17‐3870 Vasto v. Credico (USA) LLC 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of April, two thousand nineteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges. PHILIP VASTO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ZAO YANG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ALEX TORRES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, XIAOJ ZHENG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs‐Appellants, v. No. 17‐3870 CREDICO (USA) LLC, CROMEX INC., MEIXI XU, Defendants‐Appellees, JESSE YOUNG, Defendant. 1 Appearing for Plaintiffs‐Appellants: ERIC H. JASO (Jason Spiro, on the brief), Spiro Harrison, Short Hills, NJ. Appearing for Defendant‐Appellee Credico: JASON C. SCHWARTZ (Greta B. Williams, Ryan C. Stewart, Gibson, Dunn & Crutcher LLP, Washington, DC, Theodore J. Boutrous Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, on the brief), Gibson, Dunn & Crutcher LLP, Washington, DC. Appeal from a judgment of the United States District Court for the Southern District of New York (Engelmayer, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on October 31, 2017, is AFFIRMED. Plaintiffs‐Appellants Philip Vasto, Zao Yang, Alex Torres, and Xiaoj Zheng (“Plaintiffs”) appeal from the judgment of the district court in favor of Defendants‐ Appellees Credico (USA) LLC (“Credico”), Cromex Inc. (“Cromex”), and Cromex’s owner, Meixi Xu (collectively, “Defendants”). Plaintiffs each worked as Agents for Cromex for brief periods in 2015. Cromex was a subcontractor for Credico, which in turn was retained by Sprint to solicit customers for its Assurance Wireless brand phones and services, a government‐subsidized program providing mobile services to qualifying low‐ income households. To that end, Plaintiffs met at Cromex’s office each morning for “atmosphere meetings,” spent most of the day in the field soliciting or collecting Assurance Wireless applications, and then, upon returning to the office, participated in a 2 “bell and gong” ritual during which they would announce the number of customers they had signed up that day. App. 609–12. Plaintiffs later brought this putative class action, insisting that they were misclassified as independent contractors, rather than employees, in violation of the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §§ 201 et seq., as well as New York and Arizona ...
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