of law.

The court disagreed and granted summary judgment to Quinn Emanuel and the staffing agency. Unmoved by the fact that document review may sometimes be routine or tightly restrained, the court found that the attorney exercised at least a modicum of legal judgment. Such judgment included, for example, his decisions to tag certain documents as “Key,” as well as his comments on the potentially privileged nature of other documents. For instance, the attorney testified that he tagged a document as “Key” because “it didn’t seem like something that should be buried.”

The ruling comes on the heels of a less than favorable Second Circuit ruling in Lola v. Skadden Arps, et al., a similar case filed by a contract attorney. The district court decision in that case, which we wrote about just over a year ago, dismissed the plaintiff’s claims on similar grounds, albeit pursuant to a Rule 12(b)(6) motion to dismiss (rather than a Rule 56 motion for summary judgment). Unfortunately, that decision was later vacated and remanded by the Second Circuit, which found that document review does not per se constitute the practice of law, and the plaintiff’s claim that he did not exercise any legal judgment was enough to survive a motion to dismiss.

If the story had ended with the Second Circuit’s decision in Skadden, then law firms in New York, Connecticut, and Vermont would be left to wonder whether courts might uphold an exempt classification for document review attorneys. This recent victory for Quinn Emanuel makes clear that they might, so long as the attorneys’ work includes some professional judgment.

The takeaway from this decision comes with two words of caution, however. First, as in Skadden, the decision is subject to appeal. It is difficult to predict whether the fact that the Second Circuit so recently weighed in on the exempt status of contract attorneys (in Skadden) will make it more likely or less likely to do so again in this case. Second, in assessing what constitutes the “practice of law,” both decisions—Skadden and Quinn Emanuel—looked to definitions from the state in which the given plaintiff was licensed to practice. Both state’s definitions included the exercise of legal judgment within their definitions. For states where the definitions vary, the analysis may vary as well.

Co-authored by Robert Whitman, Joanna Smith, and Samuel Sverdlov

Joining a budding national trend, renowned restaurateur Danny Meyer of Union Square Hospitality Group last week announced that he will eliminate formal tipping at his restaurants starting in 2016. Meyer stated that the new policy, aptly named “Hospitality Included,” is meant to better compensate “back of house” staff, who are legally restricted from receiving tips, and to make the dining experience less complicated for diners.

But is there a more subtle, yet potentially more significant, legal benefit as well? By eliminating tipping, Meyer and other like-minded restauranteurs might be shielding themselves from costly legal exposure for wage and hour violations.

Historically, restaurants have been able to offset part of their payroll costs by taking advantage of federal and state tip credits, which allow them to pay waiters and other customer-facing “front of house” employees at a lower hourly rate, provided they receive a certain amount in tips. Despite the obvious financial advantage to this approach, the industry has been plagued in recent years with class and collective actions stemming from alleged tipping violations. (See examples here, here, and here.) Such claims include failing to pay minimum wage, improperly including kitchen workers in servers’ tip pools, using a portion of tips to servers of alcohol and wine to pay sommeliers’ salaries, and failing to provide required notice of the tip credit.

Furthermore, some hospitality industry experts, such as Michael Lynn of the Cornell University School of Hotel Administration, believe that tipping inherently disadvantages minority workers, suggesting that tipping practices could put employers at risk of disparate impact discrimination class action suits.

A “no tipping” policy eliminates these litigation risks. In addition to simplifying an employer’s payroll and reducing paperwork, the end of tipping could mean the end of costly class action allegations of tip pool, tip share, and service charge violations, as well as minimum wage and overtime violations predicated on an improper tip pool or share.

Moreover, over the next few years, the benefit to employers from tipping will be greatly reduced as more municipalities and states raise their minimum wage rates while reducing the tip credit. For example, as of December 31, 2015, the minimum wage rate in New York is set to rise to $9.00 an hour. New York’s Acting Commissioner of Labor has accepted the recommendation of a Wage Board to reduce the tip credit from $4.00 an hour to $1.50 an hour as of December 31, 2015. This will effectively increase the minimum wage for tipped workers in New York from $5 to $7.50 an hour at the end of this year. Other increases in minimum wage rates are occurring nationwide—San Francisco voted last November to increase its minimum wage to $15 per hour by 2018, Chicago will bring the minimum wage to $13 by 2019, and many other cities and states have follow suit.

The success of Meyer’s “Hospitality Included” approach remains to be seen. For now, it seems that adopting a no-tipping policy has several strategic benefits that will help the hospitality industry combat class and collective actions stemming from tipping violations and a rapidly increasing minimum wage.

Co-authored by Robert WhitmanAdam J. Smiley, and Meredith-Anne Berger

As this blog previously reported, a three-judge panel of the Second Circuit ruled against two separate groups of interns in early July, applying the “primary beneficiary” test—to evaluate whether unpaid interns are trainees not entitled to wages or employees who must be paid—and stating that conditional and class certification in internship lawsuits could be exceedingly difficult for plaintiffs to achieve.

On August 14, the interns in Glatt v. Fox Searchlight and Wang v. Hearst Corp. asked the Second Circuit for reconsideration of the July ruling or, alternatively, for review en banc by the full court. They argue that categorizing unpaid interns differently than other employees is contrary to Supreme Court and Second Circuit precedent and creates a category of “quasi work” that would allow private employers to receive free labor. They urge the court to adopt a test that allows unpaid internships only where employers receive no ‘immediate advantage’ from any work done by” the interns.

The plaintiffs also took issue with the panel’s ruling on their class certification motion. In addition to arguing that the interns’ claims in Glatt were substantially similar, they said the panel should not have commented on the likelihood of class certification more generally and should instead have simply remanded the issue to the trial court to have the panel’s new test applied.

If en banc review is granted, the entire roster of 13 active judges on the Second Circuit (i.e., those not on senior status) would rehear the case. Such requests are very rarely granted. In addition to the plaintiffs, a coalition of organizations such as the National Employment Law Project and Intern Worker Alliance also appear to be supporting the request for further review of the panel’s decision.

The Glatt decision is already being relied on at the District Court level. Pop culture website Gawker recently filed a motion for summary judgment in its case against several former interns and argued that, under Glatt, the interns’ claims could not survive because the interns had “precisely the sort of hands-on, educational internships that the Second Circuit endorsed in Glatt.”

While Glatt appeared to throw cold water on potential internship claims, the trend of new lawsuits continues. Most notable is the recently filed class action against Dualstar Entertainment Group, the entertainment company owned by twins Ashley and Mary-Kate Olsen of Full House fame, in which the plaintiff alleges that the company violated the New York Labor Law by failing to pay its interns.

There is no timetable for the Second Circuit’s decision on the en banc request, but watch this blog for further developments.

Co-authored by Robert S. Whitman and Howard M. Wexler

Expert witness fees are not recoverable under the FLSA. So held the Second Circuit in a decision that highlights a strategy we have previously discussed for employers to fend off class/collective actions.

In Gortat v. Capala Brothers, Inc., the plaintiffs alleged that they were denied wages, including overtime compensation, throughout their employment. After six years of litigation, the case went to trial and the plaintiffs prevailed, winning unpaid wages as well as $514,284.00 in attorney’s fees and $68,294.50 in costs. In support of their claims, the plaintiffs retained an economic expert to aid in establishing their alleged damages.

In their appeal to the Second Circuit of the fee award, the defendants argued that the expert fees (which constituted $10,425 of the attorney’s fee award ) are not recoverable under the FLSA. The court agreed. It relied on the text of the FLSA, which states that where a defendant has violated the Act, “the court … shall, in addition to any judgment awarded to the … plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” Based on this language, the court said that the plaintiffs were not entitled to be reimbursed for the expert fees, as the FLSA does not explicitly provide for such reimbursement. The Second Circuit then vacated the award and remanded the case to the District Court to determine if the New York Labor Law authorizes the award of such fees.

In isolation, this decision is hardly a game changer. However, we have previously written about the increasing importance of a trial plan for wage and hour class/collective actions to ensure that cases can effectively be tried on a multi-plaintiff basis rather than wind up as hundreds (or potentially thousands) of mini-trials. In Tyson Foods, Inc. v. Bouaphakeo, which the Supreme Court will hear next Term, one of the issues before the Court will be whether liability and damages may be determined by statistical techniques that presume all class or collective members are similar.

Plaintiffs often resist coming up with a trial plan during discovery or briefing on certification of the class/collective action, arguing that such details can be left until the eve of trial. Now, to the extent plaintiffs retain an expert to aid in formulating a trial plan earlier in the case, Gortat makes it clear that, at least in the Second Circuit, they will have to pay for the expert out of their own pocket. Having to foot the bill for such costs, with no chance of recouping them later on, may cause plaintiffs’ counsel to rethink the scope of the class/collective action they wish to pursue, or whether to pursue one at all.