Full opinion text
OPINION & ORDER PAUL A. ENGELMAYER, District Judge: This is the latest in a series of pretrial decisions in this case, in which a class of exotic dancers seeks to recoup pay which they allege was denied them in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), §§ 190 et seq. & §§ 650 et seq. Plaintiffs bring claims for: (1) failure to pay minimum wages under the FLSA (“Claim One”); (2) failure to pay minimum wages under the NYLL (“Claim Two”); (3) unlawful requesting and receiving portions of wages under NYLL § 198-b (“Claim Three”); (4) unlawful retention of gratuities under NYLL § 196-d (“Claim Four”); and (5) unlawful deductions from wages under NYLL § 193(3)(a) (“Claim Five”). The Court’s prior decisions have held, most centrally, that plaintiffs were employees of Rick’s Cabaret NY strip club (“Rick’s NY” or “the Club”), and thereby entitled to the protections of the FLSA and NYLL. Today’s decision resolves other, recently briefed issues, and narrows to a discrete few the issues to be resolved at trial. I. Recap of Prior Rulings and Summary of Today’s Rulings To recap the Court’s prior rulings: On September 10, 2013, the Court held that plaintiffs were employees of Rick’s NY, that they were therefore entitled to be paid a minimum wage under the FLSA and the NYLL, and that the Club’s duty under the FLSA to pay such a wage was not discharged by the payment to the dancers, by customers, of “performance fees” for dances. See Dkt. 460 (“September 2013 Decision”), reported at Hart v. Rick’s Cabaret Int’l, Inc., 967 F.Supp.2d 901 (S.D.N.Y.2013). The Court also held that defendant Peregrine Enterprises, Inc. (“Peregrine”) was an employer of plaintiffs and therefore liable to the extent of any finding of liability. Id. But, the Court held, whether the other two defendants— RCI Entertainment New York (“RCI NY”) and Rick’s Cabaret International, Inc. (“RCII”) — were also plaintiffs’ employers turned on material factual disputes and could not be resolved on summary judgment. Id. The Court also granted summary judgment to plaintiffs on defendants’ counterclaim for unjust enrichment.' Id. On November 18, 2013, the Court: (1) denied defendants’ motion for reconsideration of the Court’s holding that, even after February 28, 2010, plaintiffs were employees of Rick’s NY; (2) denied defendants’ motion to set the class period end-date as February 28, 2010, or alternatively as December 20, 2010; the Court instead set the class period end-date as October 31, 2012; and (3) granted plaintiffs’ motion for summary judgment on Claim Five, holding that the Club’s fines, fees, and tip-out requirements violated NYLL § 193. See Dkt. 487 (“November 2013 Decision”), reported at Hart v. Rick’s Cabaret Int’l, Inc., No. 09 Civ. 3043(PAE), 2013 U.S. Dist. LEXIS 164354 (S.D.N.Y. Nov. 18, 2013). Together, these decisions established that Peregrine is liable to plaintiffs on Claims One, Two, and Five. This decision resolves the following five additional pre-trial motions: (1) On the cross-motions for summary judgment on whether performance fees paid by customers to the dancers “offset” wages under the NYLL, and therefore reduce damages on Claim Two, the Court holds that, much as such fees do not offset defendants’ minimum wage obligations under the FLSA, they do not offset defendants’ minimum wage obligations under the NYLL. (2) On the cross-motions for summary judgment on whether Peregrine is liable on Claim Four for retaining gratuities in violation of NYLL § 196-d — specifically, the $2 that defendants systematically retained, without disclosure to customers, of each $24 “Dance Dollar” purchased by customers by means of a credit card — the Court holds that Peregrine is so liable. (3) The Court denies defendants’ motion to strike the expert reports and testimony of plaintiffs’ expert witness, Dr. David Crawford. (4) The Court denies defendants’ motion to decertify the Rule 23(b)(3) class, which was initially certified by Judge Koeltl on December 20, 2010.- See Dkt. 253 (“December 20, 2010 Decision”), reported at Hart v. Rick’s Cabaret Int’l Inc., No. 09 Civ. 3043(JGK), 2010 WL 5297221, at *1-2 (S.D.N.Y. Dec. 20, 2010). (5) The Court grants, in part, plaintiffs’ motion for partial summary judgment against Peregrine as to damages on Claims One (FLSA minimum wage) and Two (NYLL minimum wage); grants in full plaintiffs motion for summary judgment as to damages on Claims Four (NYLL unlawful retention of gratuities); and grants in part plaintiffs’ motion for summary judgment as to Count Five (NYLL unlawful fines and fees). These, in conjunction with the Court’s previous rulings, leave the following issues to be resolved at trial: whether (1) plaintiffs are entitled to additional damages on Claims One, Two, and Five, beyond those which the Court holds can properly be awarded on summary judgment; (2) the violations of the FLSA (Claim One) and the NYLL (Claims Two, Four and Five) were willful and/or made other than in good faith; these respective determinations bear on the duration of Peregrine’s FLSA liability and whether additional, liquidated damages are available under the FLSA and NYLL; and (3) RCI N.Y. and RCII are, along with Peregrine, employers of plaintiffs and, thus, jointly liable with Peregrine for all damages. II. Legal Standards for Summary Judgment To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” • to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed. R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation omitted). Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003)). III. Cross-Motions for Summary Judgment on “Offset” and Retention of Gratuities A. Defendants’ Claim that Performance Fees “Offset” Its NYLL Obligations The Court first addresses defendants’ argument that the Club may use the performance fees that customers paid to its dancers to offset the Club’s minimum-wage obligations under the NYLL. The Court previously rejected defendants’ parallel argument under the FLSA. See September 2013 Decision, at 35-48. 1. Facts The pertinent facts are set out in full in the Court’s September 2013 Decision, rejecting the Club’s parallel claim under the FLSA. See id. at 35-38. In brief, performance fees were paid to dancers for time they spent with customers at Rick’s NY. Customers paid $20 to dancers for each personal dance — i.e., a lap dance or table dance — that they received from a dancer. SF ¶¶ 180-81. Customers also paid dancers for spending time with them in one of the Club’s semi-private rooms — the fee was set by Rick’s at $100 for 15 minutes, $200 for 30 minutes, and $400 for an hour. DeAngelo Deck ¶ 5. Customers- also paid a separate fee to the Club for using the rooms. Id. ¶ 6. Customers could pay performance fees in one of two ways: If paying in cash, the customer paid the dancer directly. The dancer retained 100% of that cash payment, which was not recorded in any way by the Club. SF ¶ 220. Alternatively, the customer could acquire from the Club, by credit card, a “Dance Dollar” voucher. Each voucher cost $24 and entitled the customer to one. personal dance. SF ¶ 185. At the end of each shift, dancers who had received Dance Dollars from customers for performing dances could exchange these vouchers for cash from the Club’s cashier. SF ¶ 190. The dancer received $18 for each redeemed Dance Dollar, and the Club retained the $6 balance. Id. ¶¶ 185, 190. Rick’s did not record these payments in its gross receipts. Only by analysis of records undertaken after this, litigation was initiated were individual dancers’ receipts from redeemed Dance Dollars reconstructed. Prakash Deck Ex. 1 (“Dr. Crawford Expert Report”). 2. Analysis Defendants, characterizing the performance fees paid to dancers by credit-card-using customers as “service charges,” argue that the Club may use these fees to offset, or discharge altogether, its minimum wage obligations under the NYLL. For two broad reasons, the Court rejects defendants’ claim. First, there is no charter under the NYLL for an employer to treat a performance fee as either a “wage” or as an offset to its statutory wage obligations. The text of the NYLL — as well as its implementing regulations, its purpose, and the cases interpreting it — does not support defendants’ interpretation. Second, the line of cases beginning with Samiento v. World Yacht, Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990 (2008), on which defendants rely, is inapposite. These cases address the distinction between a service charge, on the one hand, and a gratuity (or a purported gratuity), on the other. They do so to determine who — as between the employer and the employee — is entitled to keep a customer payment. But that is not at issue here— the dancers undisputedly were entitled to, and did, keep $18 of each Dance Dollar. And the World Yacht line of cases does not supply any authority for allowing an employer to use direct customer payments to employees after the fact to offset an employer’s wage obligations. And even if the World Yacht line did permit customer payments classified as service charges to be used retrospectively to offset an employer’s wage obligations, the payments here are not properly so classified. The World Yacht standard looks to a customer’s reasonable expectations; here, a reasonable customer would have understood the performance fees which customers paid dancers as gratuities belonging to particular dancers, not as service charges belonging to the Club. a. The NYLL does not allow an employer to treat a performance fee as a wage or as an offset to its statutory wage obligations. Most fundamentally, there is no charter under the NYLL for an employer to treat such a performance fee, or any other non-gratuity charge paid by customers, as either a “wage” or as an offset to its statutory wage obligations. The NYLL defines “wage” as “the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis.” NYLL § 190(1). “ ‘Wage’ includes allowances, in the amount determined in accordance with the provisions of this article, for gratuities and, when furnished by the employer to employees, for meals, lodging, apparel, and other such items, services, and facilities.” NYLL § 651(7). The NYLL also requires employers to treat wages in certain ways, including paying wages with frequency and regularity, see NYLL § 191, and to give employees notice of these wages and to keep records of them, see NYLL § 195. Defendants — who have taken the position that the dancers were not employees- — do not claim that the performance fees were themselves “wages,” and under the statute, they manifestly were not. The performance fee paid by a customer to the dancer for a dance can certainly be viewed as a form of “earnings ... for services rendered.” But, otherwise, these performance fees lack the characteristics of wages as defined by the NYLL. Most critically, the performance fees were not “furnished by the employer to employees.” NYLL § 651(7). Instead, whether paid in cash or in Dance Dollars purchased by means of a credit card, they were made directly by the Club’s customers to its dancers. Only by happenstance was the Club momentarily involved, in some circumstances: where the customer paid by credit card to acquire Dance Dollars, the dancer needed to convert that scrip into cash, which led the Club to play a minimal role in the dancer’s receipt of money. See September 2013 Decision, at 46 (“[T]he performance fees were paid directly by the customer to the dancer, either in the form of cash or Dance Dollars; only the process of converting these vouchers into liquid currency brought Rick’s NY, fleetingly, into the transaction.”). And, in redeeming these Dance Dollars, the Club did not treat the $18 per Dance Dollar that it remitted to the dancers consistent with their being wages. It did not keep any record of these payments; it did not give employees notice that it was treating them as wages (e.g., by giving them a wage statement listing these amounts); it did not take the dancer’s $18 share of the performance fee into gross receipts; and it did not make any mandatory wage deductions (e.g., for Social Security and Medicare) from these payments. The Club also failed to comply with NYLL § 191, which requires that wage payments be made with frequency and regularity; the Club instead redeemed Dance Dollars episodically and non-systematically, doing so only when the dancer presented Dance Dollars for redemption. And, in failing to keep any record of these performance fees save via the credit-card payment process, the Club breached NYLL § 195, which imposes mandatory notice and record-keeping requirements with respect to wage payments. Finally, these payments do not fit within any of the limited categories of payments by an employer on an employee’s behalf, e.g. for meals or clothing, for which, under NYLL § 651(7), a wage “allowance” may be taken. There is no other provision of the NYLL that supports treating a performance fee paid by a customer to a dancer as a wage or an offset to her employer’s NYLL minimum-wage obligation. The regulations implementing the NYLL likewise provide no support for defendants’ notion that they may use money paid by customers to workers as an offset to their statutory minimum-wage obligation. Amplifying on the wage allowances authorized by NYLL § 651(7), these regulations do allow employers, under specified conditions, to apply a “tip credit” and to apply some of its payments for meals and lodging towards wages. See N.Y. Comp.Codes R. & Regs. tit. 12, § 137-1.5, 1.9; id. § 146-1.3; NYLL § 652(4)-(6); see also Padilla v. Manlapaz, 643 F.Supp.2d 302, 309 (E.D.N.Y.2009). Defendants do not claim that these allowances apply here. And they plainly do not. There is no authority for treating customer-paid service charges as an offset to wages where the Club did not treat them as wages. And, assuming arguendo that the $18 portion of each Dance Dollar were treated as a “tip” (as opposed to a service charge), the Club would not satisfy the NYLL’s requirements under which an employer may apply a “tip credit” against its wage obligations. These include “furnish[ing] to each employee a statement with every payment of wages listing ... allowances ... claimed as part of the minimum wage.... ” N.Y. Comp.Codes R. & Regs. tit. 12, § 137-2.2; see also id. at § 146-1.3 (“An employer may take a credit towards the basic minimum hourly rate if a service employee or food service worker receives enough tips and if the employee has been notified of the tip credit as required in section 14.6-2.2 of this Part. ”) (emphasis added); id. at § 146-2.2 (“Prior to. the start of employment, an employer shall give each employee written notice of the employee’s regular hourly pay rate, overtime hourly pay rate, the amount of tip credit, if any, to be taken from the basic minimum hourly rate, and the regular payday. The notice shall also state that extra pay is required if tips are insufficient to bring the employee up to the basic minimum hourly rate.”). It is undisputed that defendants did not provide the dancers with any such statement. Instead, the Club’s bid to treat $18 from each Dance Dollar as a wage offset arose much later, during this litigation, to limit the Club’s damages exposure. Notably, insofar as it lacks any mechanism to use service charges as an offset to wages, the NYLL contrasts with the FLSA. As explained in the Court’s September 2013 Decision, the regulations implementing the FLSA provide for narrow, defined circumstances under which a “compulsory charge for service ... imposed on a customer by an employer’s establishment,” 29 C.F.R. § 531.55(a), and distributed by the employer to its employees, “may be used in their entirety to satisfy the monetary requirements of the Act,” 29 C.F.R. § 531.55(b). As the Court has explained, for such a charge to constitute a service charge that may be applied against an establishment’s FLSA minimum-wage duty, the establishment must have included this charge in its gross receipts. See September 2013 Decision, at 39 (collecting cases); see also McFeeley v. Jackson St. Entm’t LLC, No. 12 Civ. 1019(DKC), 2012 WL 5928769, at *4 (D.Md. Nov. 26, 2012) (“ ‘[A]n employer must include payments in its records as gross receipts as a prerequisite to ‘service charge’ classification under the FLSA.’ ” (quoting Reich v. ABC/York-Estes Corp., No. 91 Civ. 6265(BM), 1997 WL 264379, at *5 (N.D.Ill. May 12, 1997))). Otherwise, the charge is treated, under the FLSA, as a “tip” and may not be applied against the establishment’s minimum-wage obligations. As the Court further explained, this bright-line requirement of inclusion in gross receipts serves important goals. It advances the FLSA’s goal of assuring that the employee is paid, and with mandatory deductions (e.g., Social Security, Medicare) taken from the employee’s wages. By contrast, permitting an employer’s FLSA minimum-wage obligation to be satisfied by payments not included in gross receipts but shown only later {e.g., in litigation) to have been made to a worker by customers would diminish these protections and invite “intolerable problems of proof.” September 2013 Decision, at 40-42. Rick’s NY failed to satisfy these standards. The only part of the $24 credit-card payment for each Dance Dollar that the Club had included in its gross receipts was the $6 portion that the Club kept for itself. The $18 balance at issue here, which the Club passed along to the dancer after the customer’s credit card was charged, was unrecorded, and was not included in the Club’s gross receipts. These payments, and the aggregate amounts paid to each dancer, were reconstructed only later, during this litigation. The Court therefore held that Rick’s NY could not apply any part of the performance fees paid by customers to reduce its minimum wage obligation under the FLSA. Id at 42. In asking the Court to recognize an offset to their NYLL minimum-wage obligations, defendants thus not only ask the Court to rewrite that statute to include an offset unsupported by the NYLL’s text, implementing regulations, and the case law. Defendants also ask the Court to devise an offset only loosely patterned on federal law. Defendants cherry-pick the one aspect of the FLSA regime that favors them (the broad concept of a wage offset for service charges) while airbrushing out the FLSA’s strict limitations for when such an offset may lawfully be made. The Court declines this invitation to so legislate from the bench. Should defendants wish to revise the NYLL to provide the offset they seek, their proper audience is the New York State Legislature. Defendants’ notion that an offset against minimum wages ought be allowed here would also undermine key purposes of the NYLL, such that, even if it were open to the Court to impute such an offset to the statute, the Court would not do so. The Club has not kept records of these charges, paid taxes on them, included them on any wage statement or information returns (e.g., Forms W-2 or 1099), or used them to calculate deductions for Social Security and Medicare. Under these circumstances, allowing such charges to offset an employer’s statutory wage obligations would undermine these important programs and facilitate non-payment of taxes to federal and state authorities. It would also put employers like the Club at an undeserved advantage over competitors who pay workers lawfully by means of paychecks, with wages fully subject to taxes and payroll deductions.- And it would undermine the NYLL’s guarantee that the required minimum wage be paid in full and on a regular basis. See N.Y. Comp.Codes R & Regs. tit. 12, § 146-2.6 (“The minimum wage provided by this Part shall be required for each week of work, regardless of the frequency of payment.”); Karic v. Major Automotive Cos., 992 F.Supp.2d 196, 201 (E.D.N.Y.2014) (“NYLL indisputably requires that employers pay minimum wage and overtime on a weekly basis....”) (emphasis in original). To be sure, under the NYLL, there is a line of authority, beginning with the decision of the New York Court of Appeals in Samiento v. World Yacht, Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990 (2008), under which courts from time to time are called upon to differentiate between service charges, on the one hand, and gratuities or purported gratuities. Defendants 'seize on these cases in support of their offset claim. But the inquiry conducted pursuant to this line of authority serves a wholly different purpose. It determines, as between the employer and the employee, who is entitled to keep these customer payments. Under NYLL § 196-d, “[n]o employer or his agent ... shall demand or accept ... any part of the gratuities[ ] received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” Courts examining under this provision whether a mandatory payment is a gratuity or a “charge purported to be a gratuity,” as opposed to a “service charge,” therefore inquire, based on the totality of the circumstances, how a reasonable customer would have viewed the payment. See, e.g., World Yacht, 10 N.Y.3d at 79, 854 N.Y.S.2d 83, 883 N.E.2d 990; Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 328-29 (S.D.N.Y.2010) (“Under the World Yacht standard, ‘[wjhether a charge purports to be a gratuity is measured by whether a reasonable patron would understand that a service charge was being collected in lieu of a gratuity.’ ” (quoting Krebs v. Canyon Club, Inc., 22 Misc.3d 1125(A), 880 N.Y.S.2d 873, 874, 2009 WL 440903 (N.Y.Sup.Ct.2009))); Maldonado v. BTB Events & Celebrations, Inc., 990 F.Supp.2d 382, 390-91 (S.D.N.Y.2013). Where a reasonable customer would view a mandatory charge as a gratuity — making it less likely that the customer would give the employee a separate tip — the payment belongs to the employee. Otherwise, the employer may retain it. The World Yacht line of cases does not, however, hold that yvhere an employer imposes a mandatory charge on customers but does not treat it as a wage, that this charge, if construed as a service charge rather than a tip, may be used after-the-fact to offset the employer’s minimum-wage duty under the NYLL. Defendants cite no authority for that proposition. And, as noted, allowing an employer post hoc to treat these payments as offsets to its statutory wage obligation would dis-serve the statute’s purposes. b. Even if the World Yacht standard applies, it does not help defendants. In any event, the Court is firmly persuaded that, under the World Yacht standard, a reasonable customer would have regarded the mandatory performance fees that customers paid to the dancer as gratuities belonging to the dancer, not as service charges belonging to the Club. Therefore, even if a mandatory service charge could in theory be treated — long after the fact — as wages or an offset to wages, the customer payments to dancers here were not such service charges. The factors bearing on the reasonable expectations of the customer tilt heavily, in fact, towards viewing the performance fees as tips. Significantly, these fees were paid directly by customers to dancers, and were largely paid in the form of cash, following a personalized service (e.g., a dance or a lap dance). These cash payments, which were of varying size and were completely unrecorded by Rick’s NY in any form, undeniably were tips. And as the Court previously stated in its analysis under the FLSA: The accident that a subset of the performance fees happened to have been paid by credit card and took the form of vouchers, and therefore that these fees temporarily passed from the dancer to Rick’s NY before being converted to cash, does not alter their essential character. That Rick’s NY maintained incomplete records of the total performance fees paid, with partial records being generated only by the happenstance that some customers chose to pay by credit card, does not make the recorded payments qualitatively different from the non-recorded ones. September 2013 Decision, at 45. As the Court further noted: [T]he performance fees (both the cash fees and the $18 portion of the credit-card-paid fees retained by the dancers) were understood by Rick’s to be the property of the dancers.... There is no record evidence that customers perceived the money they paid the dancers (whether in cash or Dance Dollars) otherwise, and the circumstances would not support such an inference. Finally], the performance fees were paid directly by the customer to the dancer, either in the form of cash or Dance Dollars; only the process of converting these vouchers into liquid currency brought Rick’s NY, fleetingly, into the transaction. Id. at 45-46 (emphasis added). These factors, considered together, persuade the Court that a reasonable customer would have understood the performance fees to be gratuities as opposed to service charges. Notably, the Club, in now arguing that these fees were service charges under the NYLL, has not pointed to any evidence contradicting the Court’s conclusion that “[t]here is no record evidence that customers perceived the money they paid the dancers (whether in cash or Dance Dollars)” to be anything other than the property of the dancers, and that “the circumstances would not support such an inference.” Id. at 46. That the credit-card paid performance fees were a substitute for cash-paid fees is particularly significant. A reasonable customer paying that dancer $20 (or more) in cash would have expected, accurately, that the dancer would keep the entire amount. There is no sound reason to conclude that a customer who chose to pay in Dance Dollars would have viewed these payments as any less a gratuity to be retained by the dancers. Indeed, customers who purchased Dance Dollars were told that the service charge associated with their credit card transaction was 20%. See PL 56.1 ¶¶ 620-21. A reasonable customer who could do basic math would deduce that, because the total cost to him of a Dance Dollar was $24, the service charge associated with his credit card transaction was $4 — ie., 20% of $20. See id. ¶ 621 (“Q: What are customers told at the time they purchase a dance dollar? A: They’re told that they are charged 20 percent and that the dance dollars expire at the end of the day. Q: When you say that they’re told that they’re charged 20 percent, is that like a 20 percent service fee on top of the dance dollar? A: Yes. Excuse me. They’re told it’s a 20 percent service charge. Q: And so that’s the $4 which is 20 percent of $20? A: Yes.”). The balance, or $20, would reasonably be viewed by a customer as a gratuity. In the face of these factors, defendants make several arguments. Mostly, they emphasize that the Club set the price for lap dances and other performances. That factor does weigh in the Club’s favor in considering the reasonable expectations of a customer. But defendants overreach when they assert that there is “no precedent for the common sense defying proposition that the actual price for the services being charged is a gratuity.” Def. Br. 7. A number of cases, including World Yacht itself, have squarely held, that an employer’s mandatory charge may constitute or purport to be a gratuity within the meaning of the NYLL. See World Yacht, 10 N.Y.3d at 81, 854 N.Y.S.2d 83, 883 N.E.2d 990 (stating that “the statutory language of Labor Law § 196-d can include mandatory charges”). And in Chan v. Triple 8 Palace, Inc., No. 03 Civ. 6048(GEL), 2006 WL 851749 (S.D.N.Y. Mar. 30, 2006), also involving exotic dancers, Judge Lynch cited to a Northern District of Illinois case, which had held that “five-dollar payments for ‘table dances’ at an exotic dance club were ‘tips,’ despite the fact that they were fixed minimum payments, because the payments were made directly to the dancers rather than as a portion of a payment made to the employer, and because the employer did not include the payments in its gross receipts.” Id. at *3 (citing Reich, 1997 WL 264379, at *5-*7). As Judge Lynch recognized, whether a service payment is a tip turns on more than whether such a payment exceeds a base charge for a service. See id.; see also Thornton v. Crazy Horse, Inc., No. 3:06 Civ. 0025KTMB), 2012 WL 2175753, at *9 (D.Alaska June 14, 2012) (holding that payments to exotic dancers were tips, and explaining that “[although the payments were not made ‘voluntarily’ in the sense that the customers were obligated to pay some amount for the services they were receiving, the customer could choose the dancer to request the dance from, and could pay more than the price set by the club”). Notably, the DOL’s definition of a gratuity under the FLSA — “a sum presented by a customer as a gift or gratuity in recognition of some service performed for him,” 29 C.F.R. § 531.52 — also permits treating a mandatory charge as a gratuity. Defendants also rely on a printed disclaimer introduced on the third version of the Dance Dollar, effective August 2008, which stated that the Dance Dollar was “not valid for gratuities.” See PI. Ex. 60. But even assuming that a customer in the sybaritic setting of an exotic nightclub would choose or have the focus to read (let alone absorb) this disclaimer, this prose is far from clear. It does not state that the performance fee itself is not a gratuity. A reasonable customer, mindful that the Dance Dollar functioned as an alternative to paying the dancers in cash, could reasonably conclude that the disclaimer meant only that a Dance Dollar was not valid for use to pay gratuity for drinks or other items purchased in the Club. Defendants also rely on the fourth version of the Dance Dollar, implemented in May 2011, to support their characterization of the Dance Dollars paid from that point forward. Those Dance Dollars stated, inter alia, that “Entertainers do not retain the full amount of fees paid for personal dances” and “Payments for personal dances are mandatory charges & not gratuities.” See Pl.Ex. 295. The first of these statements is largely beside the point. Whether customers believed dancers retained only a subset (e.g., $20) when customers paid $24 for a Dance Dollar would not change their expectations as to what this subset represented. The second statement, assuming it were read, would assist Rick’s NY in the World Yacht analysis, but it is only one factor in that inquiry. See Spicer, 269 F.R.D. at 331 (stating, in reference to banquet service fees, that “even if a contract explicitly states that a service fee is not a gratuity, a reasonable customer might nonetheless believe otherwise depending on the totality of the circumstances.”). Here, there is no assurance that a customer read the “fine print.” And if the customer had done so, the totality of the circumstances surrounding the purchase of a private dance — particularly the fact that the Dance Dollar was handed directly to a dancer by the customer for a performance, in lieu of a cash payment for the same performance— would lead a reasonable customer to conclude that the Dance Dollar was a gratuity. For these reasons, the Court holds, the performance fees paid by customers to the Club’s dancers — whether paid in cash or by reimbursable Dance Dollars — would have been understood by a reasonable customer as a gratuity under the NYLL. Such a customer would have not viewed these fees as “being collected in lieu of a gratuity.” Spicer, 269 F.R.D. at 330 (citations omitted). Thus, even if a fee judged a service charge under the World Yacht inquiry could be treated post hoc as an offset to an employer’s minimum-wage obligation, the performance fees here could not be so treated. This conclusion is, finally, reinforced by two relatively recent pronouncements by the New York State Department of Labor (“NYSDOL”), offering guidance on how NYLL § 196-d, the source of the World Yacht standard, is to be applied. On March 11, 2010, the NYSDOL issued an opinion letter, setting out “illustrative” factors bearing on whether a reasonable patron would regard a particular fee as a gratuity or service charge. These included: (1) the font size and prominence of the notice; (2) the label used to denote the charge and whether such a label would confuse patrons (noting that the label “administrative fee” is clearer than “service, charge”); (3) whether the purpose of the charge and manner in which the charge is calculated are described on the bill; (4) whether the notice discloses the portion of the charge that is being distributed to the service staff and informs patrons to leave an additional payment as a tip; and (5) whether there exists a separate line for gratuity. See Pl.Ex. 301 (“March 2010 Opinion Letter”) at 3. These factors are to be assessed under the “totality of the circumstances.” Id. at 2; see also Spicer, 269 F.R.D. at 331. Although issued in the context of wait-staff working in banquets, the letter is not limited to that context. The March 2010 Opinion Letter applies retrospectively and prospectively. See Maldonado, 990 F.Supp.2d at 390. These factors undermine defendants’ claim that the performance fees that Club customers paid were' not “charges purported to be a gratuity.” To the extent customers paid in cash, they received no notice of any kind that these fees were intended as non-gratuities. To the extent customers paid with Dance Dollars, the sole notice they received was the notation on the vouchers. But the distracting context of a strip club makes it quite uncertain that customers saw or read these notations; and the notations were too imprecise to give customers adequate notice that the fees were non-gratuities. The Dance Dollar was not labeled as an administrative fee, the Club did not disclose how the fee would be allocated between the dancers and the Club, and customers were not invited to leave • an additional payment as a gratuity. Indeed, such a customer could add an additional gratuity when paying with a “Dance Dollar” only by paying in cash (which the customer had presumably already foregone in favor of buying a Dance Dollar by means of a credit card) or buying additional Dance Dollars for $24 apiece. On January 1, 2011, the NYSDOL issued new, prospective regulations that used more determinate terms to construe NYLL § 196-d. These created “a rebut-table presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any charge for ‘service’ or ‘food service,’ is a charge purported to be a gratuity.” N.Y. Comp. Codes R. Regs. tit. 12, § 146-2.18(b) (“the 2011 Regulations”). The 2011 Regulations further provided that: (a) A charge for the administration of a. banquet, special function, or package deal shall be clearly identified as such and customers shall be notified that the charge is not a gratuity or tip. (b) The employer has the burden of-demonstrating, by clear and convincing evidence, that the notification was sufficient to ensure that á reasonable customer would understand that such charge was not purported to be a gratuity. (c) Adequate notification shall include a statement in the contract or agr.ee- „ ment with the customer, and on any menu and bill listing prices, that the administrative charge is for administration of the banquet, special function, or package deal, is not purported to be a gratuity, and will not be distributed as gratuities to the employees who provided service to the guests. The statements shall use ordinary language readily understood and shall appear in a font size similar to surrounding text, but no smaller than a 12-point font. (d) A combination charge, part of which is for the administration of a banquet, special function or package deal and part of which is to be distributed as gratuities to the employees who provided service to the guests, must be broken down into specific percentages or portions, in writing to the customer, in accordance with the standards for adequate notification in subdivision (c). of this section. The portion of the combination charge which will not be distributed as gratuities to the employees who provided service to the guests shall be covered by subdivisions (a), (b) and (c) of this section. Id. § 146-2.19. Like the 2010 Opinion Letter, these regulations were addressed to a particular context, that of banquets or special functions. But, consistent with the case law, they reflect an overall understanding of NYLL § 196-d under which mandatory charges to customers in connection with service employees are presumptively “charge[s] purported to be a gratuity,” and under which it is the employer’s duty to rebut this presumption by giving clear notice to customers if the charges are not gratuities. Here, for the reasons set out above, a reasonable customer would have regarded the performance fees, by whichever means paid, as gratuities, and the Club did not give adequate notice to customers to combat this understanding. The 2011 regulations thus reinforce (as to the period from January 1, 2011 through the end of the class period) the Court’s holding that the $18 of each Dance Dollar were gratuities. For that independent reason, even if defendants were correct that they could use service charges retained by employees to offset their minimum-wage obligations under the NYLL, the performance fees here could not be used as such an offset. The Court, therefore, grants plaintiffs’ motion for summary judgment, and denies defendants’, on defendants’ theory that performance fees paid by customers to dancers offset defendants’ minimum-wage obligations under the NYLL. Peregrine— and any other defendant held at trial to be plaintiffs’ employer — is therefore liable on Claim Two to the full extent it is determined that plaintiffs were denied minimum wages. B. Plaintiffs’ Claim Four — for Retention of Gratuities under NYLL § 196-d The Court turns next to the parties’ cross-motions for summary judgment on Claim Four. Under NYLL § 196-d, “[n]o employer or his agent ... shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” In Claim Four, plaintiffs assert that the Club violated NYLL § 196-d by retaining $2 more than they were entitled from every Dance Dollar that a dancer redeemed. . Claim Four is based on the uncontested facts that: (1) when paying in cash, the customer paid the dancer $20; (2) when paying for the same services by credit card, a customer paid $24 for each Dance Dollar voucher; and (3) when redeeming these vouchers, the Club paid the dancer $18 (and kept $6 for itself), while not informing customers that it intended to keep $6 of the cost of the Dance Dollar for itself, rather than $4, which would have left the dancer with $20. Plaintiffs argue that $20 of each Dance Dollar was a gratuity that the customer intended for the dancer. Plaintiffs therefore assert that NYLL § 196-d was violated each time the Club redeemed a Dance Dollar and retained $2 of the $20 that was intended for the dancer. The Court agrees. Given that the Club required customers to pay dancers $20 in cash for a performance such as a personal dance, a reasonable customer could only conclude that, when the dance was paid for via a Dance Dollar, that $20 of each Dance Dollar would be retained by the dancer. The service performed by the dancer was the same; customers had no reason to infer that the net amount received by the dancer would differ based on the form of customer payment. And the Club’s representation to customers that the purchase of a Dance Dollar was subject to a 20% service charge would tend to confirm this. A reasonable customer would conclude that the $24 cost of each Dance Dollar would be divided with the customer retaining $20 and Rick’s NY retaining, an additional $4 (ie., 20%) service charge. Under-the World Yacht standard, a customer would regard a $20 payment for a personal dance — regardless of the form that payment took — as “purported to be a gratuity.” The Club thus violated § 196-d when it retained $6, not $4, from each redeemed Dance Dollar. Accordingly, the Court grants plaintiffs’ motion for summary judgment on Claim Four, and denies defendants’, cross motion. Peregrine — and any other defendant determined at trial to have been plaintiffs’ employer — is liable to plaintiffs for unlawfully retaining $2 in gratuities with respect to every Dance Dollar the Club redeemed. IV. Defendants’ Motion to Strike Dr. Crawford’s Expert Report and Testimony The Court turns next to defendants’ motion to strike the expert reports and the testimony of plaintiffs’ expert witness, Dr. David Crawford. A. Background Dr. Crawford is a labor economist who holds a Ph.D in Economics. See Prakash Deck Exs. 1 (“Crawford Report”), 8 (“Second Crawford Report”), 10 (“Corrected Crawford Report”). For purposes of this case, he created a model designed to calculate damages across the entire class of dancers employed at the Club during the relevant period. Id. This model incorporates data from defendants’ point-of-sale database, Clubtrax, which Dr. Crawford used to determine the hours each dancer worked and the amounts that these dancers paid in fines and fees. Id.; see also SF ¶ 257. Clubtrax contains data pertaining to all dancers in the class and is capable of running three reports: (1) a Log-in/Log-out report, which reflects the time that each dancer logged-in and logged-out of work; (2) a Dance Dollar report, which reflects the timing of each Dance Dollar redemption; and (3) a Charge Summary report, which reflects the amounts paid by dancers to the Club in fines and fees. See Prakash Deck Ex. 2; SF ¶¶ 260-67. In discovery, defendants produced all three reports for each class member for the entire class period. The Log-in/Log-out reports are based on data generated when the Club’s dancers log in to and out of work each day by scanning their index fingers against an electronic reader. This reader then feeds the resulting data directly into Clubtrax. SF ¶¶ 108-09, 265. Not every dancer, however, was diligent about logging .in and out of work. Because the Clubtrax data is therefore incomplete, “[i]n many situations, the recorded times” for log-ins and log-outs are “default times, not actual log-in or out times.” PI. Br. 3^1 (citing SF ¶ 266); see also Crawford Report ¶¶ 16-20. The second type of report — the Dance Dollar report — shows the date and time that each entertainer cashed in a Dance Dollar, SF ¶ 264, while the third type of report— the Charge Summary report — provides a record of each dancer’s balance of charges owed to the Club, id. ¶ 263. These Charge Summary reports showed all cash payments — specifically, the fines and fees discussed above — that each dancer made to the Club. Dr. Crawford’s model consists of 137,880 “records.” Each record reflects the Club-trax data (log-in/log-out, payments, and/or dance dollar redemptions) associated with one dancer for one “day,” except that one “day” in this context, given the Club’s hours, may include logging in one day in the evening and ending work the following morning. See Crawford Report ¶¶ 11-15. Because the data provided by Clubtrax is of varying quality, Dr. Crawford separated the data into three groups, or “tranches.” Each tranche is described below, in descending order of reliability. Tranche One: This is the model’s most reliable data — it contains the 81,567 records in which there was a valid log-in and log-out time. Id. ¶¶ 28-29. To determine which records belonged in this tranche, Dr. Crawford took the entire universe of data, and excluded records that had any of the following characteristics: • Records with “default” log-out times of 7:05 a.m., 7:06 a.m., 8:05 a.m., 9:05 a.m., and 10:05 a.m. The parties stipulated that 7:05 a.m. and 8:05 a.m. were default log-out times, but Dr. Crawford’s analysis showed that 7:06 a.m., 9:05 a.m., and 10:05 a.m. also occurred far more frequently than expected, and that these log-out times were clustered during certain times. Dr. Crawford therefore excluded all records with these five log-out times from tranche one. • Records where 10 or more of the records had “matching” log-outs in a single day. Dr. Crawford concluded that it was unlikely that 10 dancers would log-out at the exact same time on a particular day, and that, therefore, these times should also be treated as “default” log-out times. • Records where the reported log-out times were during periods when the club was closed (ie., 4 a.m. to 11 a.m.), except where a Dance Dollar redemption — either by the dancer in question or by another dancer — occurred after the recorded log-out time, thereby indicating that the Club was in fact open. • Records where the log-in and log-out times spanned the time when the Club was closed (ie., data that showed dancers logging-in before 4 a.m. and logging-out after 11 a.m.). After excluding records with the above characteristics, what remained were 81,567 records with log-in and log-out times that appeared reliable. From these records, Dr. Crawford calculated the number of hours worked by the dancers associated with those 81,567 records. He then multiplied that number by the applicable minimum wage in order to calculate damages on Claims One and Two (the minimum-wage claims) as to these records. Tranche Two: The second tranche consists of the 32,098 records where there was a valid log-in time — indicating that the dancer came to work — but no valid log-out time. Id. ¶¶ 30-34. For these records, Dr. Crawford treated each dancer’s last Dance Dollar cash-in time as that dancer’s log-out time. The theory behind this substitution is that these dancers were known to have come to work — they simply neglected to log out, or were assigned a “default” log-out time. A reasonable proxy for the dancer’s true log out time, however, is the time when she last redeemed a Dance Dollar, because it can be inferred that the dancer was still at work when she made that redemption. In reality, substituting the last Dance Dollar redemption often would tend to understate the number of hours worked by that dancer on that day, because the dancer may have continued to work for some time after redeeming her last Dance Dollar. However, for the purpose of calculating damages, Dr. Crawford treated the last Dance Dollar redemption time as a proxy for when the dancer had finished working. Tranche Three: The third tranche consists of the 24,215 records where there were both missing log-out times and no valid Dance Dollar redemption time. Id. ¶¶ 38-47. For these records, Dr. Crawford had to substitute “average log-out times.” For 12,770 of these records, Dr. Crawford substituted the specific dancer’s average log-out time for the particular day of the week of the particular month of the year where the data was missing. Id. ¶¶ 39^10. For the other 11,445 records, Dr. Crawford substituted the average log-out time for all dancers who worked on that particular day of the week of that particular month of the year. Id. ¶ 41. To validate this step, Dr. Crawford performed á variety of statistical tests aimed at assuring the reliability of these substitutions. B. Legal Standards Trial courts serve as “gatekeepers,” responsible for “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “Federal Rule of Evidence 702 grants an expert witness testimonial latitude unavailable to other witnesses, provided that (1) ‘the testimony, is based on sufficient facts or data,’ (2) ‘the testimony is the product of reliable principles and methods,’ and (3) ‘the expert has reliably applied the, principles and methods to the facts of the case.’ ” Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., No. 11 Civ. 6188(DLC), 2012 WL 6000885, at *6 (S.D.N.Y. Dec. 3, 2012) (quoting Fed. R.Evid. 702). “The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied.” United States v. Williams, 506 F.3d 151, 160 (2d Cir.2007). The Court’s task “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). A “trial judge should exclude expert testimony if it is speculative or conjectural or based on assumptions that are ‘so unrealistic and contradictory as to suggest bad faith.’ ” Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213-14 (2d Cir.2009) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996)). Additionally, “[a]n expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.” Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir.2006), aff'd on other grounds, 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008). Pursuant to Rule 403, the Court may also exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Important here, “[a] minor flaw in an expert’s reasoning or a slight'modification of an otherwise reliable method will not render an expert’s opinion per se inadmissible.” Amorgianos v. Nat’l RR Passenger Corp., 303 F.3d 256, 267 (2d Cir.2002). “The judge should only exclude the evidence if the flaw is large enough that the expert lacks good grounds for his or her conclusions.” Id. (citations omitted). “This limitation on when evidence should be excluded accords with the liberal admissibility standards of the federal rules and recognizes that our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony.” Id. C. Analysis Defendants have moved to strike Dr. Crawford’s expert report and his expert testimony from trial. They assert that Dr. Crawford’s methodology is unreliable because-he makes a number of “arbitrary assumptions” not justified by the evidence. Def. Br. 2. Defendants object, in particular, to five aspects of Dr. Crawford’s methodology: ,(1) his decision, while treating 10 matching log-outs as default log-outs that must be excluded from tranche one, not to similarly exclude nine or eight or seven matching log-outs; (2) his decision to credit certain log-outs that occurred when the Club’s schedule indicated that it was closed, specifically, log-outs that occurred on days when Dance Dollars were later redeemed (on the theory that these re-demptions indicated that the Club was still open); (3) treating 7:06 a.m., 9:05 a.m. and 10:05 a.m. as default log-out times that must be excluded; (4) treating 7:05 a.m., 8:05 a.m. and 9:05 a.m. as default log-in times that must be excluded; and (5) with respect to tranche three, replacing missing log-out times, generally, with Dance Dollar redemption times, or with averages calculated at the individual, or collective, level. Def. Br. 16-23. Dr. Crawford acknowledges that the data given to him — which of course was collected and maintained by the Club — is imperfect. But it is well-settled that, in wage-and-hour cases, employees are permitted to prove their hours worked as a matter of “just and reasonable inference” in the absence of employer-maintained time records. Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir.2011) (“Thus, at summary.judgment, if an employer’s records are inaccurate or inadequate, an employee need only present ‘sufficient evidence to show the amount and extent of [the uncompensated work] as a matter of just and reasonable inference.’ ”) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)) (emphasis added). It would be manifestly unfair to allow employers to avoid, or reduce, their liability simply because they kept shoddy records. See Mt. Clemens, 328 U.S. at 687, 66 S.Ct. 1187 (penalizing employee by “denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work” would “allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the [FLSA]”). It is against this backdrop that the Court must assess the admissibility of Dr. Crawford’s report and testimony under Rules 702 and 403. After careful review of Dr. Crawford’s expert reports, it is the Court’s judgment that his methodology is sufficiently sound to satisfy Mt. Clemens’ “just .and reasonable inference” standard, and that his testimony and expert report should, therefore, not be excluded under Rules 702 or 403. On balance, Dr. Crawford’s report is evenhanded, reasonable, and intellectually rigorous. It is aimed at a fundamentally mechanistic task — tabulating the hours worked. Had defendants’ time records been complete, the task, in fact, would have been wholly mechanistic. The gaps in the records, however, called upon Dr. Crawford to exercise judgment as to what reliable proxies would be for the missing data {e.g., log-out times). The issue for the Court is whether Dr. Crawford’s methodology to fill these lacunae is reliable. It is. Indeed, although defendants object to Dr. Crawford’s analysis, it is striking that most of the assumptions he makes in his damages model are conservative, and redound to defendants’ benefit. He broadly excluded categories of data based on his concerns about their potential unreliability. For instance, rather than accept all of the log-out time data as valid and calculate damages accordingly, Dr. Crawford observed that, in some instances, log-out times were clustered such that 10 or more dancers were shown to have logged out at the exact same time, or that multiple dancers were shown to have logged out at improbably'consistent times, such as 9:05 a.m. or 10:05 a.m. He concluded, fairly, that such clustering indicated, from a statistical standpoint, that those log-out times were most likely “default” times chosen by Clubtrax. He therefore opted to exclude such records from “tranche one” — his category reciting the most reliable data. Defendants criticize this statistical adjustment as “arbitrary.” But in the Court’s view, they reflect due care, and an attempt to tabulate damages as accurately as possible in the face of defendants’ imperfect data. See Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346, 376 (E.D.N.Y.2011) (“Clearly, however, defendant will suffer no prejudice as a result of Dr. Crawford’s conservative assumptions, and those assumptions are not a basis for excluding Dr. Crawford’s testimony.”). The choice to treat 10 or more common log-outs as indicative of use of a default time chosen by ClubTrax, as opposed to an authentic group departure, is a reasonable assumption, and defendants offer no basis on which to assume that a different cut-off (e.g., 8 or 9 contemporaneous log-outs) would be more reliable. See Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 301 F.R.D. 116, 129 (S.D.N.Y.2014) (“The Court has discretion ‘to determine whether the expert acted reasonably in making assumptions of fact upon which he would base his testimony.’ ”) (quoting Boucher, 73 F.3d at 21). Indeed, strikingly, defendants, for then-part, have not come forward with any alternative method for calculating damages. Defendants’ expert, Dr. Paul White, instead devotes his expert report to criticizing Dr. Crawford’s methodology and his client’s own Clubtrax data. However, he makes no effort to make his own calculation for class-wide damages. See Kimmel Aff. Ex. 1 (“Review of Plaintiffs’ Economic Expert Report by Peter White”). The fact that defendants have failed to offer an alternative, let alone a superior, methodology is a relevant consideration under Mt. Clemens. See 328 U.S. at 687-88, 66 S.Ct. 1187 (finding that defendant whose record-keeping is deficient bears the burden of “com[ing] forward with evidence” to contradict any estimate based upon just and reasonable inferences offered by plaintiff; if defendant fails to do so, “the court may then award damages to the [plaintiff], even though the result be only approximate”). Here, defendants have failed to provide any good reason to discredit Dr. Crawford’s estimate of damages as other than “just and reasonable.” On the contrary, the absence of any alternative methodology is a telling indication that defendants, in attacking Dr. Crawford’s report, can do no more than spot imperfections that would exist in any damages methodology given the imperfect Clubtrax data. Importantly, contrary to defendants’ apparent premise, Dr. Crawford’s analysis need not be perfect to be received in evidence — it need only rest on a reliable foundation that is relevant to the task at hand. See Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir.2005) (“As the Supreme Court explained in Daubert, Rule 702 requires the district court to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”) (citation and internal quotation marks omitted). Plaintiffs easily meet that standard. They have shown, by a preponderance of the evidence, that Dr. Crawford has based his expert report on sufficiently reliable facts and data, and that he has applied reliable principles and methods to that data. Moreover, the probative value of Dr. Crawford’s testimony at trial would be quite high. Based on the current record, that testimony would be the only available evidence from which a reasonable factfinder could calculate damages. The Court has further considered whether this probative value would be substantially outweighed by the risk of unfair prejudice or confusion of the issues. It would not. Indeed, the Court views the risk of unfair prejudice as virtually zero and the risk of jury confusion as slight given the easily understood nature of the data, which is focused on quotidian matters such as the time a worker ceased work for the day. Accordingly, defendants’ motion to strike Dr. Crawford’s expert report and his testimony under Rules 702 and 403 is denied. V. Defendants’ Motion to Decertify