09-4890-cv
     Zheng v. Liberty Apparel Co.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United               States Court of Appeals
 2       for the Second Circuit, held at the               Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl               Street, in the City of
 4       New York, on the 10 th day of August,              two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                BARRINGTON D. PARKER,
 9                PETER W. HALL,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LING NAN ZHENG, REN ZHU YANG, YUN
14       ZHEN HUANG, WEN QIN LIN, SAI BING
15       WANG, YE BIAO YANG, RONG YUN ZHENG,
16       HUI FANG LIN, XIU YING ZHENG, JIN
17       PING LIN, HUI MING DONG, YU BING LUO,
18       SAU CHI KWOK, SAI XIAN TANG, YI ZHEN
19       LIN, RUI FANG ZHANG, MEI JUAN YU, MEI
20       YING LI, QIN FANG QIU, YI MEI LIN,
21       MEI ZHU DONG, FUNG LAM, XIU ZHU YE,
22       SING KEI LAM, XUE JIN LIN,
23
24                    Plaintiffs-Appellees,
25
26       CUI ZHEN LIN,
27
28                    Plaintiff,

                                                  1
 1
 2            -v.-                                 09-4890-cv
 3
 4   LIBERTY APPAREL COMPANY, INC., ALBERT
 5   NIGRI, HAGAI LANIADO,
 6
 7            Defendants-Cross-Claimants
 8            -Appellants,
 9
10   NGON FONG YUEN, 88 FASHION INC., TOP
11   FIVE SPORTSWEAR, INC., S.P.R.
12   SPORTSWEAR, INC., 91 FASHION INC.,
13
14            Defendants,
15
16   LAI HUEN YAM, also known as Steven
17   Yam, 998 FASHIONS INC., 103 FASHION
18   INC.,
19
20            Defendants-Cross-Defendants.
21
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANT:             VANO I. HAROUTUNIAN (Will
25                              Levins, on the brief), Ballon
26                              Stoll Bader & Nadler, P.C., New
27                              York, New York.
28
29   FOR APPELLEES:             JAMES REIF (Anna Roberts on the
30                              brief), Gladstein, Reif &
31                              Meginniss, LLP, New York, New
32                              York.
33
34        Appeal from a judgment of the United States District
35   Court for the Southern District of New York (Sullivan, J.).
36
37        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
38   AND DECREED that the judgment of the district court be
39   AFFIRMED IN PART and VACATED AND REMANDED IN PART.
40
41         Plaintiffs are a group of 25 Chinese garment workers
42   in New York City’s Chinatown. In 1999, they sued Liberty
43   Apparel Company and its two principals (collectively, “the
44   defendants”), and others, for violations of the Fair Labor
45   Standards Act, 29 U.S.C. § 201 et seq., New York state

                                  2
 1   analogs, and New York Labor Law § 345-a(1). Ultimately, a
 2   jury found Liberty Apparel and Albert Nigri liable on the
 3   FLSA and New York state analog claims, and all three
 4   defendants liable on the § 345-a(1) claim; following
 5   resolution of various post-trial motions, the district court
 6   entered judgment accordingly.
 7
 8        The defendants now appeal that judgment. They argue
 9   principally that the district court improperly allowed the
10   jury to determine whether Liberty was plaintiffs’ joint
11   employer, whereas instead the court itself should have
12   resolved that issue. We address this issue in a separate
13   opinion filed contemporaneously with this summary order.
14
15        The defendants also argue that: (1) the district court,
16   having previously concluded that three of the factors
17   involved in the joint employment inquiry favored the
18   defendants as a matter of law, improperly refused to charge
19   the jury accordingly; (2) the jury’s verdict was not
20   supported by sufficient evidence; and (3) New York Labor Law
21   § 345-a(1) does not allow a private right of action.
22
23   [1] In denying summary judgment on remand, the district
24   court held that as to three of the relevant factors there
25   was no genuine dispute of fact, and that each favored the
26   defendants as a matter of law. The defendants argue that
27   the court erred in failing to instruct the jury accordingly.
28
29        Even assuming that the district court erred in this
30   regard, vacatur is unwarranted. An improper jury
31   instruction does not require a new trial if the error was
32   harmless. See 28 U.S.C. § 2111; Fed. R. Civ. P. 61; Gordon
33   v. N.Y. City Bd. of Educ., 

, 116 (2d Cir. 2000).
34   “An error is harmless only if the court is convinced that
35   the error did not influence the jury’s verdict.” Gordon,

. But “harmless error analysis does not
37   require absolute certainty with respect to what effect the
38   error had upon the verdict.” Bruneau ex rel Schofield v. S.
39   Kortright Cent. School Dist., 

, 760 (2d Cir.
40   1998). “[W]hen we are able to conclude that the verdict was
41   not substantially influenced by the alleged error, then we
42   may be quite confident the objecting party’s rights were not
43   prejudiced and may uphold the general verdict.” 

       Here, any error would be harmful only if there was a
46   reasonable chance that the jury could have deemed any or all
47   of factors one, two, and four to favor plaintiffs. On this

                                  3
 1   record, that is implausible. The defendants admit that the
 2   plaintiffs conceded all three factors at trial, and the
 3   court’s charge--which we presume the jury followed, United
 4   States v. Salameh, 

, 116 (2d Cir. 1998)--ensured
 5   that no improper considerations infected the jury’s weighing
 6   of these factors.
 7
 8   [2] The defendants argue, as they did by way of an
 9   unsuccessful Rule 50 motion in the district court, that the
10   jury’s verdict was not supported by legally sufficient
11   evidence. We will reverse only if, considering the evidence
12   in the light most favorable to the plaintiffs and drawing
13   all reasonable inferences in their favor, there was “such a
14   complete absence of evidence supporting the verdict that the
15   jury’s findings could only have been the result of sheer
16   surmise and conjecture, or there is such an overwhelming
17   amount of evidence in favor of [the defendants] that
18   reasonable and fair minded jurors could not arrive at a
19   verdict against [the defendants].” Nimely v. City of N.Y.,
20   

, 390 (2d Cir. 2005) (internal quotation marks
21   and brackets omitted).
22
23        For largely the same reasons stated by Judge Sullivan
24   in his oral decision, we conclude that there was a legally
25   sufficient basis for the verdict. A reasonable jury could
26   have found that three of the relevant factors favored
27   plaintiffs. First, the defendants do not dispute that a
28   reasonable jury could have found that plaintiffs “performed
29   a discrete line-job that was integral to Liberty’s process
30   of production.” Zheng v. Liberty Apparel Co., 

,
31   72 (2d Cir. 2003) (setting forth the relevant factors).
32   Second, a reasonable jury could have concluded that the
33   degree to which Liberty Apparel and its principals and
34   agents supervised plaintiffs’ work weighed in favor of
35   plaintiffs given their testimony that representatives of
36   Liberty Apparel supervised plaintiffs’ work an average of
37   three to four times per week for hours at a time and spoke
38   directly to plaintiffs, on at least one occasion directing
39   workers to stop work on another manufacturer’s garments in
40   order to begin work on Liberty’s. Third, a jury could have
41   reasonably concluded that plaintiffs worked predominantly
42   for the defendants, given plaintiffs’ testimony that 70 to
43   80 percent of their work was performed for Liberty.
44
45        Finally, the jury could infer that the defendants knew
46   how much time it would take to do the work Yam contracted to


                                  4
 1   do, and that Yam would not pay plaintiffs more than he was
 2   paid by Liberty.
 3
 4        Thus, there was legally sufficient evidence for the
 5   jury’s conclusion that the defendants exercised “functional
 6   control” over plaintiffs.
 7
 8   [3] The defendants argue that New York Labor Law § 345-a(1)
 9   provides no private right of action. At oral argument, the
10   panel raised the prospect of certifying this important
11   question to the New York Court of Appeals. Plaintiffs’
12   counsel decided (in our view, sensibly) to abandon the
13   § 345-a(1) claim rather than prolong further this eleven-
14   year-old litigation. We therefore consider this claim
15   abandoned, and we vacate the § 345-a(1) portion of the
16   district court’s judgment and remand for the district court
17   to dismiss that claim and re-calculate the damages
18   accordingly.
19
20        Finding no merit in the Liberty Defendants’ remaining
21   arguments, we hereby AFFIRM IN PART and VACATE AND REMAND IN
22   PART the judgment of the district court. The mandate shall
23   issue forthwith.
24
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




                                  5