Lawyer Fires Back at Joe Bastianich Over ‘Frivolous Lawsuits’ Comment

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He doesn't look so concerned. Photo: Melissa Hom

Perhaps you caught the story in the Post over the weekend about restaurant lawsuits and the way pretty much all the ones you've heard about anytime recently have been prosecuted by one lawyer, the so-called "scourge of restaurateurs" Maimon Kirschenbaum. In the past few years, Kirschenbaum has pursued more than 100 wage-violation cases against New York restaurants, including Alto, Convivio, and Babbo, the latter of which prompted co-owner Joe Bastianich to say this to the Post: "Money-hungry lawyers, through frivolous lawsuits, are shaking down the very foundation of Manhattans restaurant industry." Well, now Kirschenbaum has words for Bastianich, in the form of an open letter to the "disgruntled restaurant owners that have been 'victimized'" by his suits.

In the letter, passed along to Grub Street, Kirschenbaum writes, "There was one glaring omission from your quotes in the NY Posts 'expose' on me this past Sunday: The part where you claim that you did not violate the law by taking money from the waiters tips to subsidize other expenses in your restaurant." He continues: "There can be little doubt that the wait staff plays an integral role in making NYC what Mr. Bastianich called 'the greatest restaurant city in the world.' That being the case, SHAME ON YOU FOR ABUSING THESE UNDERPRIVILEGED EMPLOYEES."

And of course, that's not all. Here's the full text:

Dear Disgruntled Restaurant Owners That Have Been Victimized By Me and My Fellow Law Firms:

There was one glaring omission from your quotes in the NY Posts expose on me this past Sunday: The part where you claim that you did not violate the law by taking money from the waiters tips to subsidize other expenses in your restaurant. Given that you decided to resolve this matter in a tabloid, instead of in a courtroom where reality governs, your decision to focus on all matters other than the real issues at hand is no surprise. It was much easier for you to simply attack me as a money-grubber and have Joe Bastianich whine to the general public that he will not be opening another multi-million dollar operation in NYC this year. Actually, thats probably the best you can do given what you have done to bring yourselves to this point.

The waiters and foodservice employees that I represent are some of the hardest working honorable people in NYC. There is hardly a soul in this beautiful city that is not routinely served by a NYC foodservice worker. While we all have our good and bad experiences at restaurants, there can be little doubt that the wait staff plays an integral role in making NYC what Mr. Bastianich called the greatest restaurant city in the world. That being the case, SHAME ON YOU FOR ABUSING THESE UNDERPRIVILEGED EMPLOYEES.

I have been practicing law for roughly six years. I can say with pride that in my wildest dreams as a law student, I would never have foreseen that G-d would give me the good fortune of being able to practice in an area as honorable as protecting the rights of underprivileged waiters. Over this period of time, I have represented: (a) waiters that were forced to hand $20 bills to their floor managers each night out of fear of being assigned the following night to a section of the restaurant where low tipping tourists were seated; (b) wait staff that worked significant overtime hours each week, but had their time cards systematically altered so that they would not be paid for overtime; (c) wait staff that are forced to pay back (!) their employers back for walk-outs, i.e., customers that walk-out without paying their bill; (d) wait staff that were paid no hourly wage at all; (e) wait staff that were required to subsidize the pay of dishwashers, silver polishers and other non-wait staff, because the restaurants were too cheap to pay these individuals directly, and (f) wait staff at banquet events for which the banquet halls charge 20% gratuities, but distribute none or a fraction of the gratuities to the wait staff. More or less, almost all of the lawsuits I have brought over the years revolve around one or several of these violations.

Please do not try and convince the public that the above-mentioned violations are a necessary component of your business or that we are exploiting some loophole in the law. And when you get called out for your bad behavior by me or one of the other wonderful law firms that work in my field, yes, you will have to pay back the wait staff back what you took from them. It takes a strong degree of chutzpah to suggest that honorable folks in Albany will change the laws to make it easier for you to get away with your bad behavior. In fact, those in the know, including the lawyers that defend my lawsuits, are well-aware of the fact that the legislature and the courts have been increasing the protections of these workers as result of the rampant violations and exploitations in NYC.

As of today, I am unaware of a single restaurant that went out of business because of one of my lawsuits. But, if a restaurant simply cannot make a profit without stealing money from its wait staff, I think we all agree that that restaurant should not be in business, and I will not regret putting that restaurant out of business.

With regard to the money-grubbing by lawyers and waiters: The attorneys fees on these cases must be approved by the Court. Also, contrary to what the NY Post would have you believe, there is no one person taking home one third of the moneys paid out by Defendants. These cases require significant expenditures and manpower, often more than one or two law-firms and many lawyers, to litigate them from beginning to end. Defendants are well aware of thisthey too tend to staff these cases with many lawyers. Plus, we actually have to pay our employees in full. With regard to waiters, Joe Bastianich claims that waiters earn significant sums of money each year ($70-100,000). My experience has been that most waiters, even at the super high-end restaurants and banquet halls, make a lot less than that. More importantly, at least they can say that every penny of that money is rightfully theirs. If Mr. Bastianich cares to share with the general public his annual income, the public can run a comparison and decide for themselves who is getting the short end of the broomstick.

In closing, this world would be a better place if there was no legitimate need for the lawsuits brought by me and my buddies. The choice is yours. Keep the employment laws, and you will have satisfied wait staff and no legal expenses associated with defending these lawsuits. Until then, it will take a lot more to get rid of us than besmirching us in a tabloid.

Maimon Kirschenbaum

Money-grub 'tip' suits driving eateries out of business [NYP]
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