MICHELE METCALF HANNAH LAWSON v. TRANSPERFECT TRANSLATIONS INTERNATIONAL INC (2025)

REPORT AND RECOMMENDATION ON MOTION FOR DECERTIFICATION

TO: THE HONORABLE EDGARDO RAMOS, United States District Judge

FROM: KATHARINE H. PARKER, United States Magistrate Judge

Before the Court for a report and recommendation is Defendant TransPerfect Translations International Inc.’s (“TransPerfect”) Motion to Decertify the Class. For the reasons set forth below, I recommend the motion be denied.

BACKGROUND

This case involves a discrete set of facts. On December 31, 2018, the salary threshold required to qualify for an exemption from overtime pay under New York law increased to $1,125 per week for New York City employees working at companies with 11 or more employees. See 12 N.Y.C.R.R. § 142-2.14(c)(4)(i)-(ii). Although the class members’ salaries previously met the threshold to qualify for an exemption, when the threshold increased, TransPerfect did not raise class members’ salaries to the required threshold, rendering all class members eligible for overtime pay.¹ Nevertheless, TransPerfect continued to treat class members as exempt from overtime and did not provide a method for them to record their hours or request overtime pay. In September 2019, after this lawsuit was brought, TransPerfect issued retroactive salary increases to 82 class members to bring their salaries up to the new threshold required for meeting an exemption from overtime. It did not pay these 82 employees interest on the retroactive salary payment. TransPerfect took the position that this payment cured any noncompliance with New York law and was a defense to liability pursuant to a federal “window of correction” regulation. Plaintiffs contended that the “window of correction” regulation was inapplicable and moved for dismissal of this affirmative defense.

Approximately two years ago, this Court recommended a class be certified, and the recommendation was adopted. The class consists of all TransPerfect salaried employees in New York City who were paid $1,125.00 per week or less between December 31, 2018 and September 30, 2019 who did not sign arbitration agreements. (ECF Nos. 282, 303) There are 110 members of the class.²

After this Court issued its recommendation on class certification, the parties engaged in extensive discovery. Additionally, since then, the Court granted Plaintiff's motion to dismiss TransPerfect's “window of correction” defense. (ECF Nos. 410, 452)

All fact discovery is now complete. TransPerfect contends that discovery has revealed that class treatment is no longer proper under Federal Rule of Civil Procedure 23 (“Rule 23”) and therefore moves to de-certify.

LEGAL STANDARD

Courts must continue to assess whether class treatment remains appropriate throughout an action. Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999); Mazzei v. Money Store, 829 F.3d 260, 266 (2d Cir. 2016); Jin v. Shanghai Original, Inc., 990 F.3d 251, 262 (2d Cir. 2021). Indeed, Rule 23 contemplates this by providing that the Court may alter or amend any order granting or denying class certification at any time before final judgment. Fed. R. Civ. P. 23(c)(1)(C); see also In re J.P. Morgan Chase Cash Balance Litig., 255 F.R.D. 130, 133 (S.D.N.Y. 2009) (“A district court does have discretion to alter or amend a class action ruling before final judgment.”) (citations omitted). Accordingly, “a district court may decertify a class if it appears that the requirements of Rule 23 are not in fact met.” In re Namenda Indirect Purchaser Antitrust Litig., No. 15-cv-6549 (CM) (RWL), 2022 WL 4298767, at *6 (S.D.N.Y. Sept. 19, 2022) (quoting Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982)) (internal quotation marks omitted).

An intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice are reasons that may warrant a change to a prior order on class certification; however, there may be other circumstances that cause the court to find that a “previously satisfied requirement of Rule 23 is now lacking.” B&R Supermarket, Inc. v. Visa Inc., No. 17-cv-2738 (MKB), 2024 WL 3823096, at *8 (E.D.N.Y. Aug. 14, 2024) (internal quotation marks omitted); Jin, 990 F.3d at 262 (stating that a significant intervening event is not required to decertify a class).

As set forth in this Court's prior opinions, for class treatment to be appropriate, a plaintiff must satisfy Rule 23(a) requirements that (1) the class be “so numerous that joinder of all members is impracticable;” (2) there are “questions of law or fact common to the class;” (3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class;” and (4) the “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Additionally, a plaintiff must show one of the three requirements of Rule 23(b) is met. In this case, the court previously found that Rule 23(b)(3) were met--that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

Plaintiffs bear the burden of demonstrating by a preponderance of the evidence that Rule 23 requirements are satisfied throughout the case, even when opposing a motion for decertification. Mazzei, 829 F.3d at 270; Price v. L'Oreal USA, Inc., 17-cv-614 (LGS), 2021 WL 4459115, at *3 (S.D.N.Y. Sept. 29, 2021).

DISCUSSION

TransPerfect contends discovery has demonstrated that the Rule 23(b) factors are not met for class treatment of the overtime claim because individualized issues predominate the liability and damages inquiries and that subclasses cannot overcome the problems with class treatment because subclasses would not meet the 23(a) criteria. TransPerfect makes no arguments about the appropriateness of class treatment of the wage statement claim.

TransPerfect's primary argument – not made in opposition to the prior motion for class certification -- rests on its legal position that whether a class member is exempt from overtime under federal law is critical to determining liability for overtime under state law and, as a result, continued class treatment is inappropriate because individualized issues regarding whether each class member's duties qualify for a federal white-collar exemption predominate.³

To arrive at this legal position, it first points to 12 N.Y.C.R.R. § 142-2.2, which specifies the overtime rate due to employees who are non-exempt under New York law. This regulation sets two different overtime rates for individuals who are non-exempt under both federal and state law than for individuals who are exempt under federal law but non-exempt under New York law. In the latter situation, New York law requires payment of only one and one-half times the basic minimum hourly rate, whereas in the former situation, New York law requires payment of one and one-half the employee's “regular rate.” 12 N.Y.C.R.R. § 142-2.2. Next, TransPerfect points to 12 N.Y.C.R.R. § 142-2.16, which provides a definition for the term “regular rate” referenced in 12 N.Y.C.R.R. § 142-2.2. That regulation defines “regular rate” to mean “the amount that the employee is regularly paid for each hour of work,” or, if the employee is paid on a basis other than an hourly rate, the regular rate is “determined by dividing” the employee's total earnings for the week by his/her total hours worked in the week. 12 N.Y.C.R.R. § 142-2.2.

TransPerfect contends that these regulations, when read together, actually provide a defense to a situation where an employer is found to have misclassified an employee as exempt under New York law and never paid the employees anything for overtime hours. Under this theory, an employer can back into a defense to liability to pay overtime so long as the employee's salary is high enough to satisfy 12 N.Y.C.R.R. § 142-2.2, even though the employer failed to pay the salary necessary to qualify as exempt from overtime under New York law. In other words, if an employer pays an employee at a regular hourly rate of 1.5x minimum wage, the employer cannot be liable for failure to pay overtime.⁴ It cites to several cases and two New York Department of Labor opinions in support of this argument.

But all the cases and New York Department of Labor opinion letters upon which TransPerfect relies are inapposite, as none involve circumstances where an employer misclassified an employee as exempt under the state law by paying them less than the salary threshold needed to qualify for the exemption. Nor do any of its cited authorities construe the definition of regular rate in 12 N.Y.C.R.R. § 142-2.16 to provide a defense to liability in a misclassification situation; nor do they compute an employee's regular rate under 12 N.Y.C.R.R. § 142-2.16. See Row v. Old Dominion Freight Lines, Inc., No. 21-cv-4021 (KMK), 2022 WL 2181619 (S.D.N.Y. June 16, 2022) (in case involving truck drivers who were paid an hourly rate and exempt from overtime under federal law under the motor carrier exemption but non-exempt under New York state law, court found that plaintiffs failed to state a claim under state law because the rate they received for overtime hours (which was the same as their straight time rate) exceeded one and one-half times the state minimum wage rate, consistent with 12 N.Y.C.R.R. § 142-2.2; rejecting argument that plaintiffs were entitled to an overtime rate equal to their straight time pay rate plus one half times New York's minimum wage rate; court did not mention 12 N.Y.C.R.R. § 142-2.16 as a defense to liability);⁵ Edwards v. Jet Blue Airways Corp., 21 Misc.3d 1107(A) (Sup. Ct. Kings Cnty. Oct. 6, 2008) (granting motion to dismiss on a motion to renew in case involving baggage handler subject to the Railway Labor Act and thus exempt under the Fair Labor Standards Act who was paid the same hourly rate for regular and overtime hours where rate exceeded one and one-half the state minimum wage rate; court did not determine regular rate and overtime rate or liability or mention 12 N.Y.C.R.R. § 142-2.16); Charlot v. Ecolab, Inc., No. 12-cv-4543, 2017 WL 11526717 (KAM) (VMS) (E.D.N.Y. Mar. 29, 2017) (case involving plaintiffs who were paid a base salary and commissions and were exempt from overtime under federal and state law pursuant to the retail sales exemption;⁶ court did not evaluate use of 12 N.Y.C.R.R. § 142-2.16 as defense to liability); N.Y. DOL Op. RO-08-0031 (Apr. 17, 2008) (discussing facts in Edward v. Jet Blue, supra); N.Y. DOL Op. RO-04-0066 (Dec. 6, 2004) (discussing situation involving motor carrier exemption and not addressing 12 N.Y.C.R.R. § 142-2.16 as defense to liability in misclassification case).

Further, the Court is aware of no case that would support TransPerfect's interpretation of New York law. As discussed, its interpretation would allow an employer not to pay an employee overtime while at the same time not paying enough in salary to treat the employee as exempt from overtime. In this case, the issue of whether a class member is exempt under federal law relates to damages, not to liability.⁷ Thus, TransPerfect's first argument is not persuasive.⁸

TransPerfect also argues that liability cannot be established on a class-wide basis because, for there to be a violation of the state wage law, the class members must have worked overtime, and because class members’ hours varied by position and department, Plaintiffs cannot establish that all class members actually worked overtime through common proof. Yet TransPerfect does not dispute that it did not keep track of class members’ hours and, thus, proxies for hours worked will be needed. The Court addressed this argument when certifying the class, noting that courts recognize that in the wage and hour case, “establishing a uniform practice or scheme” that deprives the proposed class of overtime wages “may constitute a significant step towards establishing liability to all class members” and justify a finding of predominance even if exact hours worked cannot be proven on a classwide basis. Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 148 (S.D.N.Y. 2002); see also Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346, 359 (E.D.N.Y. 2011), vacated in part on other grounds, 773 F.3d 394 (2d Cir. 2014) (noting that wage claims are especially suited to class litigation despite differences in hours worked, wages paid, and wages due). Here, Plaintiffs have offered common proof of a uniform practice that deprived the class members of overtime – i.e., TransPerfect's failure to pay class members the salary threshold needed to satisfy New York's administrative exemption. TransPerfect does not cite to any case law refuting this legal point and merely points to information learned in discovery showing that the schedules and routines of virtually every class member varied on a weekly basis such that it would be impossible to show that all class members had at least some overtime hours. This is the same argument it made when contesting class treatment in the first place.

As discussed in the Court's order granting class certification, Plaintiffs intend to proffer expert testimony from David Breshears, CPA/CFF, who will analyze, among other things, all class members’ email activity to establish that on the whole, each class member worked at least some overtime during the relevant period. In the absence of employer recordkeeping, courts have allowed plaintiffs to satisfy their burden of establishing eligibility for overtime pay (i.e., having worked overtime hours) by presenting evidence that allows for a reasonable inference of hours worked. It is well established in New York that an employee satisfies the burden of establishing that he/she worked overtime by presenting “sufficient evidence to show the amount and extent of [uncompensated work] as a matter of just and reasonable inference.” Kuebel v. Black & Decker, Inc., 643 F.3d 352, 362 (2d Cir. 2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds by 29 U.S.C. § 254(a)). An expert's analysis of proxies for hours worked for each class member is the type of evidence that can be used to establish an inference that each class member worked at least some overtime hours during the relevant period. Hart v. Rick's Cabaret Intern., Inc., 60 F. Supp.3d 447, 471-73 (S.D.N.Y. 2014) (declining to decertify class and noting that expert testimony from analysis of computerized payroll and time-keeping database would be used to determine wages owed to plaintiffs). See also Tyson Foods, 577 U.S. 442, 455 (2016) (allowing representative evidence to establish hours). That the hours are estimated or plaintiffs rely solely on their recollection is not fatal to demonstrating overtime in a situation where the employer has failed to keep records. See Kuebel, 643 F.3d at 362; Santillan v. Henao, 822 F. Supp.2d 284, 294 (E.D.N.Y. 2011); Doo Nam Yang v. ACBL Corp., 427 F. Supp.2d 327, 335 (S.D.N.Y. 2005). Indeed, once a plaintiff has met the burden, the burden shifts to the employer “to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee's evidence.” McGlone v. Contract Callers, Inc., 49 F. Supp. 3d 364, 371 (S.D.N.Y. 2014).

TransPerfect does not address Plaintiffs’ expert at all in its motion for decertification. Nor does it proffer any evidence developed in discovery showing that most or even a significant percentage of the class did not in fact work any overtime hours. At this stage of the case, without the benefit of the expert merits reports, it is premature to find that Plaintiffs cannot demonstrate that all class members worked at least some overtime hours during the relevant period through common proof, such as analysis of TransPerfect's email and other work systems.

Notwithstanding the above, the Court recognizes that damages questions “should be considered at the certification stage when weighing predominance issues.” Roach v. T.L. Cannon Corp., 778 F.3d 401, 408 (2d Cir. 2015). Here, while it is true that each class member's exact overtime hours will be more difficult to show through common proof, this is a damages issue that can be managed in a class of only 110 individuals in a single location. (See ECF No. 282, at 29.)

The exemption status of each class member under federal law is a more difficult issue to manage insofar as it may require an assessment of each class member's job duties, although this issue only goes to the rate of overtime pay applicable. Though Plaintiffs do not address it, it may be that they do not challenge the exempt status of certain class members under federal law. If Plaintiffs do not challenge TransPerfect's assertion that certain class members were exempt under federal law, the damages analysis will be significantly easier for those class members, as the only issue will be how many hours they worked, as the applicable overtime rate under 12 N.Y.C.R.R. § 142-2.2 will be clear.⁹

Similarly, TransPerfect contends it has evidence that it will introduce to prove that more than 20 class members agreed that their salaries covered all hours worked such that these individuals would only be entitled to their half-time rate for overtime hours. The New York State Industrial Board of Appeals has sanctioned a fluctuating workweek methodology of computing overtime premiums in a misclassification case.¹⁰ See, e.g., Cayuga Lumber, Inc. v. Commissioner of Labor, Dkt. No. PR-05-009 (N.Y. Ind. Bd. App. Sept. 26, 2007). And if Plaintiffs do not contest the fluctuating workweek methodology for computing overtime due for 20 or more class members, this will simplify damages issues. In other words, in this case, even if damages may need to be determined on an individualized basis, due to the small size of the class and potential for narrowing disputes about appropriate overtime rates, it is premature to find that continued class treatment is inappropriate. This is especially so when, as here, there are substantial common issues concerning liability. Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015). (See also ECF No. 282, at 23.) The Court also notes that TransPerfect's citations to cases in which courts decertified a class are inapposite because they involved larger classes, situations when a damages model did not match a theory of liability or decertification after a trial based on a jury verdict. None involved remotely similar facts as the instant case. See De Lacour v. Colgate-Palmolive Co., No. 16-cv-8364 (KMW), 2025 WL 36820, at *7 (S.D.N.Y. Jan. 3, 2024) (consumer class action involving claim that use of word “natural” on toothpaste and deodorant was false and misleading and three subclasses in three states; granting motion to decertify because plaintiff failed to produce evidence in discovery that a reasonable consumer was misled by the term “natural” and thus there was no generalized proof of deception to support finding of commonality); Price v. L'Oreal USA, Inc., 17-cv-614 (LGS), 2021 WL 4459115, at *4-6 (S.D.N.Y. Sept. 29, 2021) (granting motion to decertify consumer class action because plaintiffs damages model did not match their theory that they paid a higher price for produce because of allegedly misleading advertising); Lopez v. Setauket Car Wash, 2016 U.S. Dist. LEXIS 80820, at *9 (E.D.N.Y. June 14, 2016) (in class case alleging violations of federal and state wage law, after jury found that overtime was due to only two of three lead plaintiffs under state law and there was insufficient gross sales for federal law to apply, court granted decertification).

TransPerfect makes a number of arguments about subclasses which are not necessary to address because it is not clear that the discrete class in this case needs to be segmented further given that class members were all injured, at a minimum, from the same common policies of failing to increase their salaries to qualify for an exemption under New York law and failing to record hours or pay overtime or provide any mechanism for payment of overtime under New York law.

In sum, on balance, predominance is still satisfied. Further, superiority is still met for the same reasons the Court previously found it was met. Nothing new from discovery has been presented to disturb the Court's prior finding on predominance or superiority.¹¹

CONCLUSION

For the reasons set forth above, I respectfully recommend that Defendant's Motion to Decertify the Class be denied.

NOTICE

The parties shall have fourteen days from this date to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) to this Report and Recommendation. If Defendant files written objections to this Report and Recommendation, Plaintiffs may respond to the objections within fourteen days after being served with a copy. Fed. R. Civ. P.72(b)(2). If Plaintiffs file written objections, Defendant may respond to the objections within fourteen days.

Objections and responses to objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Edgardo Ramos at 40 Foley Square New York, NY 10007-1312, to the chambers of the undersigned magistrate judge, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any request for an extension of time to file objections must be directed to Judge Ramos. Failure to file timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C.§ 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).

FOOTNOTES

1.   Absent qualifying for an exemption, the NYLL requires employers to pay employees overtime pay for all hours worked over 40 in a work week. See N.Y. Labor Law § 650, et. seq.; see also 12 N.Y.C.R.R. § 142-2.2.

2.   Through discovery, the number of individuals in the class has decreased since the Court first certified a class.

3.   The so-called “white-collar exemptions” consist of the administrative, executive and professional exemptions which as a general matter require the employee to be paid on a salary basis and to perform certain duties. See 29 U.S.C. § 213(a)(1) & 29 C.F.R. §§ 541.0-541.4 (white-collar exemptions).

4.   Of note, New York's minimum wage rate during the relevant period applicable in this case was $15 per hour. 12 N.Y.C.R.R. § 142-2.1(1)(i). Thus, under 12 N.Y.C.R.R. 142-2.2, employees who were exempt under federal law but non-exempt under state law during the relevant period, the minimum overtime rate was $22.50 per hour (i.e., 1.5 × $15 per hour). See 12 N.Y.C.R.R. § 142-2.2. If an employee regularly earned more than $900.00 in a forty-hour work week, their regular rate would exceed this particular overtime rate, since $22.50 times 40 hours is $900.00. TransPerfect appears to be arguing there is a loophole in the law that would allow it to exploit the gap between (1) the amount paid to a FLSA-exempt and NYLL-non-exempt employee whose regular rate meets or exceeds the overtime rate for a FLSA-exempt employee and (2) the state salary threshold to qualify as exempt from being paid overtime in New York. However, the Court does not read New York law as having this loophole for the reasons set forth herein. Taken at its extreme, under TransPerfect's theory, a misclassified employee who earned $905 per week would not be entitled to overtime under New York law even though that employee would be entitled to overtime under federal law insofar as the employee would not meet the then-applicable $913 federal salary threshold to qualify for an administrative exemption. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed. Reg. 32390-01, 32393 (May 23, 2016) (codified at 29 C.F.R. § 541.600, as amended). This is the exact opposite of the intent of the New York wage laws, which provides for higher minimum wages and exempt salary thresholds than federal law.

5.   The federal motor carrier exemption does not require that employees be paid on a salary basis like the white-collar exemptions relied on by TransPerfect in this case. Compare 29 U.S.C. § 213(a)(1); 29 C.F.R. §§ 541.0-541.4 (white-collar exemptions), with 29 U.S.C. 213(b)(1), 29 C.F.R. §§ 782.0-782.8 (motor carrier).

6.   Employees who fall under the retail sales exemption are not entitled to overtime premiums. See 29 C.F.R. § 779.0, et seq.; 29 U.S.C. § 207(i); 12 N.Y.C.R.R. § 142-2.2 (excluding employees subject to retail sales exemption from overtime rate rule).

7.   TransPerfect conflates the decision to classify an employee as exempt by offering them a rate above the salary threshold—an antecedent classification—with decisions about the computation of overtime for employees who are classified as non-exempt. The question of whether an employee is classified as exempt necessarily precedes the question of whether overtime needs to be calculated at all. If an employee is classified as fully exempt, there will be no calculation of the overtime rate whatsoever. An employer may not defend itself against a claim that it wrongly classified its employees as exempt by stating that it correctly calculated their overtime rate. Because TransPerfect treated the class members as exempt under New York law, a fact about which there is no dispute, concluding their rate of pay satisfied the overtime rate calculation provision of 12 N.Y.C.R.R. § 142-2.2 is a contradiction in terms because an exempt employee does not get overtime pay. This case is about the failure to pay overtime due to an antecedent misclassification, not about whether employees classified as non-exempt were paid the proper overtime rate.

8.   In any event, the Second Circuit has rejected the argument that “exemption is an inherently individualized inquiry, such that class treatment will never be appropriate in exemption cases.” Myers v. Hertz Corp., 624 F.3d 537, 549 (2d Cir. 2010) (“[D]istrict courts in this Circuit have certified classes on state law claims that turn on the question of FLSA exemption for a particular group of employees.”).

9.   And it is the Court's understanding from prior motion arguments that a certain number of class members were reclassified as non-exempt in September 2020. It may be that TransPerfect decides not to present evidence that these individuals were properly classified as exempt under federal law during the relevant period, which could further reduce the number of individuals whose exemption status is truly at issue.

10.   While it is true that federal courts in this District have found the federal fluctuating workweek regulation cannot be used in a misclassification case to compute damages under the federal law, those courts still allow for an employer to demonstrate there was an agreement that the employee's salary was intended to cover all hours worked, consistent with the U.S. Supreme Court's decision in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942), superseded by statute on other grounds by 29 U.S.C. § 260, as well as the rule subsequently promulgated to codify Missel into regulation, 29 C.F.R. § 778.114. See Costello v. Home Depot USA, Inc., 944 F. Supp. 2d 199, 203-04 (D. Conn. 2013); see also Klein v. Torrey Point Group, LLP, 979 F. Supp.2d 417, 436-37 (S.D.N.Y. 2013); Diaz v. Bloomberg, L.P., No. 22-cv-7251 (JMF), 2023 WL 3505522, *2-4 (S.D.N.Y. May 17, 2023) (discussing applicability of fluctuating workweek method under both federal and state law; holding criteria for fluctuating workweek method of paying overtime met); Siegel v. Bloomberg L.P., No. 13-cv-1351 (DLC), 2015 WL 223781, *3-8 (S.D.N.Y. Jan. 16, 2015) (granting summary judgment to plaintiffs and holding they were not exempt from overtime under federal administrative exemption, finding that fluctuating workweek method of computing overtime as set forth in 29 C.F.R. 778.114 was inapplicable but holding trial was necessary on whether fluctuating workweek method as set forth in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942) could apply).

11.   TransPerfect says virtually nothing about superiority, and its citations to cases mentioning superiority do not warrant decertification on the facts of this case. See Myers, 624 F.3d at 547 (cited only for 23(b)(3) standard); Mazzei, 829 F.3d at 270; Ruggles v. WellPoint, Inc., 272 F.R.D. 320, 341 (N.D.N.Y. 2011) (case involved three classes in three states involving learned professional exemption defense to misclassification case).

KATHARINE H. PARKER United States Magistrate Judge