Wang v. Keeper Holdings, Inc. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JONG BU WANG,
ORDER
24 CV 672 (CLP)
Plaintiff,
-against-
KEEPER 	HOLDINGS, 	INC., 	STEVEN
YANG, and KATY LEE,
Defendants.
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POLLAK, United States Magistrate Judge:
On January 30, 2025, plaintiff Jong Bu Wang (“plaintiff” or “Wang”) filed the instant
action against defendants Keeper Holdings, Inc. (“Keeper Holdings”), Steven Yang (“Yang”),
and Katy Lee (“Lee”) (collectively, “defendants”), alleging violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the New York Labor Law (“NYLL”)
§§ 650 et seq. (ECF No. 1). After the parties proceeded through mediation, discovery, and a
settlement conference, the Court issued a trial management order on October 24, 2025, setting
the trial to commence on December 15, 2025, and directing the parties to exchange and file
motions in limine by November 26, 2025, with responses served and filed by December 3, 2025.
(Order, dated October 24, 2025). The parties timely filed their motions and responses. (ECF
No. 29-35). Defendants additionally move to file their unredacted Memorandum of Law in
Support of Defendants’ Motion in Limine, and Exhibit D attached to the Motion, under seal.
(ECF No. 30). The Court rules on the motions in limine as follows.
LEGAL STANDARD
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to the district court’s inherent authority to manage the course of
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trials.” Luce v. United States, 469 U.S. 38, 40 n.4 (1984). “The purpose of a motion in limine is
to allow the trial court to rule in advance of trial on the admissibility and relevance of certain
forecasted evidence.” Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011);
accord Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (explaining that in limine rulings
“aid the trial process” by providing the court with the opportunity to decide the issue of
admissibility “without lengthy argument at, or interruption of, the trial”). “Evidence should be
excluded on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds.” United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Thus, the party
moving in limine “bears the burden of establishing that evidence is inadmissible for any purpose
and so properly excluded.” United States v. Johnson, No. 16 CR 457, 2017 WL 5125770, at *2
(E.D.N.Y. Sept. 21, 2017). “Courts considering a motion in limine may reserve decision until
trial, so that the motion is placed in the appropriate factual context.” United States v. Johnson,
2017 WL 5125770, at *2 (quoting Jean-Laurent v. Hennessy, 840 F. Supp. 2d at 536). “The
ruling is subject to change when the case unfolds[;] [i]ndeed, even if nothing unexpected
happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a
previous in limine ruling.” Luce v. United States, 469 U.S. at 41-42.1
Pursuant to the Federal Rules of Evidence, “evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Fed. R. Evid. 401. Conversely, evidence that
does not make any fact of consequence more or less probable is inadmissible as irrelevant. Fed.
R. Evid. 401, 402; United States v. White, 692 F.3d 235, 246 (2d Cir. 2012). A court may
1 “This does not mean that the parties may ignore the Court’s in limine rulings at trial, for they remain the
Order of the Court unless altered.” Reynolds v. American Airlines, Inc., No. 14 CV 2429, 2017 WL 5613115, at *1
n.1 (E.D.N.Y. Nov. 21, 2017). “Instead, any party may, out of the hearing of the jury, seek reconsideration of an in
limine ruling based on the evidence adduced at trial.” Id.
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exclude relevant evidence when “its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
DISCUSSION
I. 	Plaintiff’s Motions in Limine
Plaintiff submitted eleven motions in limine. (Pl.’s Mem.).2 The Court first addresses
plaintiff’s unopposed motions. In motions in limine Nos. 1 and 3, plaintiff seeks to exclude any
reference, testimony, or evidence regarding her immigration status and her involvement in an
automobile accident case, arguing that each topic is irrelevant to the claims under the FLSA and
NYLL and would cause undue prejudice and jury confusion. (Id. at 1-2). Additionally, in
motion in limine No. 11, she seeks to exclude defendants’ Exhibit M, a vehicle bill of sale, as
irrelevant to her claims and lacking authentication. (Id. at 5). Defendants do not oppose these
three motions. (Defs.’ Resp.3 at 3).
The Court agrees that plaintiff’s immigration status, her involvement in an automobile
accident case, and the vehicle bill of sale are irrelevant to her claims. See Fed. R. Evid. 401.
Furthermore, even if her immigration status were relevant, its prejudicial effect and tendency to
mislead the jury would substantially outweigh any probative value. See Fed. R. Evid. 403;
Rodriguez v. Pie of Port Jefferson Corp., 48 F. Supp. 3d 424, 426 (E.D.N.Y. 2014).
Accordingly, the Court grants plaintiff’s motions in limine Nos. 1, 3, and 11 to preclude any
mention at trial of her immigration status, prior involvement in an automobile accident case, and
the vehicle bill of sale in defendants’ Exhibit M.
2 Citations to “Pl.’s Mem.” refer to Plaintiff’s Motion in Limine, filed November 26, 2025. (ECF No. 29).
3 Citations to “Defs.’ Resp.” refer to Defendants’ Memorandum of Law in Partial Opposition to Plaintiff’s
Motion in Limine, filed December 3, 2025. (ECF No. 34).
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In motions in limine Nos. 2 and 4 through 10, which defendants oppose, plaintiff seeks to
exclude (i) any reference, testimony, or evidence suggesting that plaintiff made detailed journal
entries to assist in negotiating post-employment compensation, arguing that the reason for
maintaining such a journal is irrelevant and could mislead and confuse the jury (No. 2); (ii)
defendants’ Exhibit D, the Declaration of Seong-Min Ko (“Pastor Ko”), due to lack of relevance
and foundation, as plaintiff claims she was not able to question Pastor Ko or understand the
declaration’s production process (No. 4); (iii) defendants’ Exhibit E, records of her church tithes
and offerings, which defendants offer to show specific dates plaintiff was at church, due to lack
of relevance and foundation (No. 5); (iv) defendants’ Exhibit G, photographs of her at church or
outdoors, as irrelevant to her work hours and wages and potentially misleading to the jury (No.
6); (v) defendants’ Exhibit I, family travel and reservation records, due to lack of relevance and
foundation (No. 7); (vi) defendants’ Exhibit J, family photographs, due to irrelevance, lack of
authentication, and potential to waste time with cumulative evidence (No. 8); (vii) defendants’
Exhibit K, documents related to the children’s summer camp, as irrelevant and containing
hearsay (No. 9); and (viii) defendants’ Exhibit L, documents related to the children’s soccer
games, due to lack of relevance and authentication, and potential hearsay issues (No. 10).
Defendants first object to plaintiff’s motion in limine No. 2. Defendants assert that
plaintiff’s journal entries are “central” to her claims, and that the circumstances under which they
were written – including whether they were prepared in anticipation of litigation – pertain
directly to the journals’ reliability and plaintiff’s credibility. (Defs.’ Resp. at 3-5). Although
plaintiff’s damages theory relies heavily on the journals as accurate records of the tasks she
performed and the time she spent performing them, defendants argue that plaintiff’s own
deposition testimony undermines the reliability of her journals. (Id. at 4). From the information
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before the Court, it appears as if plaintiff began keeping these journal entries at a point in time
when she realized she was not being properly paid by the defendants and she began to keep
contemporaneous records of her time and work schedules. In her deposition, plaintiff admitted
she began writing the journal entries in anticipation of negotiating compensation after her
employment ended. (ECF No. 34-1 at 3-4 (excerpt of plaintiff’s deposition testimony)).
Defendants argue that allowing the journal entries to be admitted, but excluding evidence
about their origin, would prevent the jury from properly evaluating the weight to be afforded to
the information maintained in the journals. (Defs.’ Resp. at 5). Defendants posit that plaintiff’s
argument that evidence regarding why the journal entries were created is prejudicial should be
discounted, because Federal Rule of Evidence 403 permits exclusion of relevant evidence only
where any unfair prejudice substantially outweighs its probative value. (Id. at 5). In this
instance, the Court agrees. Here, given the utter lack of records maintained by the defendants
despite the requirements of the FLSA and NYLL, the journal entries, if created
contemporaneously, would be highly probative of plaintiff’s hours worked and tasks performed.
Even if the jury were to adopt defendants’ argument that the circumstances of their preparation
are suspect4 and probative of plaintiff’s credibility, any prejudice would be a “natural
consequence of presenting relevant impeachment material.” (Id.)5 The Court therefore denies
4 The jury may in fact determine that plaintiff’s decision to record her time because she realized she was
not being properly paid was more than justified and not draw any negative inference from the circumstances of the
journals’ preparation. In any event, the circumstances of the journals’ preparation are not so prejudicial as to
warrant preclusion.
5 Defendants also question whether plaintiff’s deposition testimony presents a threshold issue of whether
the journals are admissible as substantive evidence at all. (Id. at 5). The journals must be considered hearsay under
Federal Rule of Evidence 801(c) if plaintiff intends to offer them for the truth of the matter asserted therein,
including the hours plaintiff worked. (Id.) Defendants list three possible hearsay exceptions plaintiff could use to
bring the journals into evidence: Rule 803(6) (business records), Rule 803(5) (recorded recollection), and Rule
803(1) (present sense impression). (Id.) Each of these hearsay exceptions, however, is premised on certain
foundational requirements – such as that the records were made as a part of a regularly conducted activity, that
making such records was a regular practice, that the records were created in the ordinary course of business, or that
they demonstrate circumstantial trustworthiness – that are potentially undermined by plaintiff’s admission in
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plaintiff’s motion in limine No. 2 to the extent that she seeks to prevent defendants from
exploring her rationale for creating these records. Of course, prior to seeking admission of these
journals into evidence, plaintiff will need to lay the appropriate foundation and provide a basis
for their admissibility.
Defendants also object to plaintiff’s motions in limine Nos. 4 through 10, on the grounds
that the evidence plaintiff seeks to exclude is in fact relevant to determining plaintiff’s actual
hours worked, which is core to her theory of damages. Specifically, defendants argue that: (i)
Pastor Ko’s declaration (No. 4) is relevant to plaintiff’s availability to work and contradicts her
claimed work schedule; (ii) church tithing records (No. 5) are relevant to plaintiff’s whereabouts
and hours worked; (iii) photographs of plaintiff outside the home (No. 6) are probative of
whether she was working; (iv) family travel records (No. 7) demonstrate periods when plaintiff
could not have been working; (v) family photographs (No. 8) show non-working periods and are
relevant to plaintiff’s claimed hours; (vi) camp records (No. 9) are relevant to plaintiff’s
availability and contradict her claimed hours; and (vii) soccer and activity records (No. 10) are
relevant and admissible to show reduced work hours. (Defs.’ Resp. at 5-9).
Under the FLSA and NYLL, it is the defendant-employers’ responsibility – not plaintiff-
employees’ – to maintain precise records. Santillan v. Henao, 822 F. Supp. 2d 284, 294
(E.D.N.Y. 2011). To the extent that defendants’ records are deficient in any way, the plaintiff-
employee need only submit “sufficient evidence from which violations of the [FLSA] and the
amount of an award may be reasonably inferred.” Chichinadze v. BG Bar Inc., 517 F. Supp. 3d
240 (S.D.N.Y. 2021) (internal citations omitted). The trier of fact is entitled to consider
deposition that she prepared the journals in anticipation of disputing compensation and severance. (Id.) The Court
reserves decision on the admissibility of the journals pending further development of the factual record at trial.
Even if not admissible as evidence, the journals may be used to refresh plaintiff’s recollection at trial, assuming
plaintiff is able to establish all other requirements for that purpose.
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plaintiff’s own recollection of hours worked. Santillan v. Henao, 822 F. Supp. 2d at 294
(holding that plaintiff can meet their burden of showing that they performed work that was not
properly compensated “by relying on recollection alone”) (collecting cases); Feng v. Kelai Corp.,
727 F. Supp. 3d 423, 444 (S.D.N.Y. 2024), appeal dismissed (June 13, 2024) (holding that
“where an employer’s payroll records are inaccurate or incomplete,” plaintiff’s burden to show
improperly compensated work “is not high and may be satisfied through an employee’s estimates
based on his own recollection” (internal quotation marks omitted)); see Hernandez v. Jrpac Inc.,
No. 14 CV 4176, 2016 WL 3248493, at *27 (S.D.N.Y. June 9, 2016). Under the FLSA, if an
employee submits sufficient evidence suggesting FLSA violations and a sum of damages, the
burden shifts to the employer to rebut the plaintiff’s evidence with evidence either showing the
precise hours worked or disproving the reasonableness of plaintiff’s recollection. Chichinadze v.
BG Bar Inc., 517 F. Supp. 3d at 252 (internal quotation marks omitted). Such evidence may
include onboarding documents, tax forms, paystubs, and timesheets, among other types of
evidence. See Ballast v. Workforce7 Inc., No. 20 CV 3812, 2023 WL 3301839, at *3 (S.D.N.Y.
May 8, 2023).
Courts employ the same burden-shifting framework to determine liability under the
NYLL and the FLSA. Under the NYLL, however, “an employer who fails to keep accurate
records shoulders a more stringent burden of proof.” Chichinadze v. BG Bar Inc., 517 F. Supp.
3d at 253 (collecting cases); N.Y. Lab. Law § 196-a(a). “By its terms, the NYLL – unlike the
FLSA – does not permit an employer to discharge this burden by undermining the
reasonableness of an employee’s evidence that [she] was underpaid.” Gamero v. Koodo Sushi
Corp., 272 F. Supp. 3d 481, 498 (S.D.N.Y. 2017), aff’d, 752 F. App’x 33 (2d Cir. 2018). Rather,
under the NYLL, an employer must demonstrate by a preponderance of the evidence that it in
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fact properly paid its employees “wages, benefits and wage supplements.” N.Y. Lab. Law §
196-a(a); see Hernandez v. Jrpac Inc., No. 14 CV 4176, 2016 WL 3248493, at *36 (S.D.N.Y.
June 9, 2016). Thus, “[i]f an employer cannot satisfy its burden under the FLSA, it cannot
satisfy th[is] ‘more demanding burden’ of the NYLL.” Canelas v. World Pizza, Inc., No. 14 CV
7748, 2017 WL 1233998, at *9 (S.D.N.Y. Mar. 31, 2017) (quoting Doo Nam Yang v. ACBL
Corp., 427 F. Supp. 2d 327, 337 n.15 (S.D.N.Y. 2005)).
Here, defendants failed to maintain records of the hours plaintiff worked, and plaintiff’s
allegations of the periods of employment and hours worked are based on her own recollections,
including her journal entries. Under the FLSA and NYLL burden-shifting frameworks,
defendants must therefore produce records to negate plaintiff’s claims, either to undermine
plaintiff’s recollections of her hours and payment (as relevant for the FLSA) or to show by a
preponderance of the evidence that defendants properly paid plaintiff (as relevant for the NYLL).
Defendants claim the records and photographs show that she was not working at certain times
she claims she was working. While the defendants may seek to introduce evidence designed to
show that plaintiff could not have been working during certain hours when she claimed to be
working, including evidence of her involvement in non-work-related activities, as potentially
probative of the number of hours plaintiff actually worked, see Fed. R. Evid. 401, defendants
have not established which specific dates and hours they claim plaintiff was not working, and
many of the photographs challenged in motions in limine Nos. 6 and 8 are not dated. Without
being dated, the photographs of plaintiff outside the home (No. 6) or of the family (No. 8) are not
probative of plaintiff’s location or work hours on certain dates.6 The church tithing records (No.
6 Some of the photographs appear to be screenshots from the iPhoto app with dates automatically installed
on the photograph, reflecting the date that the photograph was taken. (E.g., Defs.’ Ex. G at D0023 (photo of
plaintiff with relatives visiting); Defs.’ Ex. J at D0026-D0028, D0030, D0032-D0038, D0043-D0051, D0058,
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5), family travel records (No. 7), camp records (No. 9), and soccer and activity records (No. 10)
are also all hearsay, such that it is incumbent on defendants to provide a foundation under which
hearsay exception they seek to admit these records. Defendants’ insistence that these
photographs and records are not hearsay and that they can sidestep the rule against hearsay by
offering these records for purposes of showing the locations, timing, and schedule of various
events and activities (see Defs.’ Resp. at 8-9) misunderstands the concept of hearsay. If
defendants seek to offer specific photographs, they are directed to specify which dates they
dispute plaintiff was working, supply dates for each photograph they are attempting to bring into
evidence, and provide a proffer of foundational proof for all exhibits challenged through motions
in limine Nos. 5 through 10. Absent the requisite foundation, the Court will preclude the
introduction of these photographs.
With respect to motion in limine No. 4, to the extent that defendants seek to admit Pastor
Ko’s declaration into evidence at trial, defendants have failed to demonstrate the admissibility of
the declaration or explain under what exception to the hearsay rule they believe the declaration
becomes admissible. See Fed. R. Evid. 802 (prohibiting out-of-court statements offered as
evidence to prove the truth of the matter asserted therein as inadmissible hearsay). Although
defendants argue that plaintiff’s motion to preclude the declaration should be denied because
plaintiff chose not to depose Pastor Ko or conduct additional discovery (Defs.’ Resp. at 6),
plaintiff’s decision not to pursue additional discovery does not waive her right to cross-examine
D0063-D0068, D0080-D0083, D0102-D0103 (photos of family)). These may be admissible subject to testimony
establishing their relevance. Others appear to have dates that have been added after the fact (e.g., Defs.’ Ex. G at
D0006, D0024 (photos of plaintiff and various others); these dates are hearsay, and again the issue of relevance
would need to be established. Others have no date at all (e.g., Defs.’ Ex. G at D0001-D0005, D0007-D0012 (photos
of plaintiff out of the home); Def.’s Ex. H at D0013-D0018 (photos of plaintiff’s apartment); Defs.’ Ex. N at D0249
(photo of posters of New York and federal labor laws)), and their relevance and admissibility would need to be
established through witness testimony. Any handwritten commentary on any of the above photographs (e.g., Defs.’
Ex. J at D0026-D0028) is also hearsay, and relevance and foundation for the admissibility of those hearsay
comments, as well as for the photographs, would need to be established at trial.
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witnesses at trial, nor does it waive the presumption against hearsay. If defendants seek to
introduce testimony from Pastor Ko, defendants must either call him as a witness at trial or, if
they seek to admit the declaration itself, satisfy the requirement that the declarant be unavailable
to testify at trial. See Fed. R. Evid. 804(a). In the joint pretrial order, defendants list Pastor Ko
as a witness who will appear to testify in person. (ECF Nos. 28, 36). 	Accordingly, the
declaration is precluded as inadmissible hearsay. Plaintiff’s motion in limine No. 4 is granted.
The Court therefore grants plaintiff’s motions in limine Nos. 1, 3, 4, and 11; and denies
plaintiff’s motion in limine No. 2. As for motions in limine Nos. 5, 6, 7, 8, 9, 10, the challenged
documents will not be admitted subject to defendants’ offer of proof as set forth herein. If
defendants are able to provide a sufficient proffer of foundational basis for any of the excluded
exhibits, the Court may reconsider its decision to exclude certain evidence.
II. 	Defendants’ Motions in Limine
Defendants submitted a motion in limine requesting that plaintiff be precluded from
introducing three categories of evidence at trial: (i) materials produced after the close of fact
discovery; (ii) data from the U.S. Bureau of Labor Statistics; and (iii) the photographs of clothing
in plaintiff’s Exhibit 15. (Defs.’ Mem.;7 Yang Decl.;8 Brown Decl.9).
First, defendants argue that the late-disclosed evidence, including photographs and
website screenshots, lacks foundation and is inadmissible under Federal Rule of Civil Procedure
37(c)(1); that the delay in disclosure was neither justified nor harmless; and that admitting the
7 Citations to “Defs.’ Mem.” refer to Defendants’ Memorandum in Support of Defendants’ Motion in
Limine, filed November 26, 2025. (ECF No. 31-7 (redacted); ECF Nos. 32, 33 (unredacted)). Defendants filed a
redacted version of the Memorandum at ECF No. 31-7, and seem to have filed the unredacted version twice at ECF
Nos. 32 and 33.
8 Citations to “Yang Decl.” refer to the Declaration of Steven Yang in Support of Defendants’ Motion in
Limine, filed November 26, 2025. (ECF No. 31-1).
9 Citations to “Brown Decl.” refer to the Declaration of William Brown, Esq. in Support of Defendants’
Motion in Limine. (ECF No. 31-2).
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late-disclosed evidence would require reopening discovery, causing delays and prejudice. The
fact discovery deadline was July 14, 2025, but plaintiff failed to produce various documents until
November 17, 2025, more than four months later. (Defs.’ Mem. at 4). In her response, plaintiff
neither explains nor defends the delay. (See Pl.’s Resp.10).
Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). “The purpose of the rule is to prevent the practice of ‘sandbagging’ an
adversary with new evidence.” Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y.
2000). “[I]t is the obligation of the party facing sanctions for belated disclosure to show that its
failure to comply with the Rule was either justified or harmless and therefore deserving of some
lesser sanction.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006). Since
plaintiff has failed to show that her late disclosure of evidence was justified or harmless, the
Court therefore declines to consider any evidence submitted after the close of fact discovery
(including Exhibits A and B to the Declaration of William Brown, Esq.) as precluded by Rule
37(c)(1) of the Federal Rules of Civil Procedure.
Second, defendants assert that statistical data from the U.S. Bureau of Labor Statistics
(“BLS”) offered to demonstrate the average adult’s or parent’s daily schedule is irrelevant and
potentially misleading, as it requires expert testimony under Federal Rule of Evidence 702 to
explain its meaning, which plaintiff has not provided; moreover, plaintiff failed to disclose her
intention to introduce this evidence during discovery. (Defs.’ Resp. at 6-7). Since plaintiff
failed to timely produce this data during discovery as required by Rule 26, and did not proffer an
10 Citations to “Pl.’s Resp.” refer to Plaintiff’s Responses to Defendants’ Motion in Limine, filed December
3, 2025. (ECF No. 35).
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expert to explain its relevance to the jury, the Court precludes the BLS statistical data pursuant to
Rule 37(c)(1) for the reasons stated above. Additionally, the Court precludes it as lacking
probative value: generalized national averages about the typical adult or parent’s daily schedule
have no bearing on plaintiff’s specific job duties or work hours. See Fed. R. Evid. 401.
Third, defendants seek to preclude plaintiff’s Exhibit 15, photographs of clothing from
retail stores that are not owned by defendants. (See ECF No. 31 (redacted); ECF No. 32-1
(unredacted)). Defendants object to these photographs based on an assumption, grounded in
discussions with plaintiff’s counsel, of how plaintiff intends to use the photographs at trial.
(Defs.’ Mem. at 7).11 Plaintiff claims that she intends to introduce the photos of the clothes to
“show the work Plaintiff performed under Defendants’ direction,” “including shipping clothes.”
(Pl.’s Resp. at 2). Defendants’ “mere speculation” on plaintiff’s intended use for the
photographs, plaintiff argues, is insufficient to exclude them. (Id. at 2-3).
While plaintiff alleges that she performed certain tasks for defendant related to the
defendant’s clothing business, photographs of clothing from unrelated stores are irrelevant to the
hours expended by plaintiff in packing, unpacking, and shipping clothes for defendants.
Moreover, the photographs themselves merely depict a handful of crumpled clothing with visible
tags and, in certain photographs, package labels addressed to defendant Katy Lee. Plaintiff does
not herself appear in the photos. The Court determines these photos are not probative of the
claims at issue in this trial, but even if they were, the risk of prejudice to defendants and
confusion for the jury outweighs any probative value. See Fed. R. Evid. 401, 403.
11 Defendants assert that, during discovery, plaintiff “produced photographs of articles of clothing from
unrelated retail stores and suggested that” defendants engaged in some wrongdoing, an allegation that plaintiff’s
counsel repeated during discussions with defense counsel. (Defs.’ Mem. at 7). Defendants are concerned that if
plaintiff were permitted to introduce these photographs to the jury, it would invite potential insinuation and/or
allegations that defendants engaged in some wrongdoing. Any such allegations, they argue, would be irrelevant to
the FLSA and NYLL claims at issue in this case and could unfairly prejudice the jury, potentially leading to
collateral disputes and harm to defendants’ reputation.
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The Court grants defendants’ motion in limine. Photographs of clothing from unrelated
stores are not relevant, and the Court precludes all other evidence defendants seek to exclude as
late-disclosed and, for the BLS statistical data, irrelevant.
III. 	Defendants’ Motion to File Under Seal
Defendants also seek to file their unredacted Memorandum and Exhibit D (the
photographs of clothes in plaintiff’s Exhibit 15) under seal. (ECF No. 30). The Court grants
defendants’ motion to file under seal and permits the unredacted Memorandum and Exhibit D to
remain on the docket under seal.
IV. 	Plaintiff’s Wage Theft Prevention Act Claim
In her Complaint, plaintiff claims that defendants violated the Wage Theft Prevention Act
(“WTPA”), N.Y. Lab. Law §§ 195(1), 195(3), which requires employers to provide employees
with notices regarding their wages at the time of their hiring as well as regular wage statements.
(ECF No. 1 ¶¶ 88-92, 93-96). The wage notice must be provided in written English and the
employee’s primary language and contain the rate or rates of pay, whether the employee was to
be paid by the hour, shift, day, or week, any allowances claimed as part of the minimum wage,
the regular pay day, the name of the employer, the physical address of the employer’s main
office, and the employer’s telephone number in both English and the employee’s primary
language, if different from English. N.Y. Lab. Law § 195(1)(a). The wage statement must
contain certain statutorily specified elements, including: the dates of work covered by that
payment of wages; the names of employee and the employer; the employer’s address and phone
number; rate or rates of pay and basis thereof; whether the employee was paid by the hour, shift,
day, week, etc.; gross and net wages; deductions; any allowances, if any, claimed as part of the
minimum wage; etc. N.Y. Lab. Law § 195(3).
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The Supreme Court explained in TransUnion LLC v. Ramirez, that “Congress’s creation
of a statutory prohibition or obligation and a cause of action does not relieve courts of their
responsibility to independently decide whether a plaintiff has suffered a concrete harm under
Article III.” 594 U.S. 413, 426 (2021). The Supreme Court clarified that “[o]nly those plaintiffs
who have been concretely harmed by a defendant’s statutory violation may sue that private
defendant over that violation in federal court.” Id. at 427 (emphasis in original). Applying
TransUnion to WTPA claims, the Second Circuit in Guthrie v. Rainbow Fencing Inc. recently
declared that in order to bring a claim under Section 195 of the NYLL, “a plaintiff must show
some causal connection between the lack of accurate notices and the downstream harm.” 113
F.4th 300, 308 (2d Cir. 2024). Thus, after Guthrie, alleging only a statutory violation of the
WTPA is insufficient. Instead, a plaintiff sufficiently alleges an injury-in-fact when he claims,
for example, that the failure to notify “prevented the employee from obtaining full payment of
wages in a timely fashion.” Id. at 309.
Although no motion to dismiss this claim was filed, the Court raises the issue sua sponte
because the absence of standing raises a question as to whether the Court has subject matter
jurisdiction over the claim. A review of the allegations in the Complaint demonstrates that, apart
from reciting the statutory language and claiming that no wage notice or statements were
provided at the time of hire or at any time during her employment, plaintiff has failed to allege
any facts demonstrating that she suffered an injury in fact as a result of the lack of notice or
statements. (ECF No. 1 ¶¶ 90-92 (alleging that “Defendants intentionally failed to provide
notice to the employee in violation of [NYLL] § 195”; “Defendants not only failed to provide
notice to each employee at the Time of Hire but also failed to provide notice to the plaintiff even
after the fact”; and “[d]ue to Defendant’s violations of New York Labor Law, Plaintiff is entitled
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to recover from Defendant [sic], jointly and severally, $50 for each workday that the violation
occurred or continues to occur, up to $50,000”); ECF No. 1 ¶¶ 95-96 (alleging that “Defendants
have failed to make a good faith effort to comply with the New York Labor Law with respect to
the compensation of plaintiff and did not provide the paystub on or after Plaintiff’s payday”; and
“[d]ue to Defendant’s violations of New York Labor Law, Plaintiff is entitled to recover from
Defendant, jointly and severally, $250 for each workday of the violation, up to $5,000”).
Pursuant to the Second Circuit’s holding in Guthrie, the Court is constrained to dismiss
plaintiff’s WTPA claims without prejudice for lack of standing.12
CONCLUSION
As set forth above, the Court grants defendants’ motions in limine; grants plaintiff’s
motions in limine Nos. 1, 3, 4, and 11; denies plaintiff’s motion in limine No. 2; and excludes the
documents challenged in plaintiff’s motions in limine Nos. 5, 6, 7, 8, 9, and 10, although if
defendants are able to provide a sufficient proffer of foundational basis for any of the excluded
exhibits, the Court may reconsider its decision to exclude certain evidence. Defendants are
directed to specify which dates they dispute plaintiff was working, supply dates for each
photograph challenged in plaintiff’s motions in limine Nos. 6 and 8, and provide a proffer of
foundational proof for all exhibits challenged through motions in limine Nos. 5 through 10.
Additionally, Defendants’ motion to seal the unredacted Memorandum and Exhibit D is
also granted.
12 Given that the trial is set to begin in less than three days, amending the Complaint at this late date would
not be a reasonable solution, particularly since the trial has been set since October 24, 2025 and this issue could have
been dealt with long before now. In lieu of amending the Complaint, plaintiff’s counsel suggested at the final
pretrial conference that his client could submit a declaration explaining the impact of the lack of notice and the
injury caused thereby. Defendants objected and indicated in the joint pre-trial order that they dispute standing for
the WTPA claims. The issue of standing must be determined by reference to the pleadings; a declaration at this time
cannot cure the jurisdictional defect.
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Finally, the Court dismisses without prejudice plaintiff’s WTPA claims alleging
violations of the wage notice and wage statement requirements for lack of standing.
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
December 12, 2025
/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
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