Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 1 of 22   PageID 24




                  IN THE UNITED STATES DISTRICT COURT
                 FOR THE WESTERN DISTRICT OF TENNESSEE

  NEAL HYNEMAN, on behalf of himself    CIVIL ACTION NO.
  and all others similarly situated,    2:21-cv-02427-TLP-cg

                    Plaintiff
  Versus

  AUTOZONE, INC.,

                    Defendant

                      MEMORANDUM IN SUPPORT OF
                MOTION TO DISMISS CLASS ACTION COMPLAINT




 {N4416318.1}
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 2 of 22                       PageID 25




          This memorandum is submitted on behalf of Defendant AutoZoners, LLC (“AutoZone”),

 incorrectly referred to in the Class Action Complaint as AutoZone, Inc., in support of its Motion

 to Dismiss Class Action Complaint.

                               INTRODUCTION AND SUMMARY

          The Class Action Complaint (“Complaint”) (Rec. Doc. 1) brought by Neal Hyneman

 (“Plaintiff”) should be dismissed for either of two reasons. First, the Complaint is essentially a

 copycat of another putative class action complaint filed six months earlier in the United States

 District Court for the Eastern District of New York, Keith Confusione and Randolph Brannigan,

 on behalf of themselves and all others similarly situated v. AutoZoners, LLC, Case no.: 2:21-cv-

 00001-JMA-AYS. The two cases involve similar, if not identical, parties and issues. Both cases

 are putative class actions brought on behalf of classes of New York “manual workers” employed

 by AutoZone or one of its subsidiaries based on an alleged violation of a unique New York

 “frequency of payment” wage provision in New York Labor Law (“NYLL”) § 191. 1 Thus, as the

 Sixth Circuit has recognized under nearly identical circumstances, the “first-to-file” rule applies.

 This Court has discretion to dismiss this case, but at the very least it should be transferred to the

 Eastern District of New York or stayed pending resolution of that first filed action in New York.

          Second, and in the alternative, this matter should be dismissed for failure to state a claim

 under FRCP 12(b)(6). Plaintiff asserts a NYLL § 191 frequency-of-pay claim based on the fact

 that AutoZone paid them bi-weekly, instead of weekly. However, Plaintiff’s § 191 claims fails as

 a matter of law because the NYLL does not provide a private right of action for wages that are

 fully paid albeit not on a weekly basis. See NYLL § 198(1)(1-a) (“In any action instituted in the


          1
          NYLL § 191 states, in part, that “[a] manual worker shall be paid weekly and not later
 than seven calendar days after the end of the week in which the wages are earned. . .” NYLL
 § 191(1)(a)(i).



 {N4416318.1}                                      1
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 3 of 22                       PageID 26




 courts upon a wage claim by an employee … in which the employee prevails, the court shall allow

 such employee to recover the full amount of any underpayment ….”) (emphasis added). Thus,

 Plaintiff has no private right of action under NYLL § 191.

                                          BACKGROUND

 I. THE PRESENT ACTION

          The Complaint in the present matter was filed by Plaintiff on June 24, 2021 against

 AutoZone. Rec. Doc. 1. The gist of the Complaint is that “New York Law requires companies to

 pay their manual workers on a weekly basis unless they receive an express authorization to pay on

 a semi-monthly basis from the New York State Department of Labor Commissioner.” Complaint,

 ¶ 2. According to Plaintiff, AutoZone “has violated and continues to violate this law by paying its

 manual workers every other week rather than on a weekly basis.” Id. at ¶ 5.

          Plaintiff alleges that he was “employed by Defendant as a commercial driver from

 September 2015 to May 2021 at an AutoZone location in Evans Mills, New York.” Id. at ¶ 11. 2

 Plaintiff states that “[a]pproximately 80% of Plaintiff’s job responsibilities at AutoZone included

 manual labor, including tasks such as shelving stock, pulling and delivering parts for orders, and

 cleaning and organizing the store. Plaintiff was paid every other week, rather than weekly, during

 the entirety of his employment with Defendant.” Id.

          Plaintiff brings his claims both individually and as a class representative. He seeks to

 represent a class “defined as all persons who worked as manual workers in their employment for

 Defendant in the State of New York from six years preceding this Complaint to the date of class

 notice in this action (the ‘Class’).” Id. at ¶ 12. Plaintiff claims that the key common questions for



          2
          Plaintiff noticeably does not allege his place of residence or citizenship, but presumably
 it is New York inasmuch as that is where he alleges he was employed by AutoZone.



 {N4416318.1}                                      2
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 4 of 22                     PageID 27




 class certification are “whether [AutoZone] was required to pay class members on a weekly basis,

 whether class members were paid on a weekly basis, and whether Defendant violated NYLL

 § 191.” Complaint, ¶ 14.

          The Complaint has one count entitled “New York Labor Law – Failure to Pay Timely

 Wages.” Complaint, p. 4. In the count, Plaintiff alleges that AutoZone “failed to pay Plaintiff and

 the Class on a timely basis as required by NYLL § 191(1)(a).” Id. at ¶ 20. As remedies, Plaintiff

 seeks certification under FRCP 23, an order declaring AutoZone’s conduct a violation of the law,

 damages, interest and attorney’s fees. Id. at Prayer for Relief.

 II. THE FIRST-FILED NEW YORK ACTION

          On January 2, 2021, about six months before the present action was filed, Keith Confusione

 and Randolph Brannigan filed an essentially identical putative class action in the United States

 District Court for the Eastern District of New York against AutoZoners, LLC (“AutoZoners”). 3

 See Confusione v. AutoZoners, LLC., Civil Action No. 21-0001 (E.D.N.Y.) (the “New York

 Action”), attached as Exh. 2.

          Like Plaintiff in the present action, the Confusione plaintiffs bring the New York Action

 because of AutoZoners’ alleged “violations of New York Labor Law § 191 . . .” Exh. 2, ¶ 1.

 “Defendant [allegedly] failed to properly pay Plaintiffs and other hourly-paid Manual Workers

 their wages within seven calendar days after the end of the week in which these wages were earned.

 Thus, Defendant [allegedly] failed to provide timely wages to Plaintiffs and other similar Manual

 Workers.” Exh. 2, ¶ 8.

          Mr. Confusione and Mr. Brannigan both allege that they are residents of New York, that



          3
          AutoZoners is a subsidiary of AutoZone. See Declaration of Patrick Johnson, attached as
 Exh. 1, at ¶ 4.



 {N4416318.1}                                      3
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 5 of 22                      PageID 28




 they were each employed by AutoZoners as a “manual worker,” and that AutoZoners failed to pay

 them “‘on a weekly basis and not later than seven calendar days after the end of the week in which

 the wages are earned” as required by New York Labor Law § 191.’” Exh. 2, ¶ ¶ 13-14, 16-17, 20-

 24. “Instead, Defendant paid Plaintiff and similarly situated persons who have worked in hourly-

 paid positions as sales clerks, delivery drivers and maintenance technicians on a bi-weekly basis

 pursuant to its payroll policy in violation of New York Labor Law § 191.” Id. at ¶ 24.

          Mr. Confusione and Mr. Brannigan also bring their claims individually and on behalf of a

 class “consisting of all persons who are currently, or have been, employed by the Defendant in

 hourly-paid positions such as retail-sales clerks, delivery drivers and maintenance technicians in

 the State of New York at any time during the six (6) years prior to the filing of this Complaint . .

 .” Id. at ¶ 26. They define the common questions for certification as whether “Defendant paid

 Plaintiff and Class Members on a bi-weekly or semi-monthly basis in violation of Labor Law

 section 191 and the nature and extent of the Class-wide injury and the appropriate measure of

 damages for the class.” Id. at ¶ 30.

          The New York Complaint contains two claims for relief – the first of which is identical to

 the lone claim in the present action. The first clam is entitled “Frequency of Payment Violation,”

 and alleges that AutoZoners violated NYLL § 191 by failing to pay “Plaintiffs and Class Members

 on a weekly basis.” Exh. 2, ¶ 42. The New York Complaint also contains a second claim that is

 not at issue in the present Complaint (alleging a “wage statement” violation under NYLL

 § 195(1)). Exh. 2, ¶ 45. As remedies, Mr. Confusione and Mr. Brannigan seek class certification

 under Rule 23, a declaratory judgment that AutoZoners’ practices are unlawful, damages, interest

 and attorney’s fees. Exh. 2, Prayer for Relief.




 {N4416318.1}                                      4
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 6 of 22                           PageID 29




                                              ARGUMENT

 I. THE COMPLAINT SHOULD BE DISMISSED UNDER THE “FIRST-TO-FILE”
    RULE

          A. First-to-File Standards

          The “first-to-file” rule is firmly established in the Sixth Circuit, particularly in the context

 of competing or overlapping putative class actions such as exists in the present circumstances. In

 Baatz v. Columbia Gas Trans., LLC, 814 F.3d 785 (6th Cir. 2016), the Sixth Circuit set out the

 standards that should be applied for the first-to-file rule. It began by describing the purpose of the

 rule:

          The first-to-file rule is a prudential doctrine that grows out of the need to manage
          overlapping litigation across multiple districts. Simply stated, it provides that,
          "when actions involving nearly identical parties and issues have been filed in two
          different district courts, ‘the court in which the first suit was filed
          should generally proceed to judgment.'" Certified Restoration Dry Cleaning
          Network, LLC v. Tenke Corp., 511 F.3d 535, 551 (6th Cir. 2007) . . .; see Colo.
          River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236,
          47 L.Ed.2d 483 (1976) ("As between federal district courts, ... the general principle
          is to avoid duplicative litigation."). This rule "encourages comity among federal
          courts of equal rank." Zide Sport Shop, 16 Fed. Appx. at 437 . . . . It also conserves
          judicial resources by minimizing duplicative or piecemeal litigation, and protects
          the parties and the courts from the possibility of conflicting results. . . .

 814 F.3d at 79 (emphasis in original); see also Heyman v. Lincoln Nat’l Life Ins. Co., 781

 Fed.Appx. 463, 476 (6th Cir. Jul. 18, 2019) (same). The Baatz court then established a three-part

 test to govern practical application of the rule:

           . . . courts generally evaluate three factors: (1) the chronology of events, (2) the
           similarity of the parties involved, and (3) the similarity of the issues or claims at
           stake.

 814 F.3d at 789; see also Heyman, 781 Fed.Appx. at 476; Collier v. Med-Care Investment, 2018

 U.S. Dist. LEXIS 87519, *8 (M.D. Tenn. May 24, 2018).

          Finally, Baatz explained that, even if the three factors are met, the court has discretion not

 to apply the first-to-file rule if certain equitable considerations weigh against it:


 {N4416318.1}                                        5
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 7 of 22                        PageID 30




                  If these three factors support application of the rule, the court must
                  also determine whether any equitable considerations, such as
                  evidence of ‘inequitable conduct, bad faith, anticipatory suits [or]
                  forum shopping,’ merit not applying the first-to-file rule in a
                  particular case.

 814 ochang@example.org. However, the Sixth Circuit later classified these equitable considerations as “rare

 or extraordinary.” Heyman, 781 Fed.Appx. at 478. Indeed, courts have a “duty” to apply the first-

 to-file rule when appropriate. Cook v. E.I. DuPont de Nemours & Co., 2017 U.S. Dist. LEXIS

 122436, *18 (M.D. Tenn. Aug. 3, 2017).

          B. Application of the Three Factor Test to This Case

          Many courts within the Sixth Circuit have applied the first-to-file rule to either dismiss,

 transfer or stay second-filed actions, particularly in the context of competing putative class

 actions. 4 Indeed, this Court addressed the nearly identical circumstance in Mitchell v. Wells Fargo

 Bank, N.A., 2020 U.S. Dist. LEXIS 238542 (W.D. Tenn. Dec. 18, 2020), where this Court applied

 the first-to-file rule, transferring a second-filed putative class action from this district to the

 Western District of Pennsylvania.

          The three-part test supports application of the first-to-file rule here:

          Chronology. For the first part of the test, relating to the chronology of events, “‘the dates

 to compare for chronology purposes of the first-to-file rule are when the relevant complaints are

 filed.’” Mitchell, 2020 U.S. Dist. LEXIS 238542 at *6 (quoting Baatz, 814 F.3d at 790). In the

 present circumstances, this factor weighs in favor of applying the first-to-file rule inasmuch as the



          4
          See, e.g., Samataro v. Keller Williams Realty, Inc., 2021 U.S. Dist. LEXIS 12027, *7
 (E.D. Mich. Jan. 22, 2021); Collier, 2018 U.S. Dist. LEXIS 87519; Cook, 2017 U.S. Dist. LEXIS
 122436 at *5; McLaughlin Chiropractic Assoc. v. McKesson Corp., 2013 U.S. Dist. LEXIS 35263,
 *4 (E.D. Tenn. Mar. 14, 2013); Fryda v. Takeda Pharm, N.A., Inc., 2011 U.S. Dist. LEXIS 42221,
 *12 (N.D. Ohio Apr. 13, 2011); Long v. CVS Caremark Corp., 2010 U.S. Dist. LEXIS 3150, *3
 (N.D. Ohio Jan. 14, 2010).



 {N4416318.1}                                        6
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 8 of 22                          PageID 31




 New York Action was undeniably filed approximately six months before the Complaint in the

 present action. See also Heyman, 781 Fed. Appx. at 476 (favoring the first-to-file rule when the

 copycat lawsuit was filed six months after the first lawsuit).

          Parties. The second factor examines the “similarity of the parties.” This factor “does not

 require that the parties in the competing lawsuits be identical.” Baatz, 814 F.3d at 790 (emphasis

 in original). “[T]hey just need to overlap.” Mitchell, 2020 U.S. Dist. LEXIS 238542 at *7.

 Particularly in the class action context, courts look at “‘whether there is a substantial overlap’”

 between the putative classes in the two actions. Id.

          This requirement is met here. The named plaintiffs bring their claims in the same capacities

 in both cases. They bring their claims as New York “manual workers” who allegedly were not paid

 as frequently as required by NYLL § 191. Complaint, ¶¶ 2, 14, 20; Exh. 2, ¶¶ 7, 9, 24, 31.

 Moreover, the class definitions in the two cases do not merely overlap, they appear to be essentially

 the same (New York manual workers employed by AutoZone or AutoZoners over the preceding

 six years). Complaint, ¶ 12; Exh. 2, ¶¶ 26, 28, 29. Likewise, the defendants in the two actions are,

 from a practical standpoint, identical—AutoZone in the present case, and one its subsidiaries in

 the New York Action. Thus, the “similarity of the parties” factor is clearly met.

          Issues and Claims. The third factor looks at the “similarity of the issues or ochang@example.org.”

 As with the test for the “similarity of the parties,” the “issues or claims” need not be identical for

 the first-to-file rule to apply. The issues or claims merely should “substantially overlap.” Heyman,

 781 Fed. Appx. at 477; Mitchell, 2020 U.S. Dist. LEXIS 238542 at *11.

          The present action only has one claim – the failure to timely pay wages under NYLL § 191.

 Complaint, ¶¶ 19-21. This is exactly the same as the first claim in the New York Action. Exh. 2,

 ¶¶ 45-46. In addition, the Complaints in both cases allege the same common questions for purposes




 {N4416318.1}                                        7
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 9 of 22                         PageID 32




 of class certification (that is, whether AutoZone and AutoZoners paid the class members on a bi-

 weekly basis in violation of NYLL § 191). Complaint, ¶ 14; Exh. 2, ¶ 30. The issues and the

 claims in the two actions are the same. Thus, the three-factor test is satisfied here.

          C. No Equitable Considerations Weigh Against Application of the First-to-File Rule

          The equitable considerations focus on whether AutoZone did something improper that

 would prevent application of the first-to-file rule (such as “‘extraordinary circumstances,

 inequitable conduct, bad faith, anticipatory suits, and forum shopping’”). Mitchell, 2020 U.S. Dist.

 LEXIS 238542 at *12. Clearly, AutoZone did nothing of the sort. Indeed, if anything, Plaintiff

 seems to have gone out of his way to file suit here instead of in New York which has the greatest

 connection to the allegations (i.e., New Yorkers suing over their employment in New York on a

 unique New York legal provision). See Heyman, 781 Fed. Appx. at 478 (“Here, no equitable

 considerations render application of the rule improper. Indeed, it is [plaintiff], not [defendant],

 who engaged in forum shopping . . .”). Put simply, all equitable considerations weigh in favor of

 applying the first-to-file rule in this proceeding.

          D. This Court Has Discretion to Dismiss This Case

          As the remedy under first-to-file rule, courts have the discretion to either dismiss, transfer

 or stay the second filed action. Mitchell, 2020 U.S. Dist. LEXIS 238542 at *13. In Baatz, the court

 emphasized that “[p]roviding the district court discretion to dismiss a duplicative action fits with

 the purposes of the first-to-file rule and the need for the district court to have discretion in

 managing its docket.” 814 F.3d at 793; see also Long, 2010 U.S. Dist. LEXIS 3150 at *12

 (dismissing the second filed action under the first-to-file rule).

          The Baatz court determined that dismissal was inappropriate there because dismissal

 “could adversely affect” the plaintiff’s rights, so the court remanded for the district court to

 determine an alternative remedy. 814 ochang@example.org. This Court followed a similar path in Mitchell,


 {N4416318.1}                                          8
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 10 of 22                         PageID 33




 where the Court decided to transfer the second filed action instead of dismissing it. 2020 U.S. Dist.

 LEXIS 238542 at *14.

          AutoZone acknowledges that dismissal is not appropriate in every circumstance, but if ever

 it were appropriate (as Baatz recognizes), this is the case. This case is effectively a copycat of the

 New York Action. Plaintiff would not be prejudiced by dismissal because he falls within the

 putative class definition in the first filed New York Action. There are no extenuating circumstances

 that weigh against dismissal.

          Alternatively, AutoZone asks that this case be transferred to the Eastern District of New

 York or stayed pending resolution of the claims in the New York Action.

 II. IN THE ALTERNATIVE, THE COMPLAINT SHOULD BE DISMISSED FOR
     FAILURE TO STATE A CLAIM

          Out of an abundance of caution, and in the alternative, AutoZone also moves to dismiss

 the Complaint for failure to state a claim under FRCP 12(b)(6).

          A. The 12(b)(6) Standard

          To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient

  facts which, if accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v.

  Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

  “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

  statements, do not suffice.” Id. In other words, a complaint must offer “more than an unadorned,

  the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678. Moreover,

  "[p]lausibility is not the same as probability, but rather 'asks for more than a sheer possibility that

  a defendant has acted unlawfully.'" Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,

  369 (6th Cir. 2011) ("CBER") (quoting Iqbal, 556 U.S. at 678). And "[a]lthough a court must

  construe a complaint's allegations in favor of the plaintiff, . . . and must accept all factual



 {N4416318.1}                                       9
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 11 of 22                      PageID 34




  allegations as true, . . . the court need not accept legal conclusions or unwarranted factual

  inferences." Debevec v. GE, 121 F.3d 707, *2 [published in full-text format at 1997 U.S. App.

  LEXIS 21630] (6th Cir. 1997) (table) (internal citations omitted).

          B. Plaintiff Cannot State A Section 191 Frequency-Of-Pay Claim

          Plaintiff claims he is a “manual worker” within the meaning of Section 191(1)(a)(i) of the

 NYLL, and therefore AutoZone violated Section 191 by paying him on a bi-weekly—as opposed

 to a weekly—basis. Complaint, ¶¶ 2, 14, 20. Plaintiff does not claim to have suffered - and does

 not claim to seek - any actual damages (as none exist), but instead requests liquidated damages,

 attorneys’ fees and costs, and interest. Complaint, ¶¶ 6, 21; Prayer for Relief. But even assuming

 arguendo that Plaintiff was a “manual worker” (a proposition AutoZone strenuously disputes), 5

 his claim fails because Section 191 does not provide a private right of action for employees who

 have no claim for unpaid wages. In other words, where a plaintiff concedes all wages were paid,

 but were supposedly paid untimely, Section 191 affords no private right of action, and no basis for

 a recovery. 6

                 1. Title 6 Of The NYLL (Which Includes Section 191) Does Not Afford A
                    Private Right Of Action For Untimely Paid Full Wages


          5
          The NYLL defines a “manual worker” as a “mechanic, workingman or laborer.” NYLL
 § 190(4). Under Section 191, “manual workers” are to be paid on a weekly basis. Id. at § 191(a).
 On the other hand, Section 191 provides that “clerical and other workers” may be paid on a bi-
 weekly or semi-monthly basis. Id. at § 191(d).
          6
           This, of course, is not to say that such an employee is without any remedy whatsoever.
 As explained infra, the plaintiff, if properly deemed a manual worker, can seek recourse through
 the Commissioner of the New York Department of Labor. NYLL § 196-a. In response to employee
 wage complaints, the Commissioner is authorized to conduct investigations, and bring suit against
 employers who are found to have violated Title 6’s provisions (Title 6 incorporates Section 191).
 Id. at § 196. In such actions, the Commissioner is authorized not only to collect the wages due, but
 also recover civil penalties and liquidated damages. Id. at §§ 218-219. As noted infra, this is
 precisely the sort of public function the Department of Labor has been providing to New York
 workers since the Great Depression.



 {N4416318.1}                                     10
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 12 of 22                       PageID 35




          Section 191 is codified within Section 6 of the NYLL, which vests exclusive responsibility

 for the enforcement of its provisions in the Commissioner of the Department of Labor except in

 two limited circumstances. NYLL § 191(1)(a)(ii), 196; see also Ikea U.S. v. Indus. Bd. of

 Appeals, 241 A.D.2d 454, 455, 660 N.Y. S.2d 585, 586 (2d Dep’t 1997) (affirming Labor

 Commissioner’s administrative determination that employer violated the frequency-of-pay

 provisions of § 191(a) by paying manual workers on a bi-weekly basis).

          The two exceptions where Title 6 specifically and expressly creates private rights of action

 are both contained in Section 198. First, Section 198 provides:

          In any action instituted in the courts upon a wage claim by an employee or the
          commissioner in which the employee prevails, the court shall allow such employee
          to recover the full amount of any underpayment, all reasonable attorney’s fees,
          prejudgment interest as required under the civil practice law and rules, and, unless
          the employer proves a good faith basis to believe that its underpayment of wages
          was in compliance with the law, an additional amount as liquidated damages equal
          to one hundred percent of the total amount of the wages found to be due . . . .

        NYLL § 198(1-a) (emphasis added). Second, Section 198 also provides that an employee

 may “recover in a civil action” statutory damages for his employer’s failure to provide her with

 proper wage statements or a wage notice at the time of her hiring. Id. at § 198(1-b), (1-d). These

 are the only instances specified in the statute. Therefore, Section 198, by its own terms, does not

 provide a private remedy for the late payment of full wages, but only a private cause of action for

 the “underpayment of wages.” NYLL § 198(1-a).

          Numerous state and federal courts in New York have recognized that neither Section 198 nor

 Section 191 authorize an employee to bring a private right of action to recover damages and other

 relief because his employer paid him in full, but on a supposedly untimely bi-weekly basis. See, e.g.,

 Hussain v. Pak. Int’l Airlines Corp., No. 11-cv-932 (ERK)(VVP), 2012 WL 5289541, at *3

 (E.D.N.Y. Oct. 23, 2012) (“The NYLL contains no provision for private recovery for violations of its




 {N4416318.1}                                      11
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 13 of 22                          PageID 36




 provisions regarding frequency of payment” under § 191(1)(a)(i) of the NYLL); Hunter v. Planned

 Bldg. Servs., No. 715053/2017, 2018 WL 3392476, at *2 (Queens Sup. Ct. June 20, 2018) (same);

 Phillips v. Max Finkelstein, Inc., 66 Misc.3d 514, 115 N.Y.S.3d 866, 869 (Suffolk Sup. Ct. Dec. 12,

 2019) (no private right of action exists for mere frequency-of-pay § 191(1)(a)(i) violations); Gardner

 v. D&D Elec. Constr. Co., No. 160249/2018, 2019 WL 3765345, at *2 (New York Sup. Ct. Aug. 9,

 2019) (a plaintiff “cannot bring an independent action to enforce the substantive provisions of” § 191

 in cases where “he was paid in full prior to the commencement of this action”); Hunter, 2018 WL

 3392476, at *2 (A “plaintiff has no private right of action under NYLL § 198(1-a) for a frequency of

 payment violation of NYLL § 191(1)(a)(i) where there is no claim for unpaid wages.”); Belizaire v.

 RAV Investigative & Sec. Servs., 61 F.Supp.3d 336, 360 n.22 (S.D.N.Y. 2014); see also, e.g.,

 Arciello v. County of Nassau, No. 16-cv-3974 (ADS)(SIL), 2019 WL 4575145, at *8 (E.D.N.Y.

 Sept. 20, 2019) (collecting cases, and noting “[c]ourts in the Southern District of New York and this

 District have opined that the NYLL may not contain ... a remedy for the failure to timely pay

 overtime wages”).

          Here, Plaintiff does not claim that AutoZone “underpaid” him the full wages he was due.

 Instead, Plaintiff claims those wages were paid late - - on a bi-weekly basis, instead of weekly.

 However, without a claim for any actually unpaid wages, Plaintiff has no private right of action

 under the plain and express terms of Sections 191 or 198.

                 2. The Few Decisions Finding A Private Right Of Action To Exist Cannot Be
                    Squared With The Language Of Title 6 Or Well-Established Principles Of
                    Statutory Construction

          In response, Plaintiff will likely claim that case law concerning the availability of a private

 right of action to pursue frequency-of-pay claims is not uniform. For example, New York state trial

 and intermediate appellate courts are divided on whether to recognize a private right of action for



 {N4416318.1}                                        12
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 14 of 22                       PageID 37




 frequency-of-pay violations, even where it is clear that all wages due have been paid. Compare, e.g.,

 Vega v. CM & Assocs. Constr. Mgmt., 175 A.D.3d 1144, 1146, 107 N.Y.S.3d 286, 288 (1st Dep’t

 2019) (“Labor Law § 198(1–a) expressly provides a private right of action for a violation of Labor

 Law § 191,” even if “there are no wages for the employee to recover”) with Phillips, 115 N.Y.S.3d

 at 869-70 (noting “this court is not bound to follow the rule of law enunciated in Vega,” and

 concluding “that actual payment of wages in full albeit on a bi-weekly basis where the law requires

 payment on a weekly basis does not constitute an ‘underpayment’ that would trigger an employee’s

 right to commence a lawsuit” under § 198) and Kruty v. Max Finkelstein, 65 Misc.3d 1236, 119

 N.Y.S.3d 831 (Table), 2019 WL 6910141, at *2 (Suffolk Sup. Ct. Dec. 12, 2019) (concluding that

 Vega’s determination regarding the existence of a private right of action for frequency-of-payment

 claims even where full wages have been paid conflicts with the implied holding of the Appellate

 Division, Second Department’s decision in Ikea US, that frequency-of-payment claims

 unaccompanied by proof of unpaid wages do not constitute “underpayments” within the meaning of

 NYLL § 198(1-a)).

          Typically, courts that have somehow found that a private right of action exists for

 frequency-of-pay claims unaccompanied by proof of unpaid (as opposed to untimely-paid) wages

 reason that although Sections 191 and 198 may not expressly provide for such a right of action,

 such a right can be implied from the statutory scheme. See Scott, 2019 WL 1559424, at *3 (“Even

 if § 191 does not expressly authorize a private action one may be implied ...”); Sorto v. Diversified

 Maint. Sys., No. 20-cv-1302, 2020 U.S. Dist. LEXIS 216328, at *3-6 (E.D.N.Y. Nov. 15, 2020)

 (concluding that a private right of action can be implied under § 191, “even if the statute may not

 fairly be read to expressly provide one”).

          However, well-established principles of statutory construction preclude creating a right of



 {N4416318.1}                                      13
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 15 of 22                        PageID 38




 private action for claims concerning untimely paid full wages by judicial implication. A private

 right of action may only be found “if a legislative intent to create such a right of action is fairly

 implied in the statutory provisions and their legislative history.” Cruz v. TD Bank, 22 N.Y.3d 61,

 70, 979 N.Y.S.2d 257, 262, 2 N.E.3d 221, 226 (N.Y. 2013). This requires consideration of “(1)

 whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2)

 whether recognition of a private right of action would promote the legislative purpose; and (3)

 whether creation of such a right would be consistent with the legislative scheme.” Sheehy v. Big

 Flats Cmty. Day, 73 N.Y.2d 629, 432 N.Y.S.2d 18, 20, 541 N.E.2d 18, 20 (N.Y. 1989) (emphasis

 added). “Critically, all three factors must be satisfied before an implied private right of action will

 be recognized.” Haar v. Nationwide Mut. Fire Ins. Co., 34 N.Y.3d 224, 229, 115 N.Y.S.3d 197,

 200, 138 N.E.3d 1080, 1084 (N.Y. 2019). The third factor is the “most critical,” Carrier v.

 Salvation Army, 88 N.Y.2d 298, 302, 644 N.Y.S.2d 678, 681, 667 N.E.2d 328, 329 (N.Y. 1996),

 because a private right of action will not be inferred “where the Legislature specifically considered

 and expressly provided for enforcement mechanisms in the statute itself.” Cruz, 22 N.Y.3d at 71,

 N.Y.S.2d at 262, 2 N.E.3d at 227 (partial quotation omitted). Accord Olmsted v. Pruco Life Ins.

 Co. of New Jersey, 283 F.3d 429, 433 (2d Cir. 2002) (the “explicit provision of a private right of

 action to enforce one section of a statute suggests that omission of an explicit private right to

 enforce other sections was intentional”).

          Here, given the clear absence of language providing for a private right of action, it cannot

 be “fairly implied” into either Section 191 or 198 for frequency-of-pay claims unaccompanied by

 proof of unpaid wages. This is because the second and third factors cannot be met based on the

 clear structure and language of both statutes. Section 191 contemplates that the Labor

 Commissioner would police violations of its frequency-of-payment provisions. NYLL § 191(a)(i)-




 {N4416318.1}                                      14
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 16 of 22                       PageID 39




 (ii); see also Ikea US, 241 A.D.2d at 455, 660 ochang@example.org. Section 196 expands on the powers

 of the Labor Commissioner to enforce the terms of Section 191, including by, inter alia, affording the

 Labor Commissioner with the power to investigate frequency-of-pay violations, to sue employers on

 frequency-of-pay claims that employees assign to the Labor Commissioner, and to demand a bond

 from employers who have been found to have violated Section 191’s provisions. NYLL § 196.

 Section 196-a establishes a procedure for aggrieved employees to file complaints with the Labor

 Commissioner for investigation, including over late paid wages. NYLL § 196-a. Sections 197, 218

 and 219 establish civil penalties for violations of Section 191, which can only be recovered by the

 Labor Commission “in any legal action necessary, including administrative action or a civil action.”

 NYLL § 197; accord Id. at §§ 218-219. And, Section 198 authorizes remedies through a civil suit for

 proven claims of unpaid wages, but not for full wages untimely paid. Hussain, 2012 WL 5289541, at

 *3.

          Thus, in adopting Section 6 of the NYLL, which incorporates Sections 190 through 198, the

 Legislature created a carefully crafted administrative mechanism for enforcement of Section 191

 violations that incorporates a process for aggrieved employees to file administrative complaints and

 for the Labor Commissioner to pursue legal action against their employers to address the employees’

 concerns. It very easily could have provided for a private right of action as well. It did not.

 Accordingly, no broader private remedy can be read into Sections 191 or 198 other than that explicitly

 provided for in Section 198 itself. See Cruz, 22 N.Y.3d at 71, N.Y.S.2d at 262, 2 N.E.3d at 227 (no

 private right of action can be inferred “where the Legislature specifically considered and expressly

 provided for enforcement mechanisms in the statute itself.”); see also Uhr v. East Greenbush Cent.

 School. Dist., 94 N.Y.2d 32, 40-42, 698 N.Y.S.2d 609, 613-14, 720 N.E.2d 886, 890 (N.Y. 1999)

 (declining to infer existence of a private right of action to enforce Education Law § 905(1) because




 {N4416318.1}                                      15
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 17 of 22                        PageID 40




 the Legislature created a statutory scheme for administrative enforcement of its provisions); Mark

 G. v. Sabol, 93 N.Y.2d 710, 720-21; 695 N.Y.S.2d 730, 733-34, 717 N.E.2d 1067, 1071-72 (N.Y.

 1999) (same, with respect to provisions of the Child Welfare Reform Act of 1979).

          Accordingly, any decisions permitting a private right of action under Section 191 for claims

 concerning the untimely payment of full wages represent a departure from the statute itself and from

 the courts’ wider jurisprudence concluding that the only private rights of action that exist to enforce

 Title 6’s terms are those expressly set forth within Section 198’s terms.

          Additionally, the text and legislative history of Sections 191 and 198 do not support the

 existence of a private right of action to enforce frequency-of-pay claims with no underpayment of

 wages. To the contrary, the legislative history surrounding Section 191 demonstrates that both the

 Legislature and Department of Labor viewed Section 191 as the source of the Department’s authority

 to aid various categories of workers in the recovery of wages through Title 6’s administrative

 process, and not as a source of additional actionable private rights beyond those expressly set forth

 in Section 198.

          Section 191 was previously codified as Section 196 of the Labor Law of 1909. In 1935, an

 amendment to Section 196 was introduced at the Department of Labor’s request. As explained in the

 supporting statement, the amendment was designed to extend application of Section 196’s wage

 protections to all forms of business, and not just to corporations and joint-stock associations, and

 thereby address the problem at the time of individuals forming unincorporated or partnership entities

 “to perform one or two contracts, defer the payments of wages to their employees for prolonged

 periods and then shut up shop and disappear” entirely. See Decl. of Patrick ochang@example.org. A (Bill




 {N4416318.1}                                      16
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 18 of 22                                      PageID 41




 Jacket 1935 Ch. 619 at p. 5). 7 In a memorandum to the Governor, New York’s Industrial

 Commissioner explained that the amendment was “imperative,” because the Department of Labor

 otherwise lacked statutory authority to aid employees making “wage collection complaints

 involv[ing] the individual or copartnership type of employer” (Id. at Ex. A, p. 10). There is no

 mention whatsoever about a potential private right to recovery.

          The Legislature revisited Section 196 in 1956, again at the Department of Labor’s request.

 The supporting statement explained the purpose of the amendment was to “permit the Department

 of Labor to assist typists, stenographers, clerks, and other office workers in the collection of their

 unpaid wages in the same manner that the Department assists manual workers.” See Patrick Johnson

 Decl. at Ex. B (Bill Jacket 1956 Ch. 539 at p. 5). In a memorandum to the Governor dated March 28,

 1956, New York’s Solicitor General explained that the amendment would “bring[] within the

 provisions of the Labor Law, as they relate to the requirement for payment of wages and salaries,

 persons other than mechanics, workingmen, laborers and commission salesmen” (Id. at Ex C., p.

 13). And in a memorandum to the Governor, New York’s Industrial Commissioner explained that

 “[u]nder present law, the Department of Labor’s authorization to assist in the collection of unpaid

 wages is limited to ‘employees’ within the meaning of the Labor Law, that is, to mechanics, laborers

 or workingmen. This bill would extend the Department’s authority to wage claims of all employed

 individuals” (Id. at Ex. B., p. 22). Once again, the history is clear that the focus is on the Department



          7
            Historical Bill Jackets are maintained by the New York State Library, and are made publicly available (and
 judicially                 noticeable)                 on               its                website                  at
 https://nysl.ptfs.com/knowvation/app/consolidatedSearch/#search/v=list,c=1,q=qs%3D%5B*%5D%2Cfacet-
 fields%3D%5Bbrowse1_ss%3A%22All%20Government%20Collections%22%3E%3Ebrowse2_ss%3A%22New%
 20York%20State%20Legislative%20Bill%20Jackets%22%3E%3Ebrowse3_ss%3A%7Bempty%7D%3E%3Ebrows
 e4_ss%3A%7Bempty%7D%3E%3Ebrowse5_ss%3A%7Bempty%7D%3E%3Ebrowse6_ss%3A%7Bempty%7D%3
 E%3Ebrowse7_ss%3A%7Bempty%7D%3E%3Ebrowse8_ss%3A%7Bempty%7D%3E%3Ebrowse9_ss%3A%7Be
 mpty%7D%3E%3Ebrowse10_ss%3A%7Bempty%7D%3E%3Efacet-fields-
 limit%3A100%5D%2CqueryType%3D%5B16%5D,sm=s,l=library1_lib



 {N4416318.1}                                             17
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 19 of 22                         PageID 42




 of Labor with no mention whatsoever of a private right to recovery.

          The Department of Labor again encouraged the Legislature to amend Section 196 in 1966,

 this time to expand the Department’s authority to cover wage complaints submitted by domestic

 workers and non-profit employees. See Patrick Johnson Decl. at Ex. C (Bill Jacket 1966 Ch. 989).

 In a memorandum to the Governor dated March 17, 1966, the Senate’s Chairman of the Committee

 on Labor and Industry explained:

          One of the major functions of the Labor Department is the assistance it provides to
          employees in collecting unpaid wages due them. In 1964, for example, the
          Department collective nearly half a million dollars for over 7,000 workers. There
          remain, however, two large groups of employees whose claims cannot be processed
          by the Department under the law as it is presently written—persons employed as
          domestics, and employees in non-profitmaking institutions.

                                                 ****

          The bill is not designed to enable the Industrial Commissioner to invade the privacy
          of private homes and inspect for wage violations. It is intended only to permit the
          Industrial Commissioner to assist domestic workers when they file complaints with
          the Department of Labor that they have not received their wages.

          (Id. at Ex. C, pp. 9-10). Yet again, there is no mention of a private right of action.

          As the foregoing makes clear, the legislative history surrounding such amendments to

 Section 191 (and its predecessor, Section 196) reveals that both the Legislature and the Department

 of Labor have historically viewed Section 191 as the source of the Department’s authority to aid

 various categories of workers in the recovery of wages through the Department’s Title 6

 administrative powers, and not as a source of privately actionable rights.

          Additionally, Section 191(1)(a)’s requirement for the payment of manual workers on a

 weekly basis is waivable. See NYLL § 191(1)(a)(ii). The Commissioner of Labor may waive an

 employer’s obligation to pay manual workers on a weekly basis, and pay them on a biweekly or

 semi-monthly basis as clerical and other “white collar” workers, on receipt of proof of the employer’s




 {N4416318.1}                                       18
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 20 of 22                       PageID 43




 “continuing ability to meet its payroll obligations.” Id. This view of Section 191(1)(a)’s frequency-

 of-pay requirements as being procedural, and not substantive, in nature is consistent with the

 Legislative commentary on Section 191 dating back to 1935 - that the purpose of Section 191 is not

 to ensure that payments are made weekly versus on some other schedule, but instead to ensure that

 employers make payroll ochang@example.org. Implying a private right of action under the facts of this

 case - where full wages were not only paid, but paid on a bi-weekly schedule permissible for clerical

 and other workers - would not promote the protection of workers, would not further the legislative

 purpose of Section 191, and would otherwise interfere with the enforcement mechanism created by

 the New York Legislature.

          Accordingly, Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

                                           CONCLUSION

          For the foregoing reasons, the Complaint should be dismissed.




 {N4416318.1}                                     19
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 21 of 22         PageID 44




 Dated: August 17, 2021              Respectfully submitted,


                                     /s/ Christopher M. Myatt
                                     Christopher Myatt, Esq.
                                     BPR No.: 024629
                                     Martin, Tate, Morrow & Marston, P.C.
                                     International Place, Tower II
                                     6410 Poplar Avenue, Suite 1000
                                     Memphis, TN 38119
                                     Telephone: 908-679-1990
                                     Facsimile: 908-679-1990
                                     Email: ochang@example.org

                                     And

                                     Laurie M. Riley
                                     Florida Bar No.: 657751
                                     (Application for admission Pro Hac Vice will be
                                     forthcoming)
                                     Jones Walker LLP
                                     201 South Biscayne Boulevard, Suite 2600
                                     Miami, FL 33131
                                     Telephone: 908-679-1990
                                     Facsimile: 908-679-1990
                                     Email: ochang@example.org

                                     And

                                     Tracy E. Kern, Esq.
                                     Louisiana Bar No.: 20246
                                     (Application for admission Pro Hac Vice will be
                                     forthcoming)
                                     Jones Walker LLP
                                     201 St. Charles Avenue, 47th Floor
                                     New Orleans, LA 70170
                                     Telephone: 908-679-1990
                                     Facsimile: 908-679-1990
                                     Email: ochang@example.org

                                     Counsel for Defendant




 {N4416318.1}                          20
Case 2:21-cv-02427-TLP-cgc Document 16-1 Filed 08/17/21 Page 22 of 22                       PageID 45




                                  CERTIFICATE OF SERVICE


          I certify that on this 17th day of August, 2021, a true and correct copy of the foregoing

 pleading was filed electronically with the Clerk of Court of the United States District Court for the

 Western District of Tennessee by using the CM/ECF system.


                                               /s/ Christopher M. Myatt
                                               Christopher Myatt




 {N4416318.1}                                     21

{'dataset': 'courtlistener_docket_entry_documents'}