Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 1 of 26

Granovsky & Sundaresh PLLC
Alexander Granovsky (AG-6962)
48 Wall Street
New York, NY 10005
ag@g-s-law.com
646-524-6001
Attorneys for Plaintiffs, David DeKeyser and Jessica Levy
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
DAVID DEKEYSER and JESSICA LEVY on
:
behalf of themselves and all others persons
:
similarly situated
:
: Civil Action No.:
Plaintiffs
:
:
v.
: COMPLAINT
: and JURY DEMAND
ABACULI MEDIA, INC., CMJ HOLDINGS, and :
ADAM KLEIN, individually.
:
:
Defendants.
:
__________________________________________:
Plaintiffs David DeKeyser and Jessica Levy on behalf of themselves and all others
similarly situated, upon personal knowledge as to themselves and upon information and belief as
to other matters, by their attorneys, GRANOVSKY & SUNDARESH PLLC, as and for their
Complaint against Defendants ABACULI MEDIA, INC., CMJ HOLDINGS, and ADAM
KLEIN, allege as follows:
I.
1.

NATURE OF THE CLAIMS

This is an action for damages brought by David DeKeyser (“DeKeyser”), Jessica Levy

(“Levy,” and, collectively with DeKeyser, “Plaintiffs”) and all others similarly situated against
Defendants ABACULI MEDIA, INC., and CMJ HOLDINGS (collectively“Abaculi”) and
ADAM KLEIN, individually (“Klein” and, collectively with Abaculi,“Defendants”) for: (a)

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unpaid wages from Defendants, jointly and severally, for work performed for which they
received no compensation at all; (b) unpaid wages from Defendant, for overtime work for which
they did not receive overtime premium pay as required by law, and (c) liquidated damages
pursuant to the FLSA, 29 U.S.C. §201 et seq.
2.

This action is also brought by Plaintiffs asserting that they are entitled to wages from

Defendants for work performed for which they received no compensation at all as well as for
overtime work for which Plaintiffs did not receive overtime premium pay, as required by New
York Labor Law, §650 et seq. including Part 142 § 142.2.2 (“Overtime Rate”) of Title 12 of the
Official Compilation of Codes, Rules and Regulations promulgated by the Commissioner of
Labor pursuant to the Minimum Wage Act (Article 19 of the New York State labor Law)
(“NYLL”).
3.

Finally, this action is brought by Plaintiffs asserting that they are entitled to damages for

Defendants’ failure to comply with New York Labor Law §195 et. seq. by failing to supply
Plaintiffs with legally required wage notices and statements.
4.

Plaintiffs and others similarly situated have been/are employed by Defendants in the

music business.
5.

As part of its regular business practice, Defendants have intentionally, willfully and

repeatedly engaged in a pattern, practice and/or policy of violating the FLSA and NYLL with
respect to Plaintiffs and others similarly situated. This policy and pattern or practice includes but
is not limited to:
A.

willfully failing to pay all of its employees, including Plaintiffs, their
wages for time worked;

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B.

willfully failing to pay Plaintiffs and others similarly situated, overtime
wages for hours that they worked in excess of 40 hours per workweek;

C

willfully failing to accurately record all of the time Plaintiffs and others
similarly situated have worked for the benefit of Defendants;

D.

willfully failing to supply Plaintiffs and others similarly situated, proper
notice of their respective rates of pay and basis thereof, including hourly
rates of pay and overtime rates of pay; and

E.

willfully failing to supply Plaintiffs and others similarly situated with an
accurate statement of wages.

6.

Defendants’ unlawful conduct has been widespread, repeated, and consistent.
JURISDICTION AND VENUE

7.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343, 1367,

2201, N.Y. Exec. L. § 290 et seq., and N.Y.C. Admin. Code § 8-101 et seq. The supplemental
jurisdiction of the Court (28 U.S.C. § 1367) is invoked over state and local law causes of action.
8.

Venue is proper in this district pursuant to 28 U.S.C. § 1391.
THE PARTIES

9.

Plaintiff DeKeyser is and was, at all relevant times an adult individual residing in New

York City. Mr. DeKeyser’s Consent to Become a Party Plaintiff is annexed hereto and marked
as Exhibit A.
10.

Plaintiff Levy is and was, at all relevant times an adult individual residing in New York

City. Ms. Levy’s Consent to Become a Party Plaintiff is annexed hereto and marked as Exhibit
B.
11.

DeKeyser and Levy both worked for Abaculi from its offices at 110 East 25th Street, New

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12.

Upon information and belief, CMJ Holdings, also known as CMJ Music and CMJ Music

Marathon is a New York limited liability corporation which is wholly owned by Abaculi.
13.

Upon information and belief, at all relevant times, Defendant Adam Klein is the owner

and chief executive officer of Abaculi, and exercised substantial operational control over the
functions of the employees of the Abaculi, including, but not limited to hiring, supervision and
compensation of employees.
14.

Upon information and belief, at all relevant times, Defendant Klein was a controlling

shareholder, officer and director of Abaculi.
15.

Upon information and belief, during the time that Plaintiffs worked at Abaculi, Abaculi

and CMJ were used interchangeably as Plaintiffs’ employer.
16.

At all relevant times, Abaculi was and continues to be an employer engaged in interstate

commerce and/or the production of goods for commerce within the meaning of the FLSA, 29
U.S.C. §§ 206(a) and 207(a) and the NYLL.
17.

Upon information and belief, at all relevant times, Abaculi had gross revenues in excess

of $500,000.00.
18.

Upon information and belief, at all relevant times, Abaculi has used goods produced in

interstate commerce.
19.

Upon information and belief, Abaculi constitutes an “enterprise” as defined by the FLSA.

20.

At all relevant times, the Abaculi and Klein were an employer of Plaintiffs and Plaintiffs

were employed by Abaculi and Klein within the meaning of, inter alia, FLSA, 29 U.S.C.
21.

Defendants caused the violations set forth in this Complaint.
FLSA COLLECTIVE ACTION ALLEGATIONS

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22.

Plaintiffs seek to prosecute their FLSA claims as a collective action on behalf of all

persons similarly situated who are or were formerly employed by Defendant since December 16,
2013 (three years before the filing of the Complaint in this case) to the entry of judgment in this
case (the “FLSA Collective Action Period”) who were employees within the meaning of the
FLSA and who were not paid wages for all hours worked and overtime compensation at rates not
less than one and one half times the regular rate of pay for hours worked in excess of forty hours
per workweek (the “FLSA Collective Action Plaintiffs”).
23.

At all relevant times, Plaintiffs and the other FLSA Collective Action Plaintiffs are and

have been similarly situated, are and have had substantially similar job requirements and pay
provisions, and are and have been subjected to Defendants’ decisions, policies, plans, programs,
practices, procedures, protocols, routines, and rules, all culminating in a willful – and admitted –
failure and refusal to pay them at all, including but not limited to Defendants’ willful failure to
pay the proper overtime premium at the rate of one and one half times the regular rate for work
in excess of forty (40) hours per workweek. The claims of Plaintiffs stated herein are essentially
the same as those of the other FLSA Collective Action Plaintiffs. Specifically, Plaintiffs and
FLSA Collective Action Plaintiffs claim that Defendants willfully violated Plaintiffs’ and FLSA
Collective Action Plaintiffs’ rights.
24.

The claims for relief are properly brought under and maintained as an opt-in collective

action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b). The FLSA Collective Action
Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this
action, their names and addresses are readily available from the Defendants. Notice can be
provided to the FLSA Collective Action Plaintiffs via first class mail and e-mail to the last
address known to Defendant.

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25.

The collective action is so numerous that joinder of all Plaintiffs is impracticable.

Although the precise number of such persons is unknown, and the facts on which the calculation
of that number are presently under the sole control of the Defendants, upon information and
belief, there are more than ten Plaintiffs of the collective action who worked for Defendants
during the FLSA Collective Action Period, most of whom would not be likely to file individual
suits because they lack adequate financial resources, access to attorneys or knowledge of their
claims.
26.

Plaintiffs will fairly and adequately protect the interests of the FLSA Collective Action

Plaintiffs and has retained counsel that is experienced and competent in the fields of employment
law and collective action litigation. Plaintiffs have no interests that are contrary to or in conflict
with those Plaintiffs of this collective action.
27.

The FLSA Collective Action Plaintiffs are similarly situated to Plaintiffs in that they are

or were denied payment of wages including, but not limited to premium overtime pay for hours
worked beyond forty hours in a week.
28.

They are further similarly situated in that Defendants have or had a policy and practice of

knowingly and willfully refusing to pay wages including, but not limited to overtime wages.
29.

They are further similarly situated in that, upon information and belief, Defendants have

engaged in a pattern and practice of altogether refusing to pay its employees their wages.
30.

They are further similarly situated in that, upon information and belief, Defendants have

a policy and practice of failing to provide Plaintiffs with statutorily required notice of wages or
statements of their pay received in part so as to hide Defendants’ violations of the wage and hour
laws and to take advantage of Plaintiffs’ relative lack of sophistication in wage and hour laws.

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31.

They are further similarly situated in that, upon information and belief, Defendants have

a policy and practice of willfully disregarding and purposefully evading recordkeeping
requirements of the FLSA and NYLL by failing to maintain accurate and complete timesheets
and payroll records.
32.

Upon information and belief, these practices by Defendants were done willfully to

disguise the actual number of hours Plaintiffs and FLSA Collective Action Plaintiffs worked and
to avoid paying Plaintiffs properly for their full hours worked and for overtime due them.
33.

A collective action is superior to other available methods for the fair and efficient

adjudication of this controversy, since joinder of all Plaintiffs is impracticable. Furthermore,
inasmuch as the damages suffered by individual FLSA Collective Action Plaintiffs might be
relatively small, the expense and burden of individual litigation make it virtually impossible for
the Plaintiffs of the collective action to individually seek redress for the wrongs done to them.
There will be no difficulty in the management of this action as a collective action.
34.

Questions of law and fact common to Plaintiffs of the collective action predominate over

questions that may affect only individual Plaintiffs because Defendants have acted on grounds
generally applicable to all Plaintiffs. Among the common questions of law and fact common to
Plaintiffs and the FLSA Collective Action Plaintiffs are:
a.

whether Defendants employed Plaintiffs and the FLSA Collective Action

Plaintiffs within the meaning of the FLSA;
b.

whether Defendants failed to provide Plaintiffs and the FLSA Collective

Action Plaintiffs with a notice of wages explaining each employees’
compensation.

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c.

whether Defendants failed to keep true and accurate time records for all

hours worked by Plaintiffs and the FLSA Collective Action Plaintiffs;
d.

what proof of hours worked is sufficient where the employer fails in its

duty to maintain records;
e.

whether Defendants failed to pay Plaintiffs and the FLSA Collective

Action Plaintiffs wages for all hours worked, including hours in excess of forty
hours per workweek, in violation of the FLSA and the regulations promulgated
thereunder;
f.

whether Defendants’ violations of the FLSA are willful as that term is

used in the context of the FLSA;
g.

whether Defendants are liable for all damages claimed hereunder,

including but not limited to compensatory, liquidated and statutory damages,
interests, costs and disbursements and attorneys’ fees; and
h.

whether Defendants should be enjoined from such violations of the FLSA

in the future.
35.

Plaintiffs know of no difficulty that will be encountered in the management of this

litigation that would preclude its maintenance as a collective action.
36.

With respect to Defendants’ violations of the NYLL, Plaintiffs bring this lawsuit against

Defendant on their own behalf for their damages resulting from Defendants’ violation of the
NYLL on or after December 16, 2010 (six years before the filing of this Complaint) (the “NYLL
Claims Period”).
STATEMENT OF FACTS
37.

On or about October 15, 2015, Defendants stopped paying wages to its employees.

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38.

Defendants have bandied about various excuses for their failure to pay wages, but

nevertheless continued in their refusal to pay wages.
39.

Defendants variously apologized for missed wage payments and promised to repay back

wages due, but nonetheless continued in their refusal to pay wages.
40.

Upon information and belief, from October 15, 2015 to present, Defendants’ employees

have either gone without pay altogether, or, at best, have received a mere fraction of their wages.
David DeKeyser
41.

DeKeyser was employed as the General Manager, CMJ College Radio Network from

May 27, 2015 until May 9, 2016. DeKeyser was responsible for establishment of a new vision
for Defendants and building a team to do so.
42.

At the time of his hire, DeKeyser was presented with, and executed an offer letter stating,

inter alia, that his salary was $80,000 per year to be paid in 26 equal payments at the mid point
and final day of each month.
43.

Throughout DeKeyser’s employment with Defendants, DeKeyser worked at least 45

hours per week, and often as many as sixty hours per week.
44.

DeKeyser received regular paychecks from Defendants from the start of his employment

until on or about October 15, 2015. From October 15, 2015 through May 9, 2016, irrespective of
his hours worked, DeKeyser was not paid.
45.

Between October 15, 2015 and May 9, 2016 Defendants did send DeKeyser some checks,

but indicated that these checks were not to be cashed as there were insufficient funds and that
Defendants would let DeKeyser know when the checks could be cashed. To date, that time
never came.

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46.

Throughout DeKeyser’s employment with Defendants, the Defendants willfully failed to

pay DeKeyser for hours worked, including, hours worked beyond 40 hours in a workweek, in
violation of the FLSA, the NYLL and regulations promulgated thereunder.
47.

DeKeyser’s work was performed in the normal course of Defendants’ business and was

integrated into the business of Defendants.
48.

At all relevant times herein, DeKeyser was an employee engaged in commerce and/or in

the production of goods for commerce, as defined in the FLSA, the NYLL and their respective
implementing regulations.
49.

DeKeyser did not have the power to hire or fire employees or to set wages or schedules.

50.

Defendants were aware of the fact that DeKeyser was working and not receiving

compensation, and that DeKeyser was working over 40 hours per week.
51.

Upon information and belief, while Defendants employed DeKeyser, and throughout all

relevant time periods, Defendants failed to post or keep a posted notice explaining the minimum
wage and overtime pay rights provided by the FLSA and NYLL.
52.

Defendants benefitted from the work that DeKeyser performed.

53.

Upon information and belief, throughout all relevant time periods, Defendants willfully

failed to provide at the workplace, or otherwise provide to DeKeyser, the proper notices or
posting regarding the applicable wage and hour requirements, including overtime pay rights, as
required by the FLSA and NYLL.
54.

Throughout all relevant time periods, Defendants failed to provide DeKeyser with any

written notice of his hours, rate of pay, payday or other terms of employment in violation of the
NYLL §191(1).

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55.

Upon information and belief, throughout all relevant time periods, Defendants failed to

provide DeKeyser with wage statements in violation of the NYLL § 191(5).
56.

Throughout DeKeyser’s employment, and, upon information and belief until the

commencement of this action, Defendants have failed to maintain accurate and sufficient time
records.
57.

Defendants willfully and repeatedly have violated the record keeping requirements of the

FLSA and the NYLL, in that Defendants failed to make, keep and preserve adequate and
accurate records of their employees and of the wages, hours and other conditions of employment
which they were required to maintain.

Specifically, Defendants failed to make, keep and

preserve adequate records of wages paid with respect to DeKeyser and any records Defendants
did keep failed to show adequately and accurately, among other things, the hours worked by
DeKeyser each workday, the hours worked each workweek, the total earnings for each
workweek, and/or the total overtime compensation for each workweek.
58.

From October 15, 2015 through May 9, 2016, Defendants failed to comply with 29

U.S.C. §§ 201-209, as well as applicable provisions of the NYLL, in that DeKeyser performed
services and labor for Defendants for which Defendants made no provision to pay DeKeyser
compensation to which he was lawfully entitled.
59.

Defendants have engaged in a widespread pattern, policy and practice of violating the

FLSA and NYLL, as described in this Complaint.
60.

From October 15, 2015 through May 9, 2016, Defendants did not keep or maintain

records pertaining to DeKeyser, and did not pay him on a regular basis (or, frankly, at all) as
required by the FLSA and NYLL.
Jessica Levy

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61.

Levy was employed as the Social Media Manager from July 27, 2015 until June 13, 2016.

Levy was responsible for developing Defendant’s social media platform.
62.

At the time of her hire, Levy was promised a salary of $80,000 per year to be paid in 26

equal payments at the mid point and final day of each month.
63.

Throughout Levy’s employment with Defendants, Levy worked at least 45 hours per

week, and often as many as sixty hours per week.
64.

Levy received regular paychecks from Defendants from the start of her employment until

on or about October 15, 2015. From October 15, 2015 through June 13, 2016, Levy was not paid
a regular salary. Instead, she occasionally received, at most, partial payment. In total she is
owed $38,671.97 in unpaid wages, irrespective of liquidated damages, interest, attorneys, fees or
costs.
65.

Throughout Levy’s employment with Defendants, the Defendants willfully failed to pay

Levy for hours worked, including, hours worked beyond 40 hours in a workweek, in violation of
the FLSA, the NYLL and regulations promulgated thereunder.
66.

Levy’s work was performed in the normal course of Defendants’ business and was

integrated into the business of Defendants.
67.

At all relevant times herein, Levy was an employee engaged in commerce and/or in the

production of goods for commerce, as defined in the FLSA, the NYLL and their respective
implementing regulations.
68.

Levy did not have the power to hire or fire employees or to set wages or schedules.

69.

Defendants were aware of the fact that Levy was working and not receiving

compensation, and that Levy was working over 40 hours per week.

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70.

Upon information and belief, while Defendants employed Levy, and throughout all

relevant time periods, Defendants failed to post or keep a posted notice explaining the minimum
wage and overtime pay rights provided by the FLSA and NYLL.
71.

Defendants benefitted from the work that Levy performed.

72.

Upon information and belief, throughout all relevant time periods, Defendants willfully

failed to provide at the workplace, or otherwise provide to Levy, the proper notices or posting
regarding the applicable wage and hour requirements, including overtime pay rights, as required
by the FLSA and NYLL.
73.

Throughout all relevant time periods, Defendants failed to provide Levy with any written

notice of her hours, rate of pay, payday or other terms of employment in violation of the NYLL
§191(1).
74.

Upon information and belief, throughout all relevant time periods, Defendants failed to

provide Levy with wage statements in violation of the NYLL § 191(5).
75.

Throughout Levy’s employment, and, upon information and belief until the

commencement of this action, Defendants have failed to maintain accurate and sufficient time
records.
76.

Defendants willfully and repeatedly have violated the record keeping requirements of the

FLSA and the NYLL, in that Defendants failed to make, keep and preserve adequate and
accurate records of their employees and of the wages, hours and other conditions of employment
which they were required to maintain.

Specifically, Defendants failed to make, keep and

preserve adequate records of wages paid with respect to Levy and any records Defendants did
keep failed to show adequately and accurately, among other things, the hours worked by Levy

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each workday, the hours worked each workweek, the total earnings for each workweek, and/or
the total overtime compensation for each workweek.
77.

Upon information and belief, throughout all relevant time periods, Defendants willfully

failed to provide at the workplace, or otherwise provide to Levy, the proper notices or posting
regarding the applicable wage and hour requirements as required by the FLSA and NYLL.
78.

Throughout all relevant time periods, Defendants failed to provide Levy with any written

notice of her hours, rate of pay, payday or other terms of employment in violation of the NYLL
§191(1).
79.

Upon information and belief, throughout all relevant time periods, Defendants failed to

provide Levy with wage statements in violation of the NYLL § 191(5).
80.

Throughout Levy’s employment, and, upon information and belief until the

commencement of this action, Defendants have failed to maintain accurate and sufficient time
records.
81.

Defendants willfully and repeatedly have violated the record keeping requirements of the

FLSA and the NYLL, in that Defendants failed to make, keep and preserve adequate and
accurate records of their employees and of the wages, hours and other conditions of employment
which they were required to maintain.

Specifically, Defendants failed to make, keep and

preserve adequate records of wages paid with respect to Levy and any records Defendants did
keep failed to show adequately and accurately, among other things, the hours worked by Levy
each workday, the hours worked each workweek, the total earnings for each workweek, and/or
the total overtime compensation for each workweek.
82.

From October 15, 2015 through June 13, 2016, Defendants failed to comply with 29

U.S.C. §§ 201-209, as well as applicable provisions of the NYLL, in that Levy performed

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services and labor for Defendants for which Defendants made no provision to pay Levy
compensation to which she was lawfully entitled.
83.

Defendants have engaged in a widespread pattern, policy and practice of violating the

FLSA and NYLL, as described in this Complaint.
84.

From October 15, 2015 through June 13, 2016, Defendants did not keep or maintain

records pertaining to Levy, and did not pay her on a regular basis as required by the FLSA and
NYLL.
COUNT I
By Plaintiffs and All Collective Action Members
Fair Labor Standards Act – Failure to Pay Wages
85.

Plaintiffs, on behalf of themselves and all Collective Action Members, repeat, reallege,

and incorporate by reference the foregoing allegations as if set forth fully and again herein.
86.

At all relevant times, Defendants employed Plaintiffs and all Collective Action Members

within the meaning of the FLSA.
87.

At all relevant times, Plaintiffs and all Collective Action Members were employed by

Defendants in an enterprise engaged in commerce within the meaning of the FLSA with annual
gross revenues of not less than $500,000.00.
88.

Throughout the term of their employment, Plaintiff DeKeyser and all Collective Action

Members worked over 45 hours per week.
89.

Defendants failed to pay Plaintiffs and all Collective Action Members the applicable

minimum wage in violation of the FLSA.
90.

Defendants had no reasonable grounds for believing that their failure to pay Plaintiffs’

and Collective Action Members’ wages was not a violation of the FLSA. Defendants’ failure to
pay Plaintiffs was willful and not in good faith.

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91.

Plaintiffs and all Collective Action Members have been damaged in an amount to be

determined at trial, and are entitled to recovery of such amounts, liquidated damages equal to
100% of their unpaid wages, interest, attorneys’ fees and costs.
COUNT II
By Plaintiffs and All Collective Action Members
Fair Labor Standards Act – Failure to Pay Overtime Wages
92.

Plaintiffs and all Collective Action Members repeat, reallege, and incorporate by

reference the foregoing allegations as if set forth fully and again herein.
93.

At all relevant times, Defendants employed Plaintiffs and all Collective Action Members

within the meaning of the FLSA.
94.

At all relevant times, Plaintiffs and all Collective Action Members were employed by

Defendants in an enterprise engaged in commerce within the meaning of the FLSA with annual
gross revenues of not less than $500,000.00.
95.

Throughout the term of their employment, Plaintiffs worked 45 hours per week.

96.

Throughout the term of their employment, all Collective Action Members worked over

40 hours per week.
97.

Defendants failed to pay Plaintiffs and all Collective Action Members overtime

compensation at a rate of not less than one and a half (1 ½) times their regular rate of pay for
each hour of work over forty (40) hours per week in violation of the FLSA.
98.

Defendants had no reasonable grounds for believing their failure to pay Plaintiffs and all

Collective Action Members overtime compensation was not a violation of the FLSA.
Defendants’ failure to pay Plaintiffs and all Collective Action Members’ overtime compensation
was willful and not in good faith.

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99.

Plaintiffs and all Collective Action Members have been damaged in an amount to be

determined at trial and is entitled to recovery of such amounts, liquidated damages equal to
100% of his unpaid overtime, interest, attorneys’ fees, and costs.
COUNT III
By Plaintiffs
New York Labor Law – Failure to Pay Wages
100.

Plaintiffs repeat, reallege, and incorporate by reference the foregoing allegations as if set

forth fully and again herein.
101.

At all relevant times, Defendants employed Plaintiffs within the meaning of the NYLL.

102.

At all relevant times, Defendants acted as employers under the NYLL

103.

Throughout the term of Plaintiffs’ employment, Defendants knowingly suffered or

permitted Plaintiffs to work significant time without payment of wages.
104.

Defendants’ withholding of wages was willful, having been done knowingly, deliberately

and voluntarily in disregard of their obligations.
105.

Plaintiffs have been damaged in an amount to be determined at trial, and are entitled to

recovery of such amounts, liquidated damages equal to 100% of their unpaid wages, interest,
attorneys’ fees and costs.
COUNT IV
By Plaintiffs
New York Labor Law – Failure to Pay Overtime Wages
106.

Plaintiffs repeat, reallege, and incorporate by reference the foregoing allegations as if set

forth fully and again herein.
107.

At all relevant times, Defendants employed Plaintiffs within the meaning of the NYLL.

108.

At all relevant times, Defendants acted as employers under the NYLL

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109.

Throughout the term of Plaintiffs’ employment, Defendants knowingly suffered or

permitted them to work significant time without payment of wages.
110.

Throughout the term of their employment, Plaintiffs regularly worked at least 45 hours

per week.
111.

Defendants failed to pay Plaintiffs’ overtime compensation at a rate of one and a half (1

½) times their regular rate of pay for each hour of work over forty (40) hours per week in
violation of the NYLL and the implementing regulations of the New York State Department of
Labor.
112.

Defendants had no reasonable grounds for believing that their failure to pay Plaintiffs’

overtime compensation was not a violation of the NYLL. Defendants’ failure to pay Plaintiffs
overtime compensation was willful and not in good faith.
113.

Plaintiffs have been damaged in an amount to be determined at trial, and are entitled to

recovery of such amounts, liquidated damages equal to 100% of their overtime owed, interest,
attorneys’ fees and costs.
COUNT V
By Plaintiffs
New York Labor Law §195 (1) and (3)
114.

Plaintiffs repeat, reallege, and incorporate by reference the foregoing allegations as if set

forth fully and again herein.
115.

Defendants willfully failed to supply Plaintiffs with the required notice pursuant to the

NYLL, violating New York Labor Law §195(1).
116.

Defendants willfully failed to supply Plaintiffs with the statements required under the

NYLL with every payment of wages, violating New York Labor Law §195(3).

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117.

Due to Defendants’ violations of the New York Labor Law §195(1), Plaintiffs are each

entitled to recover from Defendants fifty dollars ($50.00) for each work week that the violations
occurred up to a total of five thousand dollars ($5,000.00), as provided for by New York Labor
Law §198(1)-b, plus reasonable attorneys’ fees, costs, injunctive and declaratory relief.
118.

Due to Defendants’ violations of New York Labor Law §195(3), Plaintiffs are each

entitled to recover from Defendants one hundred dollars ($100.00) for each work week that the
violations occurred up to a total of five thousand dollars ($5,000.00) per plaintiff, as provided for
by the New York Labor Law §198(1)-d, reasonable attorneys’ fees, costs, injunctive and
declaratory relief.

Despite due demand, Defendants have failed or refused to pay all

compensation due to Plaintiffs for said services, thereby unjustly enriching themselves to
Plaintiffs’ detriment, and causing Plaintiffs to suffer damages in an amount to be determined at
trial, plus interest.
COUNT VI
By Plaintiffs
Unjust Enrichment
119.

Plaintiffs repeat, reallege, and incorporate by reference the foregoing allegations as if set

forth fully and again herein.
120.

As described, supra, Plaintiffs provided valuable services to Defendants throughout their

tenure.
121.

Defendants accepted Plaintiffs’ services with the knowledge that they would have to

compensate Plaintiffs for such services.
122.

Defendants failed to pay Plaintiffs the amounts due to them.

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123.

By reason of the foregoing, Plaintiffs have been damaged and are entitled to

compensation for the reasonable value of her services in an amount to be determined at trial, plus
interest and costs.
COUNT VII
By Plaintiffs
Quantum Meruit
124.

Plaintiffs repeat, reallege, and incorporate by reference the foregoing allegations as if set

forth fully and again herein.
125.

As described, supra, Plaintiffs provided valuable services to Defendants throughout their

tenure.
126.

Defendants accepted Plaintiffs’ services with the knowledge that they would have to

compensate Plaintiffs for such services.
127.

Defendants failed to pay Plaintiffs the amounts due to them.

128.

By reason of the foregoing, Plaintiffs have been damaged and is entitled to compensation

for the reasonable value of their services in an amount to be determined at trial, plus interest and
costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:
(a)

Enter a declaratory judgment that the acts and practices of Defendants complained

of herein are in violation of the laws of the United States and the State of New York;
(b)

Enjoin and permanently restrain the Defendants’ violations of the laws of the

United States, and the State of New York;
(c)

Designation of this action as a collective action on behalf of the Collective Action

Plaintiffs and prompt issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated
Plaintiffs of an FLSA Opt-In Class, apprising them of the pendency of this action, permitting
20

Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 21 of 26

them to assert timely FLSA claims in this action by filing individual Consents to Sue pursuant to
29 U.S.C. §216(b), and appointing Plaintiffs and their counsel to represent the Collective Action
Plaintiffs;
(d)

A compensatory award of unpaid compensation, including overtime for hours

over forty in a week at the statutory overtime rate, due under the FLSA and New York Labor
Law to each plaintiff;
(e)

An award of liquidated damages as a result of Defendants’ willful failure to pay

compensation including overtime compensation pursuant to 29 U.S.C. §216 and New York
Labor Law to each plaintiff;
(f)

one hundred dollars for each work week that the violations of NYLL § 195(3)

occurred or continue to occur, or a total of five thousand dollars, as provided for by NYLL §
198(1)-d to each plaintiff;
(g)

fifty dollars for each work week that the violations of NYLL § 195(1) occurred or

continue to occur, or a total of five thousand dollars each, as provided for by NYLL § 198(1)-b
to each plaintiff;
(h)

Judgment for interest (including pre-judgment interest);

(i)

Judgment awarding Plaintiffs the costs of this action, together with reasonable

attorneys’ fees; and
(j)

Such other and further relief as to this Court appears necessary and proper.
JURY DEMAND

Plaintiffs demands a trial by jury on all issues so triable.

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Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 22 of 26

Dated: New York, New York
_________, 2016
Respectfully Submitted,
GRANOVSKY & SUNDARESH PLLC

By:__

22

_________
Alexander Granovsky (AG-6962)
48 Wall Street, 11th Floor
New York, NY 10005
Tel: (646) 524-6001
ag@g-s-law.com
Counsel for Plaintiffs

Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 23 of 26

EXHIBIT A

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Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 24 of 26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
DAVID DEKEYSER and JESSICA LEVY
:
:
: Civil Action No.:
Plaintiffs
:
:
v.
: DAVID DEKEYSER CONSENT
: CONSENT TO BE A PARTY
ABACULI MEDIA, INC., CMJ HOLDINGS, and : PLAINTIFF
ADAM KLEIN, individually.
:
:
Defendants.
:
__________________________________________:
DAVID DEKEYSER states:
1. I am a plaintiff in the above-captioned action. My address is 385 Graham Ave, Brooklyn,
NY 11211.
2. Pursuant to 29 USC §216(b), this action asserts claims under the Fair Labor Standards
Act (“FLSA”), 29 USC §201 et seq. on behalf of myself and all other employees
similarly situated. Pursuant to 29 USC§§2016(b) and 256, I consent to being a party
plaintiff in this action and to the filing and prosecution of the above referenced FLSA
claims on my behalf and on behalf of all other employees similarly situated.

__________________________
David DeKeyser

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Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 25 of 26

EXHIBIT B

25

Case 1:16-cv-09697 Document 1 Filed 12/16/16 Page 26 of 26