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Davis Polk Wins $4.6 Million Judgment for Delivery Workers at Popular Restaurant

Tuesday, November 18, 2008

  • Organization: AALDEF

Davis Polk & Wardwell, in conjunction with the Asian American Legal Defense and Education Fund (“AALDEF”), won a judgment on October 21, 2008, in excess of $4.6 million on behalf of 36 current and former employees of Saigon Grill, a popular Vietnamese restaurant with locations on the Upper West Side and near Union Square. The judgment, which follows from a five-day bench trial in June before Magistrate Judge Michael H. Dolinger of the United States District Court for the Southern District of New York, holds Saigon Grill and its owners and managers responsible for failing to pay its delivery workers in compliance with federal and state labor laws over the last decade.

The plaintiffs—35 delivery workers and one employee who packed delivery orders—are all immigrants from China’s Fujian Province who Davis Polk is representing pro bono. Without knowledge of their legal rights, the workers were paid well below the minimum wage, in some cases less than $2.00 an hour, and did not receive overtime compensation for workweeks that lasted as long as 80 hours. Among other violations of federal and state labor law, the delivery workers were also fined by their employers for perceived infractions of restaurant rules, such as failing to log deliveries into the computer system or letting a door slam too loudly, and forced to kick back wages to their employers when they did not have enough time to perform their non-delivery work, such as filling the small containers of sauce included in delivery orders. Twenty-two of the delivery workers were fired in March 2007 in retaliation for planning to bring this lawsuit, also in violation of federal and state law.

Because of the popularity of the Saigon Grill restaurants and the number of workers affected, as well as a series of protests staged outside the affected restaurants, this action and a related proceeding before the National Labor Relations Board have drawn coverage from The New York Times, The American Lawyer and New York magazines, and other media outlets.

In its ruling, the Court found that the defendants violated the plaintiffs’ rights under the federal Fair Labor Standards Act and the New York Labor Law. Accepting damage estimates submitted by Davis Polk and AALDEF, the Court awarded the 36 plaintiffs approximately $4.6 million for these wage-and-hour violations.

The Court also found that the defendants illegally retaliated against the 22 plaintiffs who were fired from their jobs as delivery workers when the defendants learned that they were planning to bring this lawsuit. Damages on these retaliation claims will be determined in a later proceeding.

In addition to the restaurants’ corporate owners, the Court found individually liable the restaurants’ founder, Simon Nget; his wife Michelle Nget, who directly managed delivery operations and had an ownership interest in the business; and Sung Truong, who oversaw the delivery workers at the Union Square location.

The workers were represented at trial by four Davis Polk associates, Jonathan Adler, Matt Rosselli, Edward Sherwin, and Will Miller. These attorneys received assistance before and during trial from partner Brian Weinstein, special counsel Ronnie Abrams, and Kenneth Kimerling of AALDEF. Summer associates Matt Jacobs and Gerald Moody; legal assistants Charles Seidner, Jonathan Reiss, and Christina Chang; and summer legal assistant James Giampietro also assisted throughout the trial. Associate Jessica Freese also assisted before trial.

The case name and number are Ke et al. v. Saigon Grill, Inc. et al., No. 07 Civ. 2329 (MHD).


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