DOCKET NO. HHD-CV21-6146693-S
`
`GOLD HARP, INC.,
`MAGGIE MCFLY’S 5, INC., GOLDEN
`HARPER RESTAURANT GROUP,
`MAGGIE’S GLASTONBURY INC.,
`AND CHEW-CHEWS, INC.
`
`V.
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`HAYBER, MCKENNA & DINSMORE, LLC.
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`SUPERIOR COURT
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`JD OF HARTFORD
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`AT HARTFORD
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`SEPTEMBER 15, 2022
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`SECOND AMENDED COMPLAINT
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`This is an action by a group of restaurant owners and operators against a law firm which,
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`in an effort to generate business, deliberately misled the public and advertised false information.
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`The defendant Hayber, McKenna & Dinsmore, LLC (“the defendant”) is engaged in a tireless
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`advertising campaign targeting and inciting Connecticut restaurant employees—a critical
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`component of which is the use of information that the defendant knows is false and was
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`deliberately utilized as part of a false and misleading campaign. Indeed, as the defendant is
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`demonstrably aware, on September 24, 2020, the Connecticut Department of Labor implemented
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`a series of regulations that explicitly identify the scenarios where a Restaurant owner may include
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`the gratuities received by its employees in calculating that employee’s minimum wage income.
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`Ignoring this change in the law, the defendant has repeatedly published multiple different
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`advertisements targeting the plaintiffs’ employees and intentionally providing misinformation
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`about the employees’ legal rights. As a direct result of the defendant’s knowingly false
`
`solicitations, Maggie McFly’s restaurant employees have commenced lawsuits (with the defendant
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`as their counsel), harming the plaintiffs’ reputations and causing substantial economic injury to
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`the plaintiffs’ businesses. Not surprisingly, the morale of the restaurants’ employees has also been
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`
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`GOLD HARP, INC.,
`MAGGIE MCFLY’S 5, INC., GOLDEN
`HARPER RESTAURANT GROUP,
`MAGGIE’S GLASTONBURY INC.,
`AND CHEW-CHEWS, INC.
`
`V.
`
`HAYBER, MCKENNA & DINSMORE, LLC.
`
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`SUPERIOR COURT
`
`JD OF HARTFORD
`
`AT HARTFORD
`
`SEPTEMBER 15, 2022
`
`SECOND AMENDED COMPLAINT
`
`This is an action by a group of restaurant owners and operators against a law firm which,
`
`in an effort to generate business, deliberately misled the public and advertised false information.
`
`The defendant Hayber, McKenna & Dinsmore, LLC (“the defendant”) is engaged in a tireless
`
`advertising campaign targeting and inciting Connecticut restaurant employees—a critical
`
`component of which is the use of information that the defendant knows is false and was
`
`deliberately utilized as part of a false and misleading campaign. Indeed, as the defendant is
`
`demonstrably aware, on September 24, 2020, the Connecticut Department of Labor implemented
`
`a series of regulations that explicitly identify the scenarios where a Restaurant owner may include
`
`the gratuities received by its employees in calculating that employee’s minimum wage income.
`
`Ignoring this change in the law, the defendant has repeatedly published multiple different
`
`advertisements targeting the plaintiffs’ employees and intentionally providing misinformation
`
`about the employees’ legal rights. As a direct result of the defendant’s knowingly false
`
`solicitations, Maggie McFly’s restaurant employees have commenced lawsuits (with the defendant
`
`as their counsel), harming the plaintiffs’ reputations and causing substantial economic injury to
`
`the plaintiffs’ businesses. Not surprisingly, the morale of the restaurants’ employees has also been
`
`
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`negatively impacted. The defendant’s immoral, unethical and unscrupulous conduct is a violation
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`of the Connecticut Unfair Trade Practices Act.
`
`COUNT 1: VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES
`ACT (CUTPA) CONNECTICUT GENERAL STATUTES §§ 42-110A, ET SEQ.
`
`I.
`
`THE PARTIES
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`1. Plaintiff Gold Harp, Inc. is a corporation organized and existing under the laws of the
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`State of Connecticut. It operates the Maggie McFly’s restaurant located in Southbury,
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`Connecticut.
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`2. Plaintiff Maggie McFly’s 5, Inc., is a corporation organized and existing under the laws
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`of the State of Connecticut. It operates the Maggie McFly’s restaurant located in
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`Manchester, Connecticut.
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`3. Plaintiff, Golden-Harper Restaurant Group, Inc., is a corporation organized and existing
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`under the laws of the State of Connecticut. It operates the Maggie McFly’s restaurant
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`located in Brookfield, Connecticut.
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`4. Plaintiff, Maggie’s Glastonbury, Inc., is a corporation organized and existing under the
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`laws of the State of Connecticut. It operates the Maggie McFly’s restaurant located in
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`Glastonbury, Connecticut.
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`5. Plaintiff, Chew Chews, Inc., is a corporation organized and existing under the laws of the
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`State of Connecticut. It operates the Maggie McFly's restaurant located in Middlebury,
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`Connecticut.
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`6. Each of the plaintiffs identified in Paragraphs 1 through 5 shall hereinafter be referred to
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`collectively as “the plaintiffs.”
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`7. Defendant Hayber, McKenna & Dinsmore, LLC is a company organized and existing
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`under the laws of the State of Connecticut and is located at 750 Main Street, Suite 904,
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`2
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`Hartford, Connecticut; Hayber, McKenna & Dinsmore is registered as a law firm with the
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`Connecticut Judicial Branch and bears the Juris Number 426871.
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`II.
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`FACTUAL BACKGROUND
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`The Relevant CT Department of Labor Regulations Prior to September 24, 2020
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`8. Connecticut General Statutes § 31-60 sets forth the relevant law regarding minimum wage
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`pay. Pursuant to that statute, Connecticut restaurants may pay servers less than minimum
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`wage when the servers earn offsetting gratuities. To that end, the statute directs the
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`Department of Labor Commissioner to “adopt regulations and shall recognize, as part of
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`the minimum fair wage, gratuities in an amount equal to thirty-six and eight-tenths per cent
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`of the minimum fair wage per hour for persons, other than bartenders, who are employed
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`in the hotel and restaurant industry, including a hotel restaurant, who customarily and
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`regularly receive gratuities.”
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`9. The purpose of this statute and the resulting Department of Labor regulations is to set up a
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`mechanism to balance the rights of the employee to receive the minimum wage with the
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`ability of the employer to account for gratuities in calculating the employees’
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`compensation.
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`10. In accordance with General Statutes § 31-60(b), the Labor Commissioner adopted a series
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`of Regulations governing the payment of less than minimum or overtime wage. See Regs.
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`Conn. State Agencies § 31-62-E3 and E4.
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`11. Prior to September 24, 2020, Regs. Conn. State Agencies § 31-62- E3 and E4 stated the
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`following:
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`a. Regs. Conn. State Agencies § 31-62-E3 (“E3”) provided that “Gratuities shall be
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`recognized as constituting a part of the minimum fair wage when all of the
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`3
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`following provisions are complied with: (a) The employer shall be engaged in an
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`employment in which gratuities have customarily and usually constituted and have
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`been recognized as part of his remuneration for hiring purposes, and (b) the amount
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`received in gratuities claimed as credit for part of the minimum fair wage shall be
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`recorded on a weekly basis as a separate item in the wage record even though
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`payment is made more frequently, and (c) each employer claiming credit for
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`gratuities as part of the minimum fair wage paid to any employee shall obtain
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`weekly a statement signed by the employee attesting that he has received in
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`gratuities the amount claimed as credit for part of the minimum fair wage. Such
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`statement shall contain the week ending date of the payroll week for which credit
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`is claimed. Gratuities received in excess of twenty-three percent of the minimum
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`fair wage established by subsection (j) of section 31-58 of the Connecticut General
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`Statutes per hour, need not be reported or recorded for the purpose of this
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`regulation.”
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`b. Regs. Conn. State Agencies § 31-62-E4 (“E4”) provided that “If an employee
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`performs both service and non-service duties, and the time spent on each is
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`definitely segregated and so recorded, the allowance for gratuities as permitted as
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`part of the minimum fair wage may be applied to the hours worked in the service
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`category. If an employee performs both service and non-service duties and the time
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`spent on each cannot be definitely segregated and so recorded, or is not definitely
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`segregated and so recorded, no allowances for gratuities may be applied as part of
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`the minimum fair wage.”
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`4
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`12. These regulations’ ambiguous and confusing language led to an influx of litigation against
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`restaurant owners. Accordingly, on September 24, 2020, the Connecticut Department of
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`Labor, operating in accordance with new legislation passed by the General Assembly,
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`implemented a series of new “tip credit” regulations and, in doing so, repealed and
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`amended the previous regulations, including “E3” and “E4.”
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`The Relevant Department of Labor Regulations After September 24, 2020
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`13. In its place, the Department of Labor set forth an “80/20 rule,” pursuant to which an
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`employer may apply the tip credit for an entire shift without segregating the service and
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`non-service duties unless a “service employee performs non-service duties for two hours
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`or more, or for more than 20 percent of the service employee’s shift, whichever is less.”
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`See Regs. Conn. State Agencies § 31-62-E3a.
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`14. In addition, the Department of Labor set forth a nonexhaustive list of 23 “duties incidental
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`to service,” significantly expanding the definition of “incidental service duties.” These 23
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`tasks include, but are not limited to, preparing or serving specialty dishes at tables as
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`required, cleaning tables or counters after patrons have finished dining, cleaning and
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`tidying up server stations and drink stations, preparing hot, cold, and mixed drinks for
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`patrons, including brewing coffee and chilling bottles of wine, and escorting customers to
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`their tables. See Regs. Conn. State Agencies § 31-62-E2(d). This regulation makes clear
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`that restaurants whose servers perform service duties and duties “incidental to service” may
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`take a credit for tips received from customers toward satisfaction of the minimum wage.
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`The Defendant’s Solicitations and Untrue Statements
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`15. Despite this change in the law, since September 24, 2020, the defendant has engaged in a
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`series of advertisements targeting Connecticut restaurant service-employees—and
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`specifically, service-employees employed by the plaintiffs—to solicit these employees as
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`potential clients for the defendant’s financial gain.
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`16. Through these advertisements, the defendant makes a number of false, unfair, and
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`deceptive claims regarding Connecticut “tip credit” regulations. The defendant’s
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`advertising campaign deliberately ignores the fact that, as of September 24, 2020,
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`Connecticut tip credit regulations have changed. Rather than acknowledge this change in
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`the law—and diluting the incendiary appeal of its advertisements with nuance—the
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`defendant’s advertisements accuse the plaintiffs of violating laws and regulations that no
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`longer exist.
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`17. Specifically, these advertisements indicate that Maggie McFly’s restaurant servers are
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`victims of wage theft, or have otherwise been paid a subminimum wage, and lead the
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`viewer to believe that the restaurant employees are still owed the “full minimum wage” if
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`they were assigned any “incidental service duties” at all.
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`18. The defendant’s advertisements are designed to, and, in fact, create the false impression
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`amongst the restaurants’ employees and patrons that the law in Connecticut requires
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`restaurants to pay the full minimum wage for all “incidental service duties” without
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`exception, and that failure to do so is a violation of the law.
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`19. Since December 20, 2020 through the present, the defendant has published at least fourteen
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`(14) deceptive and misleading advertisements.
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`a. Advertisement No. 1 (Facebook Unique Identifier 722454378386142),
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`Advertisement No. 2 (Facebook Unique Identifier 241867827476458) and
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`Advertisement No. 3 ( Facebook Unique Identifier 4696420510428267) state the
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`following: “Restaurants must pay their servers the full minimum wage, currently
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`6
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`$12.00/hr. in Connecticut, for their entire shift if they make those servers do side-
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`work and fail to pay the side-work at the full minimum wage. Servers and
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`bartenders deserve their full pay as required by Connecticut law.”
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`b. Advertisement No. 4 (Facebook Unique Identifier 3634493183301022) and
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`No. 5 (Facebook Unique Identifier 1032035613955959) contain the following
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`text: “Restaurants must pay their servers the full minimum wage, currently
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`$12.00/hr. in Connecticut, for their entire shift if they make those servers do side-
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`work and fail to pay the side-work at the full minimum wage. Servers and
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`bartenders deserve their full pay as required by Connecticut law. Outback
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`Steakhouse, Ruby Tuesday, Red Robin, Wood-n-Tap, Cracker Barrel, TGIF, 99
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`Restaurant, Chili’s, Maggie McFly’s, and Sliders Grill & Bar may owe money to
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`their servers and bartenders. Find out more here:
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`https://help.hayberlawfirm.com/fb/”
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`c. Advertisement No. 6 (Facebook Unique Identifier 171907331000364);
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`Advertisement No. 7 (Facebook Unique Identifier 246655933574487); and
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`Advertisement No. 8 (Facebook Unique Identifier 412545579971479) contain
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`the following text: “Have you or anyone you know worked as a server or
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`bartender at a Maggie McFly's in Connecticut? Maggie McFly's may owe back
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`pay to servers & bartenders. Download our free guide to learn more.” Although
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`these advertisements are not misleading on their face, they target employees of
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`Maggie McFly’s and contain a hyperlink redirecting viewers to a second
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`advertisement with untrue and misleading information.
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`7
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`d. Advertisement No. 9 (Facebook Unique Identifier 703195487232343);
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`Advertisement No. 10 (Facebook Unique Identifier 318127282962154)
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`Advertisement No. 11 (Facebook Unique Identifier 2308114429331900);
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`Advertisement No. 12 (Facebook Unique Identifier 540620053569145);
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`Advertisement No. 13 (Facebook Unique Identifier 742796513014818); and
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`Advertisement No. 14 (Facebook Unique Identifier 195720928953488) contain
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`the following text: “Have you or anyone you know worked as a server or
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`bartender at any of the following restaurants in Connecticut? Outback Steakhouse;
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`Sliders Grill & Bar; Maggie McFly's; Mix Prime Steakhouse; Market Place
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`Kitchen & Bar; Wood-n-Tap; Puerto Vallarta. These restaurants may owe back
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`pay to servers & bartenders. Download our free guide to learn more.” Although
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`these advertisements are not misleading on their face, they target employees of
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`Maggie McFly’s and contain a hyperlink redirecting viewers to a second
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`advertisement with untrue and misleading information.
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`20. Of the fourteen (14) advertisements noted above, several contain an imbedded video of
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`Richard Hayber, a principal of the defendant law firm, looking into the camera and stating:
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`“Restaurants in Connecticut are supposed to pay their servers the full minimum wage, of
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`$12/hour, for their side work. Most restaurants violate this law. This violation allows
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`servers in Connecticut to bring lawsuits for back wages. My law firm has been representing
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`servers for years making these claims. Give us a call.” (Video Advertisement No. 1).
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`21. Additionally, several of the social media advertisements redirect viewers to a second
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`advertisement hosted on the defendant’s website, which states: “Do You Ever Feel Like
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`You're Doing Too Much Side Work? Restaurants in Connecticut must pay the full
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`8
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`minimum wage to servers when they perform ‘non-service’ work. Restaurants can only
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`pay the lower server wage for ‘service work’ and work ‘incidental to service.’ Examples
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`of non-service include: Cleaning and setup before opening, or after closing; General clean-
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`up away from your tables or booths; Washing dishes; Waiting on take-out customers;
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`Host(ess) duties; Preparing food. If you are assigned these tasks and only paid the tip credit
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`rate (currently $6.38) for them, you may have a claim for unpaid wages under these laws.
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`Download our free guide to learn more about your rights as a service employee in
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`Connecticut today.” (Website Advertisement No. 1).
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`22. These advertisements are false because, as indicated above, pursuant to Regs. Conn. State
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`Agencies §§ 31-62-E2(d) and E3:
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`a. Connecticut Restaurants must only pay a server the full minimum wage for side
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`work if a service employee performs non-service employee duties: (1) For two
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`hours or more, or (2) For more than 20 percent of the service employee’s shift,
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`whichever is less.
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`b. A general clean-up away from a server’s tables or booths, host/hostess duties, and
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`some instances of food preparation are considered duties “incidental to service.”
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`See Regs. Conn. State Agencies § 31-62-E2(d). These duties are expressly not “side
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`work,” are, therefore, outside the ambit of Regs. Conn. State Agencies § 31-62-E3,
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`and directly contradict the defendant’s advertised claims.
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`23. The defendant is aware of the current law and/or should be aware of the current law. There
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`can also be no question that the defendant has had the opportunity to update its
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`advertisements. Indeed, the defendant updated its website as recently as October 21, 2020,
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`twenty-eight days after the new “tip credit” regulations took effect. Changes made include
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`9
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`updating the minimum wage value and adding the names of new restaurants “under
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`investigation.”
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`24. Nevertheless, the defendant deliberately misled the public as to the “tip credit” law so as
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`to generate business, referrals and “word of mouth” advertising momentum—again, with
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`the intent of capturing as many potential plaintiffs as possible and harming the reputation
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`and the business of the plaintiff.
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`25. As a result of Defendant’s unfair and deceptive advertising, Plaintiffs suffered an
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`ascertainable harm as wholly evidenced by those customers who expressed their disdain to
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`Plaintiffs regarding the manner in which Plaintiffs allegedly treated and/or compensated
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`restaurant employees and, as a result of this disdain, refused to patronize Plaintiffs’
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`restaurants.
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`26. As a result of Defendant’s unfair and deceptive advertising, numerous employees quit
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`and/or withdrew from the hiring process at Plaintiffs' restaurants. These employees or
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`prospective employees expressed beliefs to Plaintiffs about the contents of the advertising
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`including, but not limited to, the manner in which employees were compensated and/or
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`treated and cited the advertising as the reason why they quit or chose not to work for
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`Plaintiffs.
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`27. The loss of employees is, on its face, an ascertainable harm; however, losing employees
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`inflicted a number of additional harms on Plaintiffs. For example, being short-staffed
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`meant there were fewer employees available to cover all open shifts. Therefore, some
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`employees who had previously worked forty (40) hours in a week were now needed to
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`work additional hours at the applicable overtime rate, which increased Plaintiffs’ labor
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`10
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`costs. Additionally, Plaintiffs had to spend more time and resources on recruiting and
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`hiring, thereby increasing operating costs.
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`28. As a result of Defendant’s unfair and deceptive advertising. Plaintiffs incurred additional
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`and higher operating costs arising from the additional time and managerial resources
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`reallocated to addressing the manner in which the deceptive advertisements impacted the
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`workplace.
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`29. The actions of the defendant violate the Connecticut Unfair Practices Act, Connecticut
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`General Statutes §§ 42-110A, et. seq.
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`WHEREFORE, the plaintiffs seek,
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`1. Money damages.
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`2. An injunction against the Defendant further running false advertising related to Connecticut
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`restaurant wage and hour laws, both against the plaintiffs specifically, as well as restaurants
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`generally, as the plaintiffs are a restaurant and suffer reputational damages under that
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`umbrella.
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`3. An order that the defendants be required to remove the offending advertisements from their
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`social media pages, and other places of publication.
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`4. Attorney’s fees and costs.
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`5. Punitive damages under CUTPA.
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`6. Such other relief as the Court deems appropriate.
`
`MAGGIE MCFLY’S 5, INC.,
`GOLDEN HARPER RESTAURANT GROUP,
`MAGGIE’S GLASTONBURY INC., AND CHEW-
`CHEWS, INC.
`
`11
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`
`
`By: /s/ Ryan A. O’Donnell
`Ryan A. O’Donnell
`Maria Rapp
`Ford & Harrison LLP
`CityPlace II, Suite 820
`185 Asylum Street
`Hartford, CT 06103
`Tel.: (860) 740-1355
`Fax: (860) 578-2075
`rodonnell@FordHarrison.com
`mRapp@fordharrison.com
`Juris No. 426943
`
`By: /s/ Eliot B. Gersten
`Eliot B. Gersten
`Pullman & Comley, LLC
`90 State House Square
`Hartford, CT 06103
`Tel: (860) 424-4300
`Fax: (860) 424-4370
`egersten@pullcom.com
`Juris No. 409177
`
`12
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the above was or will immediately be mailed or delivered
`electronically or non-electronically on September 15, 2022 to all counsel and self-represented
`parties of record and that written consent for electronic delivery was received from all counsel
`and self-represented parties of record who were or will immediately be electronically served.
`
`Marc Mercier, Esq.
`Law Offices of Beck & Eldergill, PC
`447 Center Street
`Manchester, CT 06040
`mmercier@beckeldergill.com
`
`Jonathan A. Beatty, Esq.
`Esty & Buckmir LLC
`2285 Whitney Ave., Suite 10
`Hamden, CT 06518
`jbeatty@estyandbuckmir.com
`
` /s/ Ryan A. O’Donnell
`Ryan A. O’Donnell
`
`13
`
`
`
`DOCKET NO. HHD-CV21-6146693-S
`
`GOLD HARP, INC.,
`MAGGIE MCFLY’S 5, INC., GOLDEN
`HARPER RESTAURANT GROUP,
`MAGGIE’S GLASTONBURY INC.,
`AND CHEW-CHEWS, INC.
`
`V.
`HAYBER, MCKENNA & DINSMORE, LLC.
`
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`SUPERIOR COURT
`
`JD OF HARTFORD
`
`AT HARTFORD
`
`SEPTEMBER 15, 2022
`
`STATEMENT OF AMOUNT IN DEMAND
`
`The amount, legal interest or property in demand is $15,000 or more, exclusive of interest
`
`and costs.
`
`MAGGIE MCFLY’S 5, INC., GOLDEN HARPER
`RESTAURANT GROUP, MAGGIE’S
`GLASTONBURY INC., AND CHEW-CHEWS,
`INC.
`
`
`By: /s/ Ryan A. O’Donnell
`Ryan A. O’Donnell
`Maria Rapp
`Ford & Harrison LLP
`CityPlace II, Suite 820
`185 Asylum Street
`Hartford, CT 06103
`Tel.: (860) 740-1355
`Fax: (860) 578-2075
`rodonnell@FordHarrison.com
`mRapp@fordharrison.com
`Juris No. 426943
`
`By: /s/ Eliot B. Gersten
`Eliot B. Gersten
`Pullman & Comley, LLC
`90 State House Square
`Hartford, CT 06103
`Tel: (860) 424-4300
`Fax: (860) 424-4370
`egersten@pullcom.com
`Juris No. 409177
`
`14
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the above was or will immediately be mailed or delivered
`electronically or non-electronically on September 15, 2022 to all counsel and self-represented
`parties of record and that written consent for electronic delivery was received from all counsel
`and self-represented parties of record who were or will immediately be electronically served.
`
`Marc Mercier, Esq.
`Law Offices of Beck & Eldergill, PC
`447 Center Street
`Manchester, CT 06040
`mmercier@beckeldergill.com
`
`Jonathan A. Beatty, Esq.
`Esty & Buckmir LLC
`2285 Whitney Ave., Suite 10
`Hamden, CT 06518
`jbeatty@estyandbuckmir.com
`
` /s/ Ryan A. O’Donnell
`Ryan A. O’Donnell
`
`15
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`
`
`APPENDIX A
`
`DOCKET NO. UWY CV 21-6058932 S
`
`GOLD HARP, INC.,
`MAGGIE MCFLY’S 5, INC., GOLDEN
`HARPER RESTAURANT GROUP,
`MAGGIE’S GLASTONBURY INC.,
`AND CHEW-CHEWS, INC.
`
`
`
`
`
`V.
`HAYBER, MCKENNA & DINSMORE, LLC.
`
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`SUPERIOR COURT
`
`JD OF WATERBURY
`
`AT WATERBURY
`
`MARCH 30, 2021
`
`AMENDED COMPLAINT
`
`This is an action by a group of restaurant owners and operators against a law firm which,
`
`in an effort to generate business, deliberately misled the public and advertised false information.
`
`The defendant Hayber, McKenna & Dinsmore, LLC (“the defendant”) is engaged in a tireless
`
`advertising campaign targeting and inciting Connecticut restaurant employees—a critical
`
`component of which is the use of information that the defendant knows is false and was
`
`deliberately utilized as part of a false and misleading campaign. Indeed, as the defendant is
`
`demonstrably aware, on September 24, 2020, the Connecticut Department of Labor implemented
`
`a series of regulations that explicitly identify the scenarios where a Restaurant owner may include
`
`the gratuities received by its employees in calculating that employee’s minimum wage income.
`
`Ignoring this change in the law, the defendant has repeatedly published multiple different
`
`advertisements targeting the plaintiffs’ employees and intentionally providing misinformation
`
`about the employees’ legal rights. As a direct result of the defendant’s knowingly false
`
`solicitations, Maggie McFly’s restaurant employees have commenced lawsuits (with the defendant
`
`as their counsel), harming the plaintiffs’ reputations and causing substantial economic injury to
`
`the plaintiffs’ businesses. Not surprisingly, the morale of the restaurants’ employees has also been
`
`
`
`negatively impacted. The defendant’s immoral, unethical and unscrupulous conduct is a violation
`
`of the Connecticut Unfair Trade Practices Act.
`
`COUNT 1: VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES
`ACT (CUTPA) CONNECTICUT GENERAL STATUTES §§ 42-110A, ET SEQ.
`
`I.
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`THE PARTIES
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`1. Plaintiff Gold Harp, Inc. is a corporation organized and existing under the laws of the
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`State of Connecticut. It operates the Maggie McFly’s restaurant located in Southbury,
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`Connecticut.
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`2. Plaintiff Maggie McFly’s 5, Inc., is a corporation organized and existing under the laws
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`of the State of Connecticut. It operates the Maggie McFly’s restaurant located in
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`Manchester, Connecticut.
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`3. Plaintiff, Golden-Harper Restaurant Group, Inc., is a corporation organized and existing
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`under the laws of the State of Connecticut. It operates the Maggie McFly’s restaurant
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`located in Brookfield, Connecticut.
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`4. Plaintiff, Maggie’s Glastonbury, Inc., is a corporation organized and existing under the
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`laws of the State of Connecticut. It operates the Maggie McFly’s restaurant located in
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`Glastonbury, Connecticut.
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`5. Plaintiff, Chew Chews, Inc., is a corporation organized and existing under the laws of the
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`State of Connecticut. It operates the Maggie McFly's restaurant located in Middlebury,
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`Connecticut.
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`6. Each of the plaintiffs identified in Paragraphs 1 through 5 shall hereinafter be referred to
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`collectively as “the plaintiffs.”
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`7. Defendant Hayber, McKenna & Dinsmore, LLC is a company organized and existing
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`under the laws of the State of Connecticut and is located at 750 Main Street, Suite 904,
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`2
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`Hartford, Connecticut; Hayber, McKenna & Dinsmore is registered as a law firm with the
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`Connecticut Judicial Branch and bears the Juris Number 426871.
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`II.
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`FACTUAL BACKGROUND
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`The Relevant CT Department of Labor Regulations Prior to September 24, 2020
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`8. Connecticut General Statutes § 31-60 sets forth the relevant law regarding minimum wage
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`pay. Pursuant to that statute, Connecticut restaurants may pay servers less than minimum
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`wage when the servers earn offsetting gratuities. To that end, the statute directs the
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`Department of Labor Commissioner to “adopt regulations and shall recognize, as part of
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`the minimum fair wage, gratuities in an amount equal to thirty-six and eight-tenths per cent
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`of the minimum fair wage per hour for persons, other than bartenders, who are employed
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`in the hotel and restaurant industry, including a hotel restaurant, who customarily and
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`regularly receive gratuities.”
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`9. The purpose of this statute and the resulting Department of Labor regulations is to set up a
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`mechanism to balance the rights of the employee to receive the minimum wage with the
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`ability of the employer to account for gratuities in calculating the employees’
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`compensation.
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`10. In accordance with General Statutes § 31-60(b), the Labor Commissioner adopted a series
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`of Regulations governing the payment of less than minimum or overtime wage. See Regs.
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`Conn. State Agencies § 31-62-E3 and E4.
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`11. Prior to September 24, 2020, Regs. Conn. State Agencies § 31-62- E3 and E4 stated the
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`following:
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`a. Regs. Conn. State Agencies § 31-62-E3 (“E3”) provided that “Gratuities shall be
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`recognized as constituting a part of the minimum fair wage when all of the
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`3
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`following provisions are complied with: (a) The employer shall be engaged in an
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`employment in which gratuities have customarily and usually constituted and have
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`been recognized as part of his remuneration for hiring purposes, and (b) the amount
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`received in gratuities claimed as credit for part of the minimum fair wage shall be
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`recorded on a weekly basis as a separate item in the wage record even though
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`payment is made more frequently, and (c) each employer claiming credit for
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`gratuities as part of the minimum fair wage paid to any employee shall obtain
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`weekly a statement signed by the employee attesting that he has received in
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`gratuities the amount claimed as credit for part of the minimum fair wage. Such
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`statement shall contain the week ending date of the payroll week for which credit
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`is claimed. Gratuities received in excess of twenty-three percent of the minimum
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`fair wage established by subsection (j) of section 31-58 of the Connecticut General
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`Statutes per hour, need not be reported or recorded for the purpose of this
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`regulation.”
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`b. Regs. Conn. State Agencies § 31-62-E4 (“E4”) provided that “If an employee
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`performs both service and non-service duties, and the time spent on each is
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`definitely segregated and so recorded, the allowance for gratuities as permitted as
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`part of the minimum fair wage may be applied to the hours worked in the service
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`category. If an employee performs both service and non-service duties and the time
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`spent on each cannot be definitely segregated and so recorded, or is not definitely
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`segregated and so recorded, no allowances for gratuities may be applied as part of
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`the minimum fair wage.”
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`4
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`12. These regulations’ ambiguous and confusing language led to an influx of litigation against
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`restaurant owners. Accordingly, on September 24, 2020, the Connecticut Department of
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`Labor, operating in accordance with new legislation passed by the General Assembly,
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`implemented a series of new “tip credit” regulations and, in doing so, repealed and
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`amended the previous regulations, including “E3” and “E4.”
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`The Relevant Department of Labor Regulations After September 24, 2020
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`13. In its place, the Department of Labor set forth an “80/20 rule,” pursuant to which an
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`employer may apply the tip credit for an entire shift without segregating the service and
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`non-service duties unless a “service employee performs non-service duties for two hours
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`or more, or for more than 20 percent of the service employee’s shift, whichever is less.”
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`See Regs. Conn. State Agencies § 31-62-E3a.
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`14. In addition, the Department of Labor set forth a nonexhaustive list of 23 “duties incidental
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`to service,” significantly expanding the definition of “incidental service duties.” These 23
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`tasks include, but are not limited to, preparing or serving specialty dishes at tables as
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`required, cleaning tables or counters after patrons have finished dining, cleaning and
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`tidying up server stations and drink stations, preparing hot, cold, and mixed drinks for
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`patrons, including brewing coffee and chilling bottles of wine, and escorting customers to
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`their tables. See Regs. Conn. State Agencies § 31-62-E2(d). This regulation makes clear
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`that restaurants whose servers perform service duties and duties “incidental to service” may
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`take a credit for tips received from customers toward satisfaction of the minimum wage.
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`The Defendant’s Solicitations and Untrue Statements
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`15. Despite this change in the law, since September 24, 2020, the defendant has engaged in a
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`series of advertisements targeting Connecticut restaurant service-employees—and
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`5
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`specifically, service-employees employed by the plaintiffs—to solicit these employees as
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`potential clients for the defendant’s financial gain.
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`16. Through these advertisements, the defendant makes a number of false, unfair, and
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`deceptive claims regarding Connecticut “tip credit” regulations. The defendant’s
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`advertising campaign deliberately ignores the fact that, as of September 24, 2020,
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`Connecticut tip credit regulations have changed. Rather than acknowledge this change in
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`the law—and diluting the incendiary appeal of its advertisements with nuance—the
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`defendant’s advertisements accuse the plaintiffs of violating laws and regulations that no
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`longer exist.
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`17. Specifically, these advertisements indicate that Maggie McFly’s restaurant servers are
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`victims of wage theft, or have otherwise been paid a subminimum wage, and lead the
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`viewer to believe that the restaurant employees are still owed the “full minimum wage” if
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`they were assigned any “incidental service duties” at all.
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`18. The defendant’s advertisements are designed to, and, in fact, create the false impression
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`amongst the restaurants’ employees and patrons that the law in Connecticut requires
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`restaurants to pay the full minimum wage for all “incidental service duties” without
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`exception, and that failure to do so is a violation of the law.
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`19. Since December 20, 2020 through the present, the defendant has published at least fourteen
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`(14) deceptive and misleading advertisements.
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`a. Advertisement No. 1 (Facebook Unique Identifier 722454378386142),
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`Advertisement No. 2 (Facebook Unique Identifier 241867827476458) and
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`Advertisement No. 3 ( Facebook Unique Identifier 4696420510428267) state the
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`following: “Restaurants must pay their servers the full minimum wage, currently
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`6
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`$12.00/hr. in Connecticut, for their entire shift if they make those servers do side-
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`work and fail to pay the side-work at the full minimum wage. Servers and
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`bartenders deserve their full pay as required by Connecticut law.”
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`b. Advertisement No. 4 (Facebook Unique Identifier 3634493183301022) and
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`No. 5 (Facebook Unique Identifier 1032035613955959) cont
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