Williams v. Wintzell's Oyster House

Filing 90

ORDER granting in part and denying in part 30 Motion to Certify Class; granting in part and denying in part 78 Motion for Curative Provision in the Notice; denying 85 Motion to Strike. The parties are ordered to submit a proposed form of notice for approval by 2/11/2016. Signed by Chief Judge William H. Steele on 1/21/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RAVEN WILLIAMS, et al.,

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Plaintiffs,
v.
ROBERT W. OMAINSKY, et al.,
Defendants.

CIVIL ACTION 15-0123-WS-N

ORDER
This matter comes before the Court on plaintiffs’ Motion for Conditional Certification
and Court-Facilitated Notice (doc. 30), plaintiffs’ Motion for Curative Provision in the Notice
(doc. 78), and defendants’ Motion to Strike (doc. 85). All Motions are ripe for disposition.1
I.

Procedural Posture.
A.

Nature of Plaintiffs’ Claims.

The named plaintiffs are current or former servers employed by defendants, Robert W.
Omainsky and Fried Stewed Nude, Inc., at Wintzell’s Oyster House restaurant locations in
Downtown Mobile, Alabama, and Saraland, Alabama.2 The gravamen of the Complaint is that
1

The Motion to Strike may be resolved expeditiously. Plaintiffs filed their Motion
for Curative Provision on November 24, 2015. By operation of Civil L.R. 7(c) & (d) and Rule
6(d), Fed.R.Civ.P., defendants’ response was due on or before December 11, 2015, and
plaintiffs’ reply was to be filed on or before December 21, 2015. Plaintiffs did not file their
Reply (doc. 84) until December 28, 2015, four business days late. On that basis, defendants
move to strike the Reply. To be sure, the Reply was untimely and plaintiffs should have
submitted an accompanying motion to accept out-of-time filing to explain their dilatoriness and
obtain judicial permission for the tardy submission. But the sanction of striking the Reply is
excessive here, given that plaintiffs’ delay – while initially unexplained and improper – neither
prejudiced defendants nor (in light of intervening holiday closings) appreciably hampered the
Court’s ability to adjudicate the underlying Motion for Curative Provision in a prompt and
efficient manner. Accordingly, the Motion to Strike Plaintiffs’ Reply (doc. 85) is denied.
2

Plaintiffs’ Amended Complaint (doc. 4) included an additional defendant
(Wintzell’s, Inc.) and appeared to expand the scope of their claims to all 11 Wintzell’s Oyster
(Continued)

defendants operated an invalid tip pool and improperly claimed the tip credit for time that
plaintiffs spent performing non tip-producing work, all in violation of the Fair Labor Standards
Act, 29 U.S.C. §§ 201 et seq. (“FLSA”).
In their Motion for Conditional Certification, plaintiffs elaborate on their FLSA claim as
follows: Although the FLSA generally establishes a minimum hourly wage of $7.25, employers
may claim a “tip credit” by paying tipped employees a cash wage up to $5.12 per hour below
that minimum wage, as long as certain conditions are satisfied. One such requirement is that “all
tips received by such employee have been retained by the employee, except that this subsection
shall not be construed to prohibit the pooling of tips among employees who customarily and
regularly receive tips.” 29 U.S.C. § 203(m). In a nutshell, plaintiffs’ FLSA cause of action is
that defendants “have consistently required servers to share tips with non-tipped employees,”
namely dishwashers, rendering the tip pool invalid, such that defendants could not properly
claim a tip credit for servers and “Defendants are thus liable for the difference between the
reduced cash wage it paid them and the minimum wage required by … law.” (Doc. 30, at 22,
25.) For their part, defendants deny that their tip pool arrangement was improper. In particular,
defendants’ position is that the tip pool was valid because servers were required to share tips
with bussers, rather than dishwashers. (Doc. 59, at 7-8, 15-18.)3

House restaurants, including locations in Fairhope, Greenville, Guntersville, Huntsville,
Montgomery, Orange Beach, Spanish Fort, West Mobile, and Pittsburgh, Pennsylvania. All
claims against Wintzell’s, Inc. were dismissed on settlement (see doc. 79) via Order entered on
November 24, 2015. Plaintiffs now confine their request for conditional certification to just
three Wintzell’s Oyster House locations (Downtown Mobile, Saraland, West Mobile), as those
are the only three locations owned by the remaining defendants (Fried Stewed Nude and
Omainsky).
3

At the risk of oversimplification, the Court observes that a reasonable reading of
the parties’ briefs on the conditional certification issue suggests that the heart of their dispute
over FLSA liability lies in the factbound, objective question of whether dishwashers were or
were not included in the tip pool. After all, defendants concede that “[t]hose employees whose
primary duties are dishwashers … are not permitted to participate in a required tip pool” under
the FLSA. (Doc. 59, at 18.) But plaintiffs insist that “[t]he customarily ‘non-tipped’ employees
with whom Defendants’ servers were required to share tips included employees functioning as
dishwashers in Defendants’ restaurants.” (Doc. 30, at 22; see also doc. 65, at 9 (“Plaintiffs have
made a substantial showing that the tip pool at Defendants’ restaurants impermissibly included
non-tipped employees …. Specifically, Plaintiffs have submitted evidence that the tip pool
(Continued)
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B.

The Employment Arbitration Agreements.

Of central importance to the pending Motions are Employment Arbitration Agreements
executed in March 2015 by some 75 servers (all of whom are prospective opt-in plaintiffs)
employed by defendant Fried Stewed Nude, Inc. at Wintzell’s Oyster House restaurants in
Downtown Mobile, Saraland and West Mobile. (R. Omainsky Decl. (doc. 59, Exh. A), ¶¶ 41,
57.) In relevant part, those Agreements specified as follows:
“As a condition of your employment at [Fried Stewed Nude, Inc.], you agree that
any controversy or claim arising out of or relating to your employment
relationship with FSN or the termination of that relationship, must be submitted
for non-binding mediation before a third-party neutral and (if necessary) for final
and binding resolution by a private and impartial arbitrator, to be jointly selected
by you and FSN.”
(R. Omainsky Decl., Exh. A-3, at 1.)
Such Agreements were not executed by all Fried Stewed Nude servers at those locations;
to the contrary, “at least eight servers refused to sign the Employment Arbitration Agreement
and were not terminated.” (Id., ¶ 46.) Likewise, servers who had previously worked for Fried
Stewed Nude but who had resigned or been terminated prior to March 2015 never signed such an
Agreement either. Thus, a substantial number of prospective opt-in plaintiffs never signed
arbitration agreements here.
However, seven would-be opt-in plaintiffs (Courtney Booth, Dante’ Henry, Morgan
Wade, Allison Odom, Christina Guess, Stormy Lord and Rebecca Glynn Smith) signed the FSN
Employment Arbitration Agreement. After these individuals filed consent forms to join this
action, defendants filed Motions to Dismiss and Compel Mediation/ Arbitration (docs. 60 & 74),
seeking to enforce the ADR provisions of those Agreements as to each of these seven opt-in
plaintiffs. In opposing FSN’s efforts to enforce those mediation/arbitration requirements,
plaintiffs railed against the Agreements as being both substantively and procedurally

included individuals who worked as dishwashers. … Defendants do not directly address the
tipping of ‘dishwashers.’”).) Given the apparent centrality of this narrow fact issue to their
respective litigation stances, the parties would be well-advised to scrutinize closely and candidly
the evidence as to whether dishwashers were or were not included in the Fried Stewed Nude tip
pool. Engaging in such a clear-eyed, searching analysis at an early stage may facilitate a frank,
realistic evaluation of each party’s respective prospects, likelihood of success, and best litigation
options and strategies going forward.

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unconscionable.4 The Court entered an Order (doc. 82) on December 3, 2015, finding that the
terms of both the Agreements and the AAA Rules incorporated therein required threshold
determinations as to validity, scope and enforceability of the Agreements to be made by an
arbitrator, not a federal court.5 On that basis, the December 3 Order compelled mediation and (if
necessary) arbitration of all claims brought by the seven affected opt-in plaintiffs. That process
is now underway. Although defendants requested that the seven affected opt-in plaintiffs’ claims
be dismissed, the Court declined to do so, but instead stayed those claims, based on (i) the text of
the Federal Arbitration Act, (ii) the abundance of case authorities that stay (rather than dismiss)
claims in analogous circumstances, (iii) the pendency of multiple threshold challenges that might
prevent the arbitrator from ultimately deciding (or even reaching) the merits of the FLSA claim,
and (iv) the potential repercussions of such a time lapse for the relevant limitations period
governing the opt-in plaintiffs’ claims. (Doc. 82, at 11.)
The net result of the December 3 Order, then, is that the claims of opt-in plaintiffs
Courtney Booth, Morgan Wade, Allison Odom, Dante’ Henry, Christina Guess, Stormy Lord
and Rebecca Glynn Smith were stayed pending the results of mediation and (if appropriate)
arbitration. The arbitrator(s) will be tasked with making certain threshold determinations as to
the arbitrability disputes (i.e., the validity, scope and enforceability of the Employment
Arbitration Agreements). Depending on the outcome of those proceedings, it is entirely possible
that one or more opt-in plaintiffs may rejoin this litigation (that is, have the stay of his or her
4

Specifically, plaintiffs objected that the Agreements were (i) violative of the
FLSA because they included a waiver provision under which the employee’s claims were waived
if not pursued within one year, whereas the FLSA has a two-year (or, as to willful violations,
three-year) limitations period; (ii) irreconcilable with the FLSA’s remedial purposes because
they required the employee to bear his or her own attorney’s fees, as compared to the FLSA’s
fee-shifting provision for successful plaintiffs; and (iii) procedurally unconscionable because
Fried Stewed Nude procured employee signatures through misleading statements, material
omissions, and coercive strong-arm tactics.
5

As a key passage of the December 3 Order explained, “Simply put, the Opt-Ins
and Fried Stewed Nude clearly and unmistakably agreed to submit to the arbitrator any disputes
concerning arbitrability (including those bearing on the existence, scope and validity of the
Agreements). … Accordingly, the Court does not reach the merits of plaintiffs’
unconscionability objections. Instead, the Court will enforce the parties’ clear and unmistakable
agreement that the arbitrator shall resolve arbitrability objections and decide the existence, scope
or validity of the arbitration agreement.” (Doc. 82, at 9-10 (footnote omitted).)

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claims lifted) based on an arbitrator’s determination that the Employment Arbitration Agreement
is not binding on him or her, or that it is not enforceable as to the instant dispute.6
C.

Nature of Relief Sought by Plaintiffs’ Motions.

The named plaintiffs (Raven Williams. D’Andre Wilkerson, Tiffany Newburn, Danielle
Powe and Jennifer Hampton) have come forward with a pair of motions through which they seek
conditional certification of this case as an FLSA collective action, court-facilitated notice to
potential plaintiffs, and curative measures to correct for what plaintiffs characterize as “the harm
of Defendants’ conduct” with respect to the roll-out, implementation and execution of the
Employment Arbitration Agreements. (Doc. 78, at 1.) As to conditional certification, plaintiffs
propose the following class definition:
“[A]ll current and former employees, including servers, of the Wintzell’s Oyster
House restaurants located in Downtown Mobile, Saraland, and West Mobile who
were paid a cash wage less than minimum wage (excluding any credit for tips
retained), or for whom Defendants claimed a ‘tip credit’ while requiring
employees to contribute a portion of their tips to bussers, dishwashers, and/or
other non-tipped employees from March 6, 2012 through March 6, 2015.”
(Doc. 65, at 2.) With regard to notice, plaintiffs “request that the Court include a curative
instruction approved for use in alerting potential class members of their right to opt-in …. This
curative instruction is necessary to counteract the retaliation and misleading information
Defendants have and are communicating to their employees.” (Doc. 78, at 18.) Plaintiffs
propose not only that notice be mailed to putative opt-in plaintiffs, but also that defendants be
ordered to “post the notice letter in its entirety in the common areas or at the time clocks of each
of [their] facilities.” (Id.)
The appropriate analytical starting point is whether conditional certification of this action
is appropriate at this time. If so, the Court will move on to address whether court-facilitated
notice is warranted and, if so, what the form, contents and methodology of such notice should be.
6

To be clear, the Court is in no way handicapping, predicting or forecasting any
particular outcome to plaintiffs’ forthcoming arbitration challenges to the Agreements on
theories of procedural and substantive unconscionability. Rather, the Court is merely
recognizing the near-certainty that such challenges will be raised and the possibility that an
arbitrator may find them to have merit, thereby restoring one or more of these individuals to
active plaintiff status in this case, notwithstanding his or her execution of the Fried Stewed Nude
Employment Arbitration Agreement in March 2015.

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II.

Analysis.
A.

Conditional Certification under the FLSA.
1.

Legal Framework.

Pursuant to Section 216(b) of the FLSA, an action to recover unpaid minimum wages
“may be maintained against any employer … by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis
added). In contrast to the traditional Rule 23 framework in which similarly situated persons’
interests may be litigated without their formal consent, the FLSA features an opt-in mechanism
for similarly situated employees. See id. (“No employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such a party and such consent is filed in
the court in which such action is brought.”) (emphasis added); Anderson v. Cagle’s, Inc., 488
F.3d 945, 950 n.3 (11th Cir. 2007) (“Unlike class actions governed by Rule 23 …, FLSA
collective actions require potential class members to notify the court of their desire to opt in to
the action.”). Plaintiffs have consistently labeled this case as an FLSA collective action from its
inception (see doc. 4), and now seek conditional certification under § 216(b). “The sole
consequence of conditional certification is the sending of court-approved written notice to
employees, … who in turn become parties to a collective action only by filing written consent
with the court, § 216(b).” Genesis Healthcare Corp. v. Symczyk, --- U.S. ----, 133 S.Ct. 1523,
1530, 185 L.Ed.2d 636 (2013); see also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218
(11th Cir. 2001) (“If the district court ‘conditionally certifies’ the class, putative class members
are given notice and the opportunity to ‘opt-in.’”).
The Eleventh Circuit has emphasized that “[t]he key to starting the motors of a collective
action is a showing that there is a similarly situated group of employees.” Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008); see also Anderson, 488 F.3d at 952
(“To maintain a collective action under the FLSA, plaintiffs must demonstrate that they are
similarly situated.”) (citations and internal quotation marks omitted). Thus, before authorizing
notice to prospective plaintiffs, a “district court should satisfy itself that there are other
employees … who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job
requirements and with regard to their pay provisions.” Dybach v. State of Florida Dep’t of
Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991). In making these determinations at the
conditional certification stage, the district court is to use “a fairly lenient standard, [which]

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typically results in ‘conditional certification’ of a representative class.” Hipp, 252 F.3d at 1218
(citation omitted); see also Anderson, 488 F.3d at 953 (“at the initial stage, courts apply a ‘fairly
lenient standard’ for determining whether the plaintiffs are truly similarly situated”) (citations
omitted); Kerce v. West Telemarketing Corp., 575 F. Supp.2d 1354, 1358 (S.D. Ga. 2008)
(“Typically, courts presented with motions to conditionally certify a class under § 216(b) grant
those motions and allow the case to proceed to discovery.”).7 Granting conditional certification
is very much the norm, and denying it is very much the exception.
“[U]ltimately, whether a collective action is appropriate depends largely on the factual
question of whether the plaintiff employees are similarly situated to one another.” Morgan, 551
F.3d at 1262. The wrinkle is that neither Congress nor the Eleventh Circuit has precisely defined
“similarly situated” in the context of a motion for conditional certification. See id. at 1259 (“The
FLSA itself does not define how similar the employees must be before the case may proceed as a
collective action. And we have not adopted a precise definition of the term.”). Nonetheless,
lower courts performing the “similarly situated” inquiry at the conditional-certification stage of
an FLSA action have considered the following factors, among others, to evaluate whether
plaintiffs have met their burden: “(1) whether plaintiffs held the same job title; (2) whether they
worked in the same geographic location; (3) whether the alleged violations occurred during the
same time period; (4) whether plaintiffs were subjected to the same policies and practices, …
established in the same manner and by the same decision maker; and (5) the degree to which the
actions constituting the claimed violations are similar.” Pena v. Handy Wash, Inc., 28 F.
Supp.3d 1289, 1296 (S.D. Fla. 2014) (citation omitted).

7

Of course, the conditional certification stage is not the only juncture in a FLSA
collective action when a “similarly situated” determination may be made. If a class is
conditionally certified, then the district court may be called upon to revisit the “similarly
situated” issue after discovery is complete and the matter is ready for trial, if defendants move
for decertification. “At this stage, the court has much more information on which to base its
decision, and makes a factual determination on the similarly situated question.” Hipp, 252 F.3d
at 1218 (citation omitted); see also Morgan, 551 F.3d at 1261 (at second stage, “the district court
has a much thicker record than it had at the notice stage, and can therefore make a more
informed factual determination of similarity”). “The ‘similarly situated’ standard at the second
stage is less ‘lenient’ than at the first, as is the plaintiffs’ burden in meeting the standard.”
Anderson, 488 F.3d at 953.

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At this stage, “[a] plaintiff has the burden of showing a ‘reasonable basis’ for his claim
that there are other similarly situated employees.” Morgan, 551 F.3d at 1260. The Eleventh
Circuit characterizes the legal standard for determining similarity at the conditional-certification
stage as being “not particularly stringent, … fairly lenient, … flexible, … not heavy, … and less
stringent than that for joinder under Rule 20(a) or for separate trials under 42(b).” Id. at 1261
(citations and internal marks omitted); see also Beecher v. Steak N Shake Operations, Inc., 904
F. Supp.2d 1289, 1297 (N.D. Ga. 2012) (although “[p]laintiffs bear the burden of establishing
that they are similarly situated with the group of employees they wish to represent,” that burden
“is not heavy” at the conditional-certification stage) (citations omitted); Longcrier v. HL-A Co.,
595 F. Supp.2d 1218, 1242 (S.D. Ala. 2008) (“The law erects only a low hurdle for FLSA
plaintiffs seeking to obtain conditional class certification and court-facilitated notice to potential
class members.”).8
2.

Plaintiffs’ “Similarly Situated” Showing.

As noted, plaintiffs’ burden at the conditional-certification stage is to demonstrate a
“reasonable basis for [their] claim that there are other similarly situated employees.” Morgan,
551 F.3d at 1260 (citations and internal quotation marks omitted). Here, plaintiffs show that the
three Wintzell’s Oyster House restaurant locations (Downtown Mobile, Saraland, and West
Mobile) where conditional certification is sought have all been owned by the same entity, Fried
Stewed Nude, Inc., since November 5, 2012. (R. Omainsky Decl. (doc. 59, Exh. A), ¶ 4.)
8

The parties devote a non-trivial portion of their briefs to debating whether Fried
Stewed Nude’s tip pool operated in a manner that did or did not violate the FLSA. Such
discussions are largely unilluminating, because conditional-certification determinations must be
made without regard to (and independently of) the merits of the case. See, e.g., Longcrier, 595
F. Supp.2d at 1241 (“The Court understands and appreciates HL-A’s position that it has fully
complied with its FLSA overtime obligations …. But now is not the time to evaluate the
ultimate merits of the causes of action joined in the Amended Complaint, as those findings
would have little bearing on the propriety of a threshold conditional class certification.”); Pena,
28 F. Supp.3d at 1300 (“a court should not weigh the merits of the underlying claims in
determining whether potential opt-in plaintiffs may be similarly situated”); Kerce, 575 F.
Supp.2d at 1358 (“In considering a motion to conditionally certify the class in a wage and hour
dispute, the Court does not reach the merits of the case.”). Accordingly, insofar as either side
would present arguments concerning the strength or weakness of the “invalid tip pool” theory
underlying plaintiffs’ FLSA cause of action, the Court declines to consider those matters in
deciding the Motion for Conditional Certification and Court-Facilitated Notice.

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Plaintiffs also show that servers at all three locations have received $2.25 per hour plus tips, have
been notified that Fried Stewed Nude will take a tip credit to ensure they receive minimum wage
for all hours worked, and have been required to contribute to a tip pool devised and administered
in an identical manner at each location. (Id., ¶¶ 28-32; Dyer Decl. (doc. 30, Exh. 1), ¶ 3; Curry
Decl. (doc. 30, Exh. 4), ¶ 3.) Plaintiffs’ litigation position, of course, is that Fried Stewed Nude
operated this “tip pool” arrangement in an invalid manner by requiring servers at each location to
share tips with non-tipped employees.
The “similarly situated” status of servers at the Downtown Mobile, Saraland and West
Mobile restaurant locations during the relevant time period is reinforced by evidence that
defendants conducted identical, mandatory meetings at each of the three locations in March
2015, to roll out the Fried Stewed Nude Employment Arbitration Agreement. (R. Omainsky
Decl., ¶¶ 41-42.) During each meeting, management read from the same “script” delineating
Fried Stewed Nude’s policies, mission statements, and programs, all of which were uniform for
all three locations. (Id., ¶ 42.) Again, this evidence suggests that Fried Stewed Nude treated
servers at all three locations the same (or, at least, in a substantially similar manner) with regard
to the compensation practices at the heart of this litigation.
Based on plaintiffs’ showing that Fried Stewed Nude utilized uniform tip pool policies
and practices at the three locations during the relevant time period, and that such policies and
practices applied to all servers at those locations, the Court readily concludes that plaintiffs have
met their fairly lenient burden. Specifically, plaintiffs have made a reasonable showing that all
servers who worked at the three subject Wintzell’s Oyster House restaurant locations between
November 5, 2012 (the date that Fried Stewed Nude purchased the restaurants) and March 6,
2015 (the date that plaintiffs filed their Complaint) are similarly situated. Moreover, plaintiffs
have filed numerous “Consent to Join Forms” signed by would-be opt-in plaintiffs, including
most recently Thomas Card, a server at the Downtown Mobile location whose form was dated
January 4, 2016. (See doc. 86.) These opt-in plaintiffs are complaining about the same pay
policy, practice, or scheme (i.e., mandatory contributions to a tip pool for the benefit of nontipped employees) by Fried Stewed Nude, resulting in the same purported FLSA violations (i.e.,
disqualification of Fried Stewed Nude’s eligibility for the tip credit, meaning that plaintiffs
received sub-minimum-wage cash wages, all in violation of the FLSA) during the same time
period. On this factual showing, the Court concludes that plaintiffs have met their modest

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burden of establishing the existence of a similarly situated group of employees by showing that
the prospective class members are all victims of a singular policy.9
3.

Defendants’ Objections.

Notwithstanding the foregoing, defendants balk that the “similarly situated” prerequisite
for FLSA conditional certification is not satisfied here. In particular, defendants assert the
following arguments: (i) plaintiffs have not shown that any employee of the West Mobile
location desires opt-in status in this case; (ii) the arbitration agreements signed by many (but not
all) Fried Stewed Nude servers negate “similarly situated” status; and (iii) there are no “similarly
situated” employees for the time period from March 5, 2012 through November 5, 2012. Each
contention will be addressed in turn.
a.

West Mobile Location Employees and Desired Opt-In Status.

First, defendants posit that plaintiffs have not met their burden of showing “similarly
situated” employees because all opt-in plaintiffs identified to date are or were employed at the
Downtown Mobile or Saraland locations, not the West Mobile location. On that basis,
defendants insist that “the Court should not authorize notice as to any unrepresented location.”
(Doc. 59, at 19.) It is true enough that, in this Circuit, part of the “similarly situated” inquiry is
whether “there are other employees of the [employer] who desire to ‘opt-in.’” Cameron-Grant v.
Maxim Healthcare Services, Inc., 347 F.3d 1240, 1244 (11th Cir. 2003) (citation omitted).
However, defendants identify no reasoned authorities adopting an irreducible requirement that
plaintiffs must establish on a facility-by-facility basis the existence of other employees desiring
to opt-in. More to the point, imposing such a stringent, hard-and-fast mandate would appear
incompatible with the lenient, flexible FLSA standard for conditional certification. It would
conflict with numerous persuasive authorities not requiring evidence of similarly situated
plaintiffs at each and every location in the proposed class.10 And it would create unreasonable
9

See generally Longcrier, 595 F. Supp.2d at 1241 (“The critical inquiry for
defining the scope of the class is whether all included prospective class members are similarly
situated, meaning that they are all collectively victims of a single policy or plan.”); PAL v.
Sandal Wood Bar N Grill, 2015 WL 237226, *1 (S.D.N.Y. Jan. 15, 2015) (“The plaintiff’s
burden at this preliminary stage is low, requiring only a ‘modest factual showing’ that they were
victims of a common policy violating the law.”).
10

See, e.g., Johnson v. VCG Holding Corp., 802 F. Supp.2d 227, 236 (D. Me. 2011)
(“While the named plaintiffs need not demonstrate the existence of similarly situated persons at
(Continued)
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practical obstacles to FLSA conditional certification via a “chicken and egg” problem forcing
plaintiffs “to produce the very information that they sought to obtain through conditional
certification and notice. … [A]n overly rigid and inflexible analysis risks the creation of a Catch22 wherein Plaintiffs need to identify and notify members of the putative class before seeking a
court order to allow for identification and notification.” Johnson v. VCG Holding Corp., 802 F.
Supp.2d 227, 238 (D. Me. 2011) (citations omitted).11
In applying the “similarly situated” test to a putative class that would include multiple
facilities, courts typically focus on whether plaintiffs have shown common ownership and
uniform policies or practices across those establishments.12 Plaintiffs here have done so, via

every location in the proposed class, they must demonstrate that there existed at least one
similarly situated person at a facility other than their own.”) (emphasis added, citations and
internal marks omitted); Adams v. Inter-Con Sec. Systems, Inc., 242 F.R.D. 530, 537 (N.D. Cal.
2007) (same); Albanil v. Coast 2 Coast, Inc., 2008 WL 4937565, *6 (S.D. Tex. Nov. 17, 2008)
(plaintiffs satisfy light burden by providing “at least a minimal basis for their assertions that
other chippers would wish to join the lawsuit if they knew of it”); Allen v. McWane, Inc., 2006
WL 3246531, *3 (E.D. Tex. Nov. 7, 2006) (“Although the affidavits and declarations do not
encompass all of the Defendant’s facilities, the Court finds that the Plaintiffs have come forward
with competent evidence that similarly situated potential plaintiffs exist. The evidence is
sufficient to meet the lenient standard for giving notice to potential class members.”).
11

See also Rossello v. Avon Products, Inc., 2015 WL 3890403, *13 (D.P.R. June 24,
2015) (“Often, as here, a plaintiff moving for conditional certification hopes to obtain from the
defendant the identities and contact information of every member of the proposed class; with this
information in hand, the plaintiff can disseminate court-approved notice, the purpose of which is
to determine whether any class members want to join the suit.”); Detho v. Bilal, 2008 WL
2962821, *3 (S.D. Tex. July 29, 2008) (opining that “[t]here is a potential for a ‘chicken and
egg’ problem in applying this factor, which this court recognized and took steps to avoid,” and
stressing importance of flexibility in assessing whether others are interested in joining the suit).
12

See, e.g., Yap v. Mooncake Foods, Inc., --- F. Supp.3d ----, 2015 WL 7308660, *6
(S.D.N.Y. Nov. 18, 2015) (“With respect to certification across multiple retail locations, courts
consider whether the plaintiffs have made an adequate factual showing to support an inference
that … a uniform policy or practice exists, and whether the locations share common ownership
or management.”) (citation and internal quotation marks omitted); Castillo v. Morales, Inc., 302
F.R.D. 480, 486 (S.D. Ohio 2014) (plaintiff met conditional certification burden by showing
“unlawful pay practices at each of the restaurant locations identified in the Complaint, at about
the same time and place, in generally the same manner, which affected Plaintiff and the putative
class members in the same way,” where the challenged “pay practices and procedures are in
place at the restaurants the Defendants own and operate”); Perez v. Prime Steak House
(Continued)
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evidence that Fried Stewed Nude owned all three of the locations (Downtown Mobile, Saraland,
West Mobile) for which conditional certification is sought, and that other servers (or former
servers) at two of those locations (Downtown Mobile, Saraland) are interested in joining this
litigation to challenge what plaintiffs contend is an invalid tip pool and corresponding FLSA
minimum wage violations flowing from precisely the same Fried Stewed Nude policy and
practice that is common to all three restaurants.13 Under the circumstances of this case, and for
the reasons stated, the Court has “satisf[ied] itself that there are other employees of [Fried
Stewed Nude] who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job
requirements and with regard to their pay provisions.” Dybach, 942 F.2d at 1567-68.
Accordingly, plaintiffs have met their burden.

Restaurant Corp., 959 F. Supp.2d 227, 231 (D.P.R. 2013) (“For a class to extend beyond the
named plaintiffs’ own work location, [the plaintiffs] must demonstrate that ‘employees outside
of the work location for which the employee has provided evidence’ were similarly affected by
the employer’s policies.”) (citations omitted).
13

To be sure, defendants also object that the question of the tip pool’s validity “is
highly fact-specific and dependent upon the restaurant location, shift and time period a server
worked.” (Doc. 81, at 4.) The gist of defendants’ argument is that this case is really about
servers sharing tips with “bussers,” whose duties at Fried Stewed Nude are highly variable and
may include washing dishes. (R. Omainsky Decl., ¶¶ 29-31.) But plaintiffs say this case is
about dishwashers. Their Complaint specifically pleads that “servers were required to give up a
portion of their tips to dishwashers.” (Doc. 4, ¶ 28.) Plaintiffs submit evidence that they were
forced to participate in a tip pool that included employees who “function[] solely as a
dishwasher, working in the dishroom for the whole shift.” (Dyer Decl., ¶ 5; Curry Decl., ¶ 5.)
And plaintiffs also point to defendants’ evidence that precisely the same tip pool policy was in
place at all three Fried Stewed Nude restaurants. (R. Omainsky Decl., ¶¶ 29-31.) The pleadings
and declarations are sufficient to satisfy plaintiffs’ light burden of showing that the servers at all
three Fried Stewed Nude locations are similarly situated for purposes of application of
defendants’ uniform tip pool policy. Should evidence in discovery reveal substantial, systematic
and material differences in the duties of employees sharing in the bounty of the tip pool, which
might make the tip pool’s validity hinge on which restaurant a particular plaintiff worked in or to
which shift he or she was assigned, then defendants are of course free to move for decertification
after discovery is substantially complete. For now, however, plaintiffs’ pleadings and
declarations contain ample evidence that all putative class members were subjected to the same
challenged tip pool policy and that the policy functioned in the same way and was subject to the
same purported legal defects at all three locations.

-12-

b.

Effect of the March 2015 Arbitration Agreements.

Second, defendants assert that the Fried Stewed Nude Employment Arbitration
Agreement signed by 75 servers at the three subject locations in March 2015 necessitates denial
of conditional certification. In defendants’ words, putative opt-in plaintiffs who have signed the
Agreement “are simply not similarly situated to Plaintiffs who have not signed those same
agreements.” (Doc. 81, at 2-3.) Defendants’ position (for which they cite no direct authorities)
is undermined by considerable case law to the contrary. Indeed, district courts have routinely (i)
declined to address arbitration issues in adjudicating motions for FLSA conditional certification,
and (ii) determined that the execution of arbitration agreements by certain prospective opt-in
plaintiffs does not deprive them of “similarly situated” status vis a vis named plaintiffs who did
not sign such agreements. See, e.g., Romero v. La Revise Associates, L.L.C., 968 F. Supp.2d
639, 647 (S.D.N.Y. 2013) (“courts have consistently held that the existence of arbitration
agreements is ‘irrelevant’ to collective action approval ‘because it raises a merits-based
determination’”) (citations omitted).14 The “similarly situated” inquiry under the FLSA turns on

14

See also Woods v. Club Cabaret, Inc., --- F. Supp.3d ----, 2015 WL 6444793, *5
(C.D. Ill. Sept. 28, 2015) (“any issues related to opt-in plaintiffs with arbitration agreements can
be addressed at step-two of the class certification process,” not at conditional certification stage);
Guzman v. Three Amigos SJL Inc., --- F. Supp.3d ----, 2015 WL 4597427, *8 (S.D.N.Y. July 30,
2015) (“Nor does the fact that some of the contracts have arbitration provisions, simplified or
not, create any differences between plaintiffs and other entertainers with respect to whether
defendants violated the FLSA.”); Maddy v. General Elec. Co., 59 F. Supp.3d 675, 685 n.7
(D.N.J. 2014) (“That some service technicians have signed arbitration agreements does not
preclude conditional certification of all service technicians across the United States.”); Salomon
v. Adderly Industries, Inc., 847 F. Supp.2d 561, 565 (S.D.N.Y. 2012) (explaining that the
“relevant” issue for conditional certification “is not whether Plaintiffs and [potential opt-ins]
were identical in all respects, but rather whether they were subjected to a common policy to
deprive them of overtime pay”) (citation and internal quotation marks omitted); Davis v.
NovaStar Mortg., Inc., 408 F. Supp.2d 811, 818 (W.D. Mo. 2005) (“courts have certified
collective actions even though putative class members have executed arbitration agreements”);
Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp.2d 807, 811 (S.D. Tex. 2003) (“Defendant,
further, raises issues about the effect of … newly signed arbitration/release agreements. Most, if
not all of these objections, go to the merits of the action or the forum in which these claims
ultimately should be resolved, not whether notice to potential claimants should be given.”);
Bowman v. Doe Run Resources Corp., 2014 WL 3579885, *5 (E.D. Mo. July 21, 2014) (quoting
with approval authorities holding that “the existence of arbitration agreements is irrelevant to
class certification”) (citations omitted); Amrhein v. Regency Management Services, LLC, 2014
WL 1155356, *10 (D. Md. Mar. 20, 2014) (“the potential for arbitration will not forestall the
(Continued)
-13-

whether putative class members were all subject to the same allegedly violative pay practices,
not whether their employer’s merits defenses are precisely the same for all class members’
efforts to vindicate their FLSA rights in federal court. The Court therefore rejects defendants’
assertion that the 75 servers who signed Arbitration Agreements are thereby rendered dissimilar
from the named plaintiffs for purposes of a FLSA conditional certification analysis.
That said, those Arbitration Agreements will of course affect the mechanics of this action
going forward. As noted, the December 3 Order concluded that seven opt-in plaintiffs who had
signed such Agreements must submit their claims (including arbitrability objections) to
mediation and, if necessary, arbitration. Significantly, rather than dismissing those claims, the
December 3 Order stayed them because, among other reasons, (i) the opt-in plaintiffs raise
threshold challenges to enforceability of the Agreements that an arbitrator might resolve in their
favor, thereby allowing them to rejoin this litigation without ever having the merits decided in
arbitration; and (ii) dismissing their claims at this time would implicate statute-of-limitations
concerns. (Doc. 82, at 11.)
The December 3 Order’s reasoning and result illuminate the proper path for handling the
claims of additional opt-in plaintiffs who signed FSN’s Agreement. As both the Supreme Court
and defendants recognize, conditional certification “does not produce a class with an
independent legal status, or join additional parties to the action,” but merely results in “the
sending of court-approved written notice to employees, … who in turn become parties to a
collective action only by filing written consent.” Genesis Healthcare, 133 S.Ct. at 1530. By
signing the Agreement, putative opt-in plaintiffs did not forfeit the right to receive notice of this
litigation or to pursue FLSA claims against Fried Stewed Nude and Omainsky; rather, they
merely agreed to a different forum and procedure for resolving such disputes. Therefore, these

Plaintiffs’ entitlement to conditional certification”); Nesselrodte v. Underground Casino &
Lounge, LLC, 2012 WL 4378163, *4 (N.D. W.Va. Sept. 25, 2012) (“the FAA does not forbid the
Court from granting conditional certification for a collective action class under the FLSA based
upon a relatively small group of the potential class signing an agreement to arbitrate any claims
arising against the employer”); Pontius v. Delta Financial Corp., 2005 WL 6103189, *4 (W.D.
Pa. June 24, 2005) (“Nor should employees be excluded at this early stage because they … have
signed agreements containing arbitration clauses. Rather, notice and an opt-in opportunity
should be broadly given ….”).

-14-

individuals are properly afforded notice just like all other prospective class members. The
difference is that when plaintiffs who have signed the Fried Stewed Nude Employment
Arbitration Agreement opt-in, defendants may move to compel mediation/arbitration of their
claims. Upon such an occurrence, the claims of those opt-in plaintiffs will be stayed and referred
to mediation/arbitration, just as those of opt-in plaintiffs Booth, Wade, Odom, Henry, Guess,
Lord and Smith were via the December 3 Order. By allowing those individuals to opt-in and
then staying their claims, the Court enables these prospective class members to toll the statute of
limitations.15 This course of action will also create a marker, a placeholder as it were, for these
opt-in plaintiffs’ claims in the event that the arbitrator may decide threshold arbitrability issues in
their favor and return their claims to federal court. In short, while opt-in plaintiffs who have
signed Agreements will have their claims processed differently than those of class members who
have not, the existence of such Agreements neither negates the propriety of conditional
certification nor renders these putative opt-in plaintiffs ineligible to receive notice or file
consents to join, subject to defendants’ right (if they so choose) to move to enforce the
mediation/arbitration provisions.16
c.

Temporal Boundaries of Class Definition.

Third, defendants object that the proposed class definition is temporally inappropriate.
Once again, plaintiffs seek conditional certification of a class of servers at Wintzell’s Oyster
House restaurants in Downtown Mobile, Saraland, and West Mobile who were paid below
minimum wage or for whom defendants claimed a tip credit “from March 6, 2012 through March

15

See, e.g., Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996) (through
§ 216(b), “Congress also incorporated the principle that only a written consent to opt-in will toll
the statute of limitations on an opt-in plaintiff’s cause of action”); Hoffman v. Sbarro, Inc., 982
F. Supp. 249, 260 (S.D.N.Y. 1997) (“only by ‘opting in’ will the statute of limitations on
potential plaintiffs’ claims be tolled”).
16

In so concluding, the Court is persuaded by plaintiffs’ reasoning that
“Defendants’ argument regarding arbitration is best characterized as an affirmative defense,
seeking to compel arbitration in response to prospective claims of opt-in plaintiffs not actually
yet before this Court. … Opt-ins who signed the arbitration agreements should be allowed to file
a consent form. If Defendants choose to compel mediation/arbitration, then the Court can stay
the proceedings for those individuals in the same manner.” (Doc. 84, at 3, 6-7.)

-15-

6, 2015.” (Doc. 65, at 2.) The rub, defendants say, is that Fried Stewed Nude did not even own
the subject restaurant locations until November 5, 2012.
This objection is sound. As the parties are well aware, plaintiffs initially named as an
additional defendant an entity called Wintzell’s, Inc., but reached a settlement with that
defendant in November 2015. Settlement papers jointly filed by plaintiffs and Wintzell’s, Inc.
confirm the following pertinent facts: (i) “Wintzell’s, Inc. and [Fried Stewed Nude] are unrelated
licensees of the Wintzell’s Oyster House brand;” (ii) defendant Robert W. Omainsky “is the
President of FSN;” (iii) Wintzell’s, Inc. sold the Downtown Mobile, Saraland and West Mobile
restaurants to Fried Stewed Nude on November 5, 2012; and (iv) after November 5, 2012, “all
employees of those restaurants have been employed by FSN, not Wintzell’s, Inc.” (Doc. 69, ¶
2.) As part and parcel of their settlement, plaintiffs agreed to “withdraw and discontinue
attempts to conditionally certify a class affecting Wintzell’s, Inc. or involving claims or remedies
against Wintzell’s, Inc.” (Id., ¶ 7(b).) Thus, in court filings in this case, plaintiffs have
acknowledged that the remaining defendants (Fried Stewed Nude and Omainsky) did not
purchase the subject restaurant locations or employ the workers there until November 5, 2012.
So why, then, do plaintiffs seek conditional certification of a class of servers at those restaurants
for a period that includes the span of March 6, 2012 through November 5, 2012, when Fried
Stewed Nude and Omainsky did not own those locations? Plaintiffs do not say. This course of
action is especially curious given that plaintiffs have settled, compromised and otherwise
withdrawn their claims against the entity that they acknowledge did own the restaurants during
that period.17
Viewing this concern in the context of plaintiffs’ burden at the FLSA conditional
certification stage, the Court readily concludes that plaintiffs have failed to show a reasonable
basis for their contention that servers at the Wintzell’s locations in Downtown Mobile, Saraland
17

The Court cannot discern whether plaintiffs’ inclusion of the March 6, 2012
through November 5, 2012 period in their proposed class definition was a mere oversight or
whether there was some deliberate, reasoned basis for it. At any rate, plaintiffs never disclosed
any such reasoning, leaving the undersigned and opposing counsel guessing as to whether they
actually intended to utilize these dates in the wake of the Wintzell’s, Inc. settlement and, if so,
why. On its face, certifying a class including a temporal span when the named defendants did
not own the restaurants, and when they were owned by an entity as to which plaintiffs have
settled or withdrawn their claims in full, would appear both improvident and counterproductive.

-16-

and West Mobile from March 6, 2012 through November 5, 2012 are similarly situated to
servers at those same locations from November 5, 2012 through March 6, 2015. By plaintiffs’
own admission, servers during the earlier time period did not work for the named defendants in
this case, whereas those during the later period did. Plaintiffs identify no facts or legal theory
through which Fried Stewed Nude or Omainsky might be held liable under the FLSA for alleged
minimum-wage violations at Wintzell’s locations occurring before they ever purchased those
locations, particularly where plaintiffs have already settled their claims against the entity that did
own those Wintzell’s locations during that earlier period. Simply put, how can potential opt-in
plaintiffs be similarly situated to the named plaintiffs for the period of March 6, 2012 through
November 5, 2012 when the named plaintiffs have received full compensation and/or withdrawn
their FLSA claims against the restaurant owner during that time period?18 Again, plaintiffs do
not say.
In short, plaintiffs have failed to make even a modest showing that servers at the subject
restaurants from March 6, 2012 through November 5, 2012 are similarly situated to the servers
that worked there from November 5, 2012 going forward. Thus, that earlier time period is
properly excluded from the class definition. While the Court grants plaintiffs’ Motion for
Conditional Certification, the class definition will be narrowed to cover only the time period
from November 5, 2012 through March 6, 2015.

18

To sharpen this point, plaintiffs have admitted that the only named plaintiff who
worked for Wintzell’s, Inc. prior to Fried Stewed Nude’s purchase of the restaurants was Tiffany
Newburn. (Doc. 69, ¶ 3.) Plaintiffs have further admitted that, pursuant to the settlement in this
case, Wintzell’s, Inc. paid plaintiff Newburn the full amount of back pay that she claimed for the
time period that she worked for Wintzell’s, Inc., plus an equal amount in liquidated damages and
an attorney’s fee allowance. (Doc. 76, ¶ 16.) Thus, plaintiff Newburn has now been paid in full
for any FLSA tip-credit violations that occurred during the period of March 6, 2012 through
November 5, 2012. So Newburn can have no remaining valid FLSA tip-credit claims against
anyone for that period because, again, she has already been paid in full. And plaintiffs admit that
no other named plaintiff worked at the subject restaurant locations during the March 6, 2012 to
November 5, 2012 period. So the named plaintiffs are not similarly situated to prospective optin plaintiffs who did work at the Downtown Mobile, Saraland and West Mobile locations during
that period because the named plaintiffs worked for a different entity at a different time, and
have no outstanding claims against anybody based on invalid tip pools during that time period.

-17-

B.

Court-Facilitated Notice and Contents/Form of Same.

In addition to requesting conditional certification of this FLSA collective action,
plaintiffs move for court-facilitated notice. It has long been recognized that the FLSA’s broad
remedial purpose “is best served if the district court is deemed to have the power to give such
notice to other potential members of the plaintiff class to ‘opt-in’ if they so desire and by the
district court’s exercise of that power under appropriate conditions.” Dybach, 942 F.2d at
1567.19 As the Supreme Court has explained, “[b]ecause trial court involvement in the notice
process is inevitable in cases with numerous plaintiffs where written consent is required by
statute, it lies within the discretion of a district court to begin its involvement early, at the point
of the initial notice, rather than at some later time.” Hoffman-La Roche Inc. v. Sperling, 493 U.S.
165, 171, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). “By monitoring preparation and distribution
of the notice, a court can ensure that it is timely, accurate, and informative. Both the parties and
the court benefit from settling disputes about the content of the notice before it is distributed.”
493 U.S. at 172. Particularly in light of the parties’ strident disagreement about certain noticerelated issues, the Court exercises its authority in favor of court-facilitated notice here, in the
interests of preventing misleading communications and ensuring that notice is timely, accurate
and informative.
As noted, the parties do not see eye-to-eye about various aspects of the notice process.
For starters, plaintiffs request that defendants be ordered to produce the “names, addresses, email
addresses, last four digits of their Social Security numbers, and telephone numbers of potential
opt-ins” (doc. 30, at 27) for notice purposes; however, defendants object to the request for Social
Security numbers and telephone numbers (doc. 59, at 30). Next, plaintiffs have proposed a form
notice; however, defendants disagree with the contents of that form as to identification of
counsel, disclosure of the burdens of litigation, description of the lawsuit and class, and omission
of various defenses (doc. 59, at 30). Further, plaintiffs request that, in addition to individual
mailings, the notice be posted in common areas or at the time clocks of each restaurant location
19

Of course, before exercising such power, the district court “should satisfy itself
that there are other employees of the department-employer who desire to ‘opt-in’ and who are
‘similarly situated’ with respect to their job requirements and with regard to their pay
provisions.” Cameron-Grant v. Maxim Healthcare Services, Inc., 347 F.3d 1240, 1244 (11th Cir.
2003) (citation omitted). The Court has done precisely that in the preceding pages.

-18-

(doc. 30, at 28); however, defendants object that such postings are unwarranted and intrusive
(doc. 59, at 30). Finally, plaintiffs have requested (via a separate 23-page Motion and 8-page
Reply) that the notice include a “curative provision” “in order to correct the harm of Defendants’
conduct” (docs. 78, 84); however, defendants object to any such remedial measures in a
corresponding 10-page brief and exhibits (doc. 83).
The Court addresses these topics as follows: With regard to the requested data, plaintiffs
are entitled to receive – and defendants are obligated to provide – names and contact information
for all potential class members. See, e.g., PAL v. Sandal Wood Bar N Grill, 2015 WL 237226,
*2 (S.D.N.Y. Jan. 15, 2015) (“In managing the notice process, courts routinely order employers
to provide contact information for potential plaintiffs.”). Last known mailing addresses and
telephone numbers have obvious utility to plaintiffs’ efforts to track down and notify prospective
opt-in plaintiffs. However, plaintiffs have not shown that Social Security numbers are necessary
for this enterprise, much less that the resulting incursion on employees’ privacy is warranted.
See, e.g., Woods v. Club Cabaret, Inc., --- F. Supp.3d ----, 2015 WL 6444793, *7 (C.D. Ill. Sept.
28, 2015) (“the last four digits of social security numbers would be of marginal use in locating
potential plaintiffs and, whatever that marginal use might be, it is substantially outweighed by
the privacy concerns of potential plaintiffs”); Fasanelli v. Heartland Brewery, Inc., 516 F.
Supp.2d 317, 324 (S.D.N.Y. 2007) (denying request for production of Social Security numbers
of potential opt-in plaintiffs where “Plaintiff has provided no rationale to explain why he requires
such extensive production of information”); Sandal Wood, 2015 WL 237226, at *2 (declining “to
order disclosure of social security numbers where other means of identification are available,
given the sensitivity of such information,” particularly “absent a showing that other forms of
identification will be insufficient”). Defendants’ objection to plaintiffs’ request for production of
the last four digits of Social Security numbers of potential class members is sustained.
With respect to the method of notice, plaintiffs have requested that defendants be ordered
to “post the notice letter in its entirety in the common areas or at the time clocks of each of
[their] facilities.” (Doc. 30, at 28.) Defendants object, on the theory that such postings would be
“overly intrusive and should not be ordered absent evidence that mailing of notices is
ineffective.” (Doc. 59, at 30.) Upon consideration, the Court finds persuasive the line of
authorities supporting defendants’ position. See, e.g., Martinez v. Cargill Meat Solutions, 265
F.R.D. 490, 500-01 (D. Neb. 2009) (rejecting dissemination of notice via workplace posting

-19-

where “[t]here is no evidence personal mailing will be an unreliable means of delivering notice
to the putative plaintiffs”).20 Plaintiffs have presented no evidence, and there is no reason to
believe, that transmission of notice to prospective class members via the methods authorized
herein (U.S. Mail, telephone, e-mail) using employer-provided data will be inadequate to notify
potential opt-in plaintiffs, or that posting of notice in the Fried Stewed Nude restaurants would
serve a legitimate purpose, rather than amounting to an overreaching, duplicative distraction to
defendants’ business. That said, plaintiffs may renew their request for notice via posting upon a
specific showing that other forms of notice are defective or otherwise inadequate here.21
Third, with regard to the content of the notice, the parties have multiple areas of
divergence. However, rather than urging the Court to wade into the minutiae of the notice
language, both sides propose that they be allowed to meet and confer to attempt to hammer out a

20

See also Koehler v. Freightquote.com, Inc., 93 F. Supp.3d 1257, 1266 (D. Kan.
2015) (“Plaintiffs have presented no evidence or suggestion that posting the Notice would reach
a wider audience than mailing the Notice would reach, and the potential class members that such
a posting would reach are the same employees for whom defendant most likely has current home
address information.”); Sandal Wood, 2015 WL 237226, at *3 (“Since defendants will be
required to provide plaintiffs with contact information for past and current employees, posting of
notice at the restaurant is unnecessary at this stage. Plaintiffs’ request is denied without
prejudice to renewal should other forms of notification prove ineffective.”); Barnett v.
Countrywide Credit Industries, Inc., 2002 WL 1023161, *2 (N.D. Tex. May 21, 2002) (“The
Court determines that mailing the notice to the potential class members, rather than also posting
them at Defendants’ offices, is sufficient to provide the potential opt-in plaintiffs with notice of
the suit.”).
21

Two other points on this topic bear mention. First, the undersigned is aware that
some courts have approved notice via posting as a “belt-and-suspenders” means of ensuring that
employees are notified of their opt-in rights. Under the particular circumstances of this case,
however, and given the broad contact information that plaintiffs are already accessing (mailing
addresses, telephone numbers, e-mail addresses), it is difficult to imagine how notice by posting
will achieve anything other than redundancy and intrusion into defendants’ work spaces.
Second, while plaintiffs would link their posting request to defendants’ conduct of requesting
that certain putative class members sign arbitration agreements in March 2015 (see doc. 30, at
28-29), such a nexus is tenuous at best. Plaintiffs have not explained – and the Court does not
perceive – why defendants’ act of asking employees to sign arbitration agreements would render
opt-in notice to those employees via U.S. Mail, telephone or e-mail less efficacious, much less
why an additional type of notice via posting at a restaurant time clock would be reasonably
necessary to maximize awareness of their opt-in rights.

-20-

mutually acceptable form of notice.22 This course of action is appropriate. Pursuant to the
parties’ own expressed wishes, then, the Court directs the parties to meet and confer and make a
good-faith effort to agree on the text of the proposed notice.
Fourth, the Court considers the parties’ extensive briefing on plaintiffs’ Motion for
Curative Provision. Plaintiffs posit that defendants engaged in misleading, deceptive, and
coercive conduct in inducing some 75 servers at Fried Stewed Nude restaurants to execute
Employment Arbitration Agreements in March 2015. According to plaintiffs, defendants misled
servers into thinking that signing the Agreement was mandatory, failed to disclose that they
intended to utilize these Agreements to block servers from joining this lawsuit, failed to inform
servers of their right to join a FLSA collective action, neglected to tell servers that they were
surrendering rights under the FLSA, failed to give servers copies of relevant documents, and
threatened retaliation if employees did not sign. Plaintiffs also insist that the Agreements
themselves are unlawful and invalid because they purport to abridge, waive or disclaim
employees’ rights under the FLSA. Although plaintiffs do not delineate exactly what relief they
seek, they frame it generally in the following terms:
“Plaintiffs request that the Court include a curative instruction in any notice
approved for use in alerting potential class members of their right to opt-in to the
conditionally certified collective action in this matter. This curative instruction is
necessary to counteract the retaliation and misleading information Defendants
have and are communicating to their employees. If this Court finds the
Arbitration Agreement unconscionable in any part, Plaintiffs also request that the
curative instruction address that issue.”
(Doc. 78, at 18.)
The overlap between plaintiffs’ Motion for Curative Provision and their procedural and
substantive unconscionability arguments presented in the context of defendants’ Motion to
Compel Mediation / Arbitration is striking and pervasive. Via the December 3 Order, this Court
has already held that, by the express terms of the Fried Stewed Nude Employment Arbitration
Agreement, disputes as to the validity, scope and enforceability of same (which would
22

See doc. 59, at 31 (“Defendants request that the parties be permitted the
opportunity to confer and agree on these issues and submit briefing on any areas of
disagreement.”); doc. 65, at 13 (“Plaintiffs request that they be allowed to confer with
Defendants to devise a mutually agreeable notice and separately brief any particular issues upon
which they are unable to agree.”).

-21-

encompass all of plaintiffs’ substantive and procedural unconscionability arguments) are
reserved for the arbitrator, not a court, to decide. Accordingly, it would be inappropriate for the
Court to authorize or mandate inclusion in the notice any judicial findings concerning the
validity or enforceability of the Agreements, or any judgment about the propriety of defendants’
methodology in securing such Agreements. By the clear terms of the contract and the December
3 Order, this Court will not pass judgment on those matters, at least in the first instance. Insofar,
then, as plaintiffs are seeking judicial endorsement of a “curative provision” that condemns or
otherwise ascribes wrongdoing to defendants’ conduct vis a vis the Arbitration Agreements, their
request is denied.
Notwithstanding the foregoing, the Court agrees with plaintiffs that prospective opt-in
plaintiffs would benefit from inclusion in the notice of general guidance reflecting that (i)
execution of an Employment Arbitration Agreement does not bar them from filing a consent
form, (ii) filing a consent form may toll the statute of limitations for certain claims they may
have under the Fair Labor Standards Act, (iii) they may be compelled to mediate and (if
necessary) arbitrate their claims if they file a consent form after signing an Employment
Arbitration Agreement, and (iv) defendants are forbidden by law from retaliating against
employees who file consent forms. Alerting prospective opt-in plaintiffs to these principles is
reasonably calculated to alleviate any confusion otherwise engendered by their signing of the
Agreement and subsequent receipt of notice of opt-in rights in this case. Such clarification
stands to benefit everyone, including both the potential opt-ins and the existing parties to this
lawsuit. The Court leaves the precise language of these provisions to the parties’ drafting and
good-faith negotiations; however, plaintiffs’ request that such concepts be embodied in the
notice is granted.
III.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Plaintiffs’ Motion for Conditional Certification and Court-Facilitated Notice (doc.
30) is granted in part, and denied in part;

2.

The Court conditionally certifies a class consisting of all current and former
employees, including servers, of the Wintzell’s Oyster House restaurants located
in Downtown Mobile, Saraland, and West Mobile who were paid a cash wage less
than minimum wage (excluding any credit for tips retained), or for whom

-22-

Defendants claimed a ‘tip credit’ while requiring employees to contribute a
portion of their tips to bussers, dishwashers, and/or other non-tipped employees,
all for the period spanning November 5, 2012 through March 6, 2015;
3.

Defendants’ request that servers who signed the Fried Stewed Nude Employment
Arbitration Agreement be excluded from the conditionally certified class is
denied;

4.

In accordance with the terms of this Court’s Order (doc. 82) entered on December
3, 2015, upon the filing of a consent form by any opt-in plaintiff who did sign the
Fried Stewed Nude Employment Arbitration Agreement, defendants may move to
compel mediation/arbitration of that individual’s claims. Any such motions will
be summarily granted (without briefing), pursuant to the reasoning and
conclusions of the December 3 Order, and the claims of any such affected opt-in
plaintiff will be stayed and referred to mediation/arbitration;

5.

Plaintiffs’ requests that defendants be required to produce the last four digits of
the Social Security numbers of all prospective class members, and that defendants
be required to post notice inside each affected restaurant, are denied;

6.

Defendants are ordered, on or before February 18, 2016, to produce a computerreadable data file containing the names, last known physical addresses, e-mail
addresses, and telephone numbers of all potential opt-in plaintiffs within the scope
of the conditionally-certified class described in item 2;

7.

The parties are ordered to meet and confer and make a good-faith effort to
resolve their disagreements on the terms and text of the proposed notice. On or
before February 11, 2016, the parties must jointly submit a proposed form of
notice for approval by this Court. Should any good-faith disputes remain
regarding the contents of the notice, each party must contemporaneously submit a
memorandum of law, not to exceed ten (10) pages in length, outlining the
specific areas of disagreement, that party’s proposals for remedying those
disputes, and any supporting legal authorities;

8.

Plaintiffs’ Motion for Curative Provision in the Notice (doc. 78) is granted in
part, and denied in part. The Motion is denied insofar as plaintiffs seek
inclusion in the notice of judicial findings as to the procedural or substantive

-23-

unconscionability (or lack thereof) of the Employment Arbitration Agreement.
The Motion is granted insofar as plaintiffs request that the notice include
statements to the effect that (i) execution of the Agreement does not bar an opt-in
plaintiff from filing a consent form, (ii) filing a consent form may toll the statute
of limitations for an opt-in plaintiff’s FLSA tip-credit claims, (iii) an opt-in
plaintiff who previously signed the Agreement may be compelled to mediate and
(if necessary) arbitrate his or her claims upon filing a consent form in this case,
and (iv) defendants may not retaliate against anyone who files a consent form;
and
9.

Defendants’ Motion to Strike Plaintiffs’ Reply (doc. 85) is denied.

DONE and ORDERED this 21st day of January, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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