McQuaid v. Capital Stack, LLC, Et al. Civil Case No.: 18-cv-09230

New Class and Collective Action filed in the Southern District of New York

McQuaid v. Capital Stack, LLC, and Eprodigy ACH, LLC, and Eprodigy Operations, LLC, and David Rubin, individually, and Brian Stulman, individually, Civil Case No.: 18-cv-09230

On October 9, 2018, Plaintiff, Mr. McQuaid, on behalf of himself, individually, and on behalf of all others similarly-situated, filed a class and collective action lawsuit in the United States District Court Southern District of New York against CAPITAL STACK, LLC, (“Capital Stack”), EPRODIGY ACH, LLC (“ACH”), and EPRODIGY OPERATIONS, LLC, (“Operations” and collectively with ACH, where appropriate, as “eProdigy”), (all three, together where appropriate, as “Lenders”), and DAVID RUBIN (“Rubin”), individually, and BRIAN STULMAN (“Stulman”), individually, (all five, collectively where appropriate, as “Defendants”), alleging upon knowledge as to himself and his own actions and upon information and belief as follows:

Mr. McQuaid worked for Defendants – – three Manhattan-based limited liability companies that operate as a single enterprise and/or joint employer that lend money to small and medium-sized businesses, as well as their Chief Executive Officer and Executive Vice President, both of whom served as Plaintiff’s direct supervisors – – in various positions from on or about August 1, 2014 until November 5, 2015. Defendant Capital Stack originally hired Plaintiff on or about August 1, 2014 as a sales associate in which his primary job duties included pitching loan deals to business owners from Defendants’ office in New York, New York, and receiving and processing applications and bank statements from business owners in connection with their loan applications.

In or around November of 2014, Plaintiff became a “manager of sales.” While Plaintiff’s title changed, his job duties remained substantially the same. Plaintiff was a “manager” in name only, as his primary duties continued to involve pitching and closing loan deals to business owners. In or around February of 2015, Plaintiff became an “ISO manager.” As an ISO (independent sales organization) manager, Plaintiff worked with third-party ISOs, which were independent brokers or salespeople from other companies, to provide funding for deals that the ISOs could not fund on their own. Plaintiff also continued to perform his primary duty of pitching and closing loan deals to business owners, as described above. In early 2015, Defendant Rubin created Defendant eProdigy to perform the same functions as Defendant Capital Stack and to hold Defendant Capital Stack as a subsidiary. Defendant eProdigy had and has as its principal place of business the same address as Defendant Capital Stack, the same two people who run the business as before – – Defendant Rubin and Defendant Stulman – – and uses the same employees as Capital Stack. To that end, in June 2015, Defendants instructed Plaintiff to substitute “eProdigy” for “Capital Stack” in his email signature. In or around August 2015, Defendants again changed Plaintiff’s title, this time to a “collections manager,” a role which he held for the remainder of his employment with Defendants. Again, during this time, Plaintiff also continued performing his primary duty of pitching and closing loan deals to business owners. Despite his various titles as a “manager,” at no point during his employment did Plaintiff have any meaningful discretion or managerial responsibilities. For example, he played no role in employee hiring or firing decisions or employee disciplinary matters, and he was not responsible for determining any employee work schedules.

Throughout his employment, regardless of his title at the time, Defendants required Plaintiff to work, and Plaintiff did work, five days per week, Monday through Friday, from between 7:00 a.m. and 7:30 a.m. until between 5:30 p.m. and 6:00 p.m. each day without a scheduled or uninterrupted break. In addition, Defendants required Plaintiff to work, and Plaintiff did in fact work, one-to-two Saturdays each month, for approximately six hours per day, from 9:00 a.m. to 3:00 p.m. without a scheduled or uninterrupted break. Thus, throughout his employment, Defendants required Plaintiff to work, and Plaintiff did work, between fifty-two and one-half hours and sixty-one hours each week, for an average of approximately fifty-seven hours per week. Defendants willfully failed to pay Plaintiff the wages lawfully due to him under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). Specifically, for the entirety of his employment, Defendants required Plaintiff to work, and Plaintiff did in fact work, in excess of forty hours each week or virtually each week, yet Defendants willfully misclassified him as an exempt “manager” and paid him a flat weekly salary, and therefore failed to compensate Plaintiff at any rate of pay, let alone at the statutorily required rate of one and one-half times his regular rate of pay for all hours that he worked in excess of forty each week, in violation of the FLSA and the NYLL. Moreover, Plaintiff’s weekly wages fell below the minimum that either the FLSA or the NYLL or both required at various points of his employment for each hour worked, resulting in minimum wage violations under either or both statutes.

Defendants paid and treated all their sales associates, “manager of sales,” “ISO manager,” and “collections manager” employees in this same manner. Accordingly, Plaintiff brings this lawsuit against Defendants pursuant to the collective action provisions of the FLSA, on behalf of himself and on behalf of all others similarly-situated who suffered damages because of Defendants’ willful violations of the law.

If any individual is or has previously been an employee of the Defendants named in the lawsuit and/or has information that may be relevant to this case, please contact Borrelli & Associates, P.L.L.C. as soon as possible through one of our websites, www.employmentlawyernewyork.com or www.516abogado.com, or any of our phone numbers: (516) 248–5550, (516) ABOGADO, or (212) 679–5000.