Ashely v. Youngblood et al

Filing 89

ORDER GRANTING 79 TEMPORARY RESTRAINING ORDER, signed by Magistrate Judge Jennifer L. Thurston on 2/1/2019. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

MARK ASHELY, individually and behalf of )
)
those similarly situated,
)
)
Plaintiffs,
)
)
v.
)
SHERIFF DONNY YOUNGBLOOD, et al., )
)
)
Defendants.
)

Case No.: 1:16-cv-01638 JLT
ORDER GRANTING TEMPORARY
RESTRAINING ORDER
(Doc. 79)

The defendant has filed an emergency motion for a temporary restraining order precluding

17
18

plaintiff’s counsel from conducting meetings (to occur on January 18 and 19) promoted by

19

advertisements plaintiff’s counsel—or someone on their behalf—had been running1 seeking

20

communication with prospective members of the class. (Doc. 792) In support of the motion, the

21

defense has filed a copy of the advertisement which, notably, informs “Kern County Deputy Sheriffs

22

and Detention Deputies[that] Mahoney Law Group, APC and Briana Kim, P.C. are fighting for you.”

23

(Doc. 79-1 at 12) In response, the Court required counsel to participate in a telephonic conference to

24

discuss the situation. (Doc. 80) The conference raised more concerns that it allayed and, consequently,

25
26
27
28

Plaintiff’s counsel asserts that a posting ran in the “Bakersfield Sun” related to this litigation. (Doc. 83-1 at 2) The Court
has never heard of this publication despite having lived in this community for decades. The defense filed a copy of an ad
that ran in the Bakersfield Californian on January 15, 2019. (Doc. 79-1 at 12) The Court presumes that plaintiff’s counsel
erred in asserting in her declaration that someone (the person is not identified) “posted” the ad in the “Bakersfield Sun.”
2
Where the citation does not reference either the “Ashely action” or the “Wonderly action,” the docket number is the same
in both cases.
1

1

1

the Court prohibited the meetings from occurring until it received further briefing from the parties.

2

For the reasons set forth below, the Court GRANTS the motion.

3

I.

4

Factual Background
In the litigation, the plaintiffs claim the defendant failed to comply with the FLSA and pay him

5

as required by law. (Ashely action Doc. 45 at 3-5; Wonderly action Doc. 47 at 3-5) Initially, the

6

plaintiffs were represented by Mr. Petersen, who has since died.

7

From the outset, the plaintiffs in these cases took the position that notice to the potential

8

collection should not be given. (Ashely action Doc. 53; Wonderly action Doc. 55) Mr. Petersen

9

reported at the scheduling conference that there was very little interest in these cases by the plaintiffs’

10

coworkers and, in fact, there was opposition to the Wonderly action by the union representing the

11

deputies. At the scheduling conference, Mr. Petersen reported that he anticipated no deputies would

12

join the Wonderly action and no more than 15 detention deputies would join the Ashely action.

13

Because counsel did not believe there was much interest in the cases, he did not want to bother with

14

providing notice and the Court was forced to order that notice be given to the prospective collection

15

members. Consistent with Mr. Petersen’s predictions, as of the signing of this order, 15 detention

16

deputies have joined the Ashely matter (Ashely action Docs. 77, 78) and no deputies have joined the

17

Wonderly action.

18

Pursuant to the Court’s order that notice would be given, Mr. Petersen stipulated to the notice

19

that would be sent to prospective collection members. (Ashely action Doc. 67; Wonderly action Doc.

20

69) The notice read in pertinent part, “If you join this lawsuit and Sheriff Youngblood wins, you will

21

receive nothing and will be bound by the result. Under some circumstances, Sheriff Youngblood may

22

make a motion to try to recover some portion of his litigation costs and expenses.” Id. at 3. Likewise,

23

it advised, “You will not be retaliated against for participating in this lawsuit. Federal law prohibits

24

Sheriff Youngblood from firing or retaliating against you because of your decision to join the lawsuit.”

25

Id. This notice was not sent due to Mr. Petersen’s illness. (Ashely action Doc. 69; Wonderly action

26

Doc. 71)

27
28
2

Eventually, Ms. Odenbreit appeared3 in the cases. (Ashely action Doc. 72, Wonderly action

1
2

Doc. 74) In November 2018, counsel submitted a stipulated amended notice to be sent to prospective

3

collection members. (Ashely action Doc. 75-1; Wonderly action Doc. 77-1) The notice reads, “If you

4

join this lawsuit and Sheriff Youngblood wins, you will receive nothing and will be bound by the

5

result. Under some circumstances, Sheriff Youngblood may make a motion to try to recover some

6

portion of his litigation costs and expenses.” (Ashely action Doc. 75-1 at 4; Wonderly action Doc. 77

7

at 4) It states further, “You will not be retaliated against for participating in this lawsuit. Federal law

8

prohibits Sheriff Youngblood from firing or retaliating against you because of your decision to join the

9

lawsuit.” (Ashely action Doc. 75-1 at 5; Wonderly action Doc. 77-1) The Court required counsel to

10

mail the notices no later than November 30, 2018 and that opt-ins to be received by February 28, 2019.

11

(Ashely action Doc. 76 at 4; Wonderly action Doc. 78 at 4)
On January 15, 2019, counsel for plaintiff began running an advertisement in at least one local

12
13

newspaper. (Doc. 79-1 at 12) It reads:

ATTENTION KERN COUNTY DEPUTY SHERIFFS
AND DETENTION DEPUTIES

14
15

Mahoney Law Group, APC and Briana Kim, P.C.
are fighting for you.

16
17

You have legal rights in the pending court cases: Mark Ashely v. Sheriff
Donny Youngblood, Case No. 16-cv-01621-JLT and Darren Wonderly v.
Sheriff Donny Youngblood Case No. 16-cv-01621-JLT.

18
19

The legal team representing the Plaintiffs in the above cases will be available
on January 18, 2019 and January 19, 2019 to answer all of your questions and to
discuss your legal rights under the Fair Labor Standards Act of 1938.

20
21

The lawyers will also address concerns raised by potential plaintiffs such as:
Can Sheriff Youngblood’s litigation costs be recovered from you as an opt-in
plaintiff?

22
23

You have protection from retaliation by the department for my participation in
the lawsuits. Retaliation will not be tolerated.

24

What do I stand to gain from joining the lawsuits?
What are my rights under the Fair Labor Standards Act of 1938?
How are the lawyers fighting for the rights of the deputies?

25
26
27
3

28

The Court failed to take note at the time that Ms. Odenbreit failed to file an association of counsel in the case. Given that
Mr. Petersen has passed away, doing so now is not practicable. Thus, she need not take any further action to become an
attorney of record.

3

1

Come learn about your rights in the pending lawsuits under the Fair Labor
Standards Act and talk one-on-one to the lawyers at no cost to you.

2

River Lakes Golf Course, banquet room
The legal team will be available during the following times:
January 18, 2019 from 11:00 a.m. to 6:00 p.m.
January 19, 2019 from 9:00 to 4:00 p.m.

3
4
5

The lawyers are Katherine J. Odenbreit of Mahoney Law Group, APC
www.mahoney.law.net: 249 E. Ocean Blvd., Ste. 814,
Long Beach, CA 90802; (552) 590·5550

6
7

Briana Kim of Briana Kim, PC
www.wagerecovery4.com; 249 E. Ocean Blvd, Ste 814.
long Beach, CA 90802; [phone]

8
[¶]

9
10

Id.

11

Sometime on January 15, 2019, defense counsel, Mr. Austin, received an email from his client

12

with a copy of the advertisement attached. (Doc. 79-1) The next day at 2:39 p.m., Mr. Austin emailed

13

Ms. Odenbreit and Ms. Kim and expressed concerns about the ad and demanded that they withdraw the

14

ad. (Doc. 79-1 at 2, 14) Mr. Austin indicated that if they did not confirm by 5 p.m. that they would

15

withdraw the ad, he would seek “court intervention.” Id. Mr. Austin received no response. (Doc. 79-1

16

at 2) Ms. Odenbreit was occupied with other matters and did not respond. (Doc. 83-1 at 2-3) Ms. Kim

17

offers no explanation why she did not respond. The next morning, at 10:15 a.m., Mr. Austin telephoned

18

and spoke to Ms. Odenbreit. Id. He asked her to withdraw the ad and cancel the meetings. Id. Counsel

19

did not come to agreement5 so Mr. Austin told Ms. Odenbreit he would file a motion for temporary

20

restraining order. Id. at 3.
On January 17, 2019, Mr. Austin emailed Ms. Odenbreit and Ms. Kim to report that he had

21
22

learned that the Court does not hold hearings on temporary restraining orders.6 (Doc. 79-1 at 3, 16) He

23

indicated that if he learned the Court would hold a hearing, he would let them know. Id. Mr. Austin

24

filed the motion at 8:01 p.m. and the Court provided immediate, automatic email notice of the filing

25
26
27
28

The copy of the ad is illegible related to Ms. Kim’s email address as well as the last line, which is omitted, but which
appears to be the disclaimer and references the California Rules of Professional. The ad fails to include the conspicuous
word, “‘Advertisement’ or words of similar import.” Cal. Rules Prof. Conduct 7.3(c).
5
Exactly what was said during this conversation is not clear. Counsel provide differing versions. (Compare Doc. 79-1 and
83-1)
6
In general, the Court does not hold these types of hearings but will do so only if it determines that it is necessary.
4

4

1

through its CM/ECF computer system. (Doc. 79) However, Ms. Odenbreit did not review the filing

2

until the next morning. (Doc. 83-1 at 3-4)
On the morning of January 18, 2019, the Court learned of the filing and set up a telephonic

3
4

conference with counsel to discuss the motion. (Doc. 80) After hearing from counsel, the Court made

5

oral note of its findings and prohibited the meetings from going forward and memorialized its findings

6

and orders in a written order. (Docs. 81-82) It set the matter for further briefing and for argument. Id. at

7

82.

8

II.

9

Preliminary Considerations
Plaintiff’s counsel asserts that the TRO should not have been granted because defense counsel

10

failed to comply with “the strict rules in the Eastern District.” (Doc. 83 at 4) In particular, counsel

11

objects to the moving party’s failure to complete a “TRO Checklist.” Id.

12

Notably, this checklist is encouraged to be filed by the Court’s electronic case filing system.

13

Though the checklist states that it must be filed with a motion for a temporary restraining order, the

14

filing system does not preclude the motion if it is not attached. Notably, the Court’s Local Rules do not

15

require the filing of the checklist and, though it would assist the Court if it were filed and some judges

16

may require it in their Standing Orders, there was no order requiring the checklist in this case.

17

On the other hand, Local Rule 231 anticipates that the moving party will take certain action,

18

“unless impossible under the circumstances.” For example, a party need not file a “complaint” before

19

filing the motion where, as here, the complaint was filed at the initiation of the action. Likewise,

20

provision for a bond need not be made unless otherwise required by statute. (L.R. 151; L.R. 231(c)(6))

21

Thus, though the Court requires procedural requirements to be met, these requirements vary based upon

22

the circumstances.

23

Likewise, though Fed.R.Civ.P. 65 requires notice to the opponent, defense counsel provided

24

notice. Mr. Austin, sent an email about the situation on January 16, 2019 to attorneys, Ms. Odenbreit

25

and Ms. Kim (Doc. 83-2) to which neither attorney responded. He then called and spoke with Ms.

26

Odenbreit on January 17, 2019 during which time he told her he would file a motion for temporary

27

restraining order (Doc. 79-1 at 2-3). Mr. Austin followed this up with an email to Ms. Odenbreit and

28

Ms. Kim, telling them that he was filing the motion and that his assistant contacted the Court and
5

1

learned the Court does not hold hearings for temporary restraining orders but, if a hearing was set, he

2

would let them know. (Doc. 79-1 at 3, 16) Mr. Austin filed the motion on January 17, 2019 and it was

3

served automatically via email by the Court at 8:01 p.m. (Doc. 79) It was served only to Ms. Odenbreit

4

because Ms. Kim had not associated into the case and was not an attorney of record.7 The fact that

5

Ms. Odenbreit did not review the motion until January 19, 2019, does not obviate that she received

6

proper notice of the filing of the motion. Then, due to the emergent nature of the situation, the next

7

morning, the Court, after verifying the availability of counsel and providing notice, conducted a

8

telephonic conference. (Doc. 80) Thus, the Court does not find there was a substantive failure to

9

comply with the Court’s orders, its Local Rules or Rule 65 and the objections on these grounds are

10

OVERRULED.

11

III.

Discussion and Analysis
The advertisement is inaccurate and misleading in many ways. First, it indicates that Kern

12
13

County Deputy Sheriffs and Detention Deputies “have legal rights in the pending court cases: Mark

14

Ashely v. Sheriff Donny Youngblood, Case No. 16-cv-01621-JLT and Darren Wonderly v. Sheriff

15

Donny Youngblood Case No. 16-cv-01621-JLT.” (Doc. 79-1 at 12) In truth, the detention deputies

16

have an interest in the Ashely matter and the deputies have an interest in the Wonderly matter. The

17

two separate groups do not have an interest in both cases.

18

Second, it asserts that Ms. Odenbreit and Ms. Kim are “fighting for” the deputies and detention

19

deputies of Kern County (Doc. 79-1 at 12) when, in fact, they represent only the original plaintiffs and

20

those who have opted in. Parks v. Eastwood Ins. Services., Inc., 235 F.Supp.2d 1082, 1083 (C.D. Cal.

21

2002). The implication of the ad is that whether people decide to opt-in Ms. Odenbreit and Ms. Kim

22

are representing them and their interests. This is contrary to the notice which tells them, “If you do not

23

join the lawsuit by timely returning the attached opt-in form, you will not be eligible to receive any

24

recovery from this lawsuit if successful and the time for you to bring any claim for these issues may

25

expire.” Id. at 6. Thus, the ad is not only misleading, it is plainly false. See Jones v. Casey’s Gen.

26
27
7

28

The Court failed to take note of this fact when counsel filed their stipulation signed by Mr. Austin and Ms. Odenbreit
seeking the Court’s approval of the notice to the prospective collection members implying that Ms. Kim was counsel of
record (Doc. 77-1 at 4); she was not.

6

1
2

Stores, 517 F.Supp.2d 1080, 1084-1085 (S.D. Iowa 2007).
Ms. Odendreit suggests that because the plaintiffs filed complaints, this demonstrates that

3

counsel are “fighting for the rights of potential and existing opt-ins.” (Doc. 83 at 9) Notably, the

4

complaint (Doc. 1) and first amended complaint (Ashely action Doc. 45; Wonderly action Doc. 47)

5

was drafted and filed by Mr. Petersen. Thus, exactly how Mr. Petersen’s actions in October 2016 and

6

July 2017 translates to Ms. Odenbreit and Ms. Kim “fighting” for those who eschewed these cases is

7

not explained. At the hearing, Ms. Kim asserted that the fact that notice has been given outlining the

8

allegations of the complaint and reporting that the defendant denies the allegations demonstrate that

9

“Mahone Law Group, APC and Briana Kim, P.C. are fighting for you.” However, given that the Court

10

was forced to order notice to the prospective collection members over the objection of the plaintiffs,

11

the Court rejects that the notice is evidence of counsel’s efforts on behalf of the two groups of

12

employees. Indeed, Ms. Kim admitted at the hearing that plaintiffs’ counsel have not propounded any

13

discovery further demonstrating that they are not yet “fighting for” anyone who has not opted into the

14

litigation.

15

Third, Ms. Kim filed an appearance—not an association of counsel—in the cases during the

16

evening of January 31, 2019 (Doc. 87), more than two weeks after the advertisement ran and about

17

two weeks after the meetings were to occur. Before this, she had never sought to associate into the

18

cases, had never appeared in the cases and had never filed an appearance or an association of counsel

19

in either case.

20

Despite this, the ad implies also that if the members decide to opt-in, they will be represented

21

by Ms. Odenbreit and Ms. Kim. It refers to themselves as “The legal team representing the Plaintiffs

22

in the above cases . . .” and also describes the potential collection members as “opt-in plaintiffs” (Doc.

23

79-1 at 12). Though these are both accurate statements, they are misleading because they imply that an

24

“opt-in plaintiff” or the “potential plaintiffs” have no choice but to be represented by “the legal team

25

representing the Plaintiffs in the above cases . . .” In fact, conspicuously missing from the

26

advertisement is the language from the notice, which expressly tells them, “You have a right to consult

27

with an attorney of your choosing before deciding to join this lawsuit . . . You may also choose to be

28

represented by a separate attorney.” (Ashely action Doc. 75-1 at 5; Wonderly action Doc. 77-1). Thus,
7

1

though they may choose to be represented by either Ms. Odenbreit or Ms. Kim or both of them, they

2

are entitled also to reject this representation and choose to be represented by a different lawyer. The

3

ad implies otherwise.

4

The ad is confusing and misleading also when it states, “You have protection from retaliation

5

by the department for my participation in the lawsuits.” (Doc. 79-1 at 12, emphasis added) These

6

statements claim that retaliation against the prospective collection members is prohibited—not for

7

their decision to opt-in—but, apparently, for the fact that counsel is participating in the prosecution of

8

the actions. This is contrary to the Court’s notice that informs prospective members that they are

9

protected from retaliation “because of your decision to join the lawsuit.” (Ashely action Doc. 75-1 at

10

5; Wonderly action Doc 77-1 at 5). Until this ad, most prospective members would probably not have

11

been concerned about retaliation if they chose not to opt-in. The ad suggests that concern may be

12

warranted due to the mere existence of the lawsuits.

13

With these facts in mind, the Court is concerned also that it has been offered inconsistent

14

explanations of what counsel hoped to achieve with the meetings. Initially, Ms. Odenbreit reported—

15

despite her stipulation to the notice—that the notice was defective because it informed readers of a risk

16

of costs being awarded against them if they opt-in. She stated that the purpose of the meetings was to

17

investigate this so she could report to the Court. However, her opposition to the motion fails to

18

reference this investigatory purpose.

19

Though Ms. Odenbreit indicates she has learned from unspecified people that there are some

20

who are concerned about a cost award or retaliation if they opt-in, presumably, as she told the Court,

21

she told them her opinion that the likelihood of this was quite low. Likewise, Ms. Odenbreit admitted

22

previously that she would tell them nothing different related to the risk of retaliation than that included

23

in the notice already sent to the prospective members. Indeed, she reports that between 20 and 30

24

members (from this case and the companion case) have expressed concern about retaliation and a cost

25

award but, apparently, what she has told them has not allayed these fears, given that only 15 people

26

have opted into this case and none have opted into the other. Notably, these are exactly the numbers

27

Mr. Petersen expected when he argued that the Court should not require notice to the prospective

28

collection members.
8

1

The authorities cited by Ms. Odenbreit fail to demonstrate that the Court acted erroneously

2

when it prohibited the meetings. Plaintiffs rely upon Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) to

3

assert that “Lower court abused its discretion where prohibited plaintiff’s counsel from speaking to

4

potential class members finding.” (Doc. 83 at 5) While providing a reminder of the need to make

5

findings—as the Court has done previously and is doing here—Gulf’s factual situation is so different

6

here as to provide little guidance.

7

In Gulf, the court prohibited contact with prospective class members without preapproval of

8

the message to be given the members and in doing so, made no findings regarding whether there was

9

actual or imminent abuse of the Rule 23 processes. Gulf, at 89-90. The United States Supreme Court

10

noted, “The court made neither factual findings nor legal arguments supporting the need for this

11

sweeping restraint order.” Id. at 103. The Court continued, “We conclude that the imposition of the

12

order was an abuse of discretion. The record reveals no grounds on which the District Court could

13

have determined that it was necessary or appropriate to impose this order. [Footnote] Although we do

14

not decide what standards are mandated by the First Amendment in this kind of case, we do observe

15

that the order involved serious restraints on expression. This fact, at minimum, counsels caution on the

16

part of a district court in drafting such an order, and attention to whether the restraint is justified by a

17

likelihood of serious abuses.” Id., footnote omitted.

18

Notably, in Gulf, no class notice had been provided and the prospective class members were

19

under a significant time pressure to decide whether to accept an offer of backpay in exchange to

20

releasing any claims of discrimination. Gulf, at 91, 100. Here, of course, the prospective members

21

have been given legally correct information about the litigation and been encouraged to seek out

22

advice from counsel. There is no risk of them losing rights by failing to opt-in. At most, they simply

23

miss the opportunity to enter this litigation, but they are not precluded from initiating their own

24

litigation.

25

Likewise, plaintiffs’ counsel rely upon Parks v. Eastwood Ins. Servs., Inc., 235 F.Supp.2d

26

1082, 1082 (C.D. Cal. 2002) for the proposition that “Communication with the putative class in a

27

Section 216(b) action is permissible without opposing counsel's permission, so long as the

28

communication does not ‘undermine or contradict the court's own notice.’” As recited above, the
9

1

advertisement above does undermine the Court’s notice in many ways.
The plaintiff’s citation to Soto v. Castlerock Farming & Transp., Inc., 2013 WL 6844398,

2
3

(E.D. Cal. Dec. 23, 2013) and Munoz v. Giumarra Vineyards Corp., 2012 WL 2612016, at *6 (E.D.

4

Cal. July 5, 2012) are equally unavailing. Both Soto and Munoz were in a pre-class certification

5

posture and, though there were allegations of misinformation being provided to workers, there was no

6

evidence of this. This is different from the current situation, as set forth above.
In Cox Nuclear Med. v. Gold Cup Coffee Servs., Inc., 214 F.R.D. 696, 697-698 (S.D. Ala.

7
8

2003), the court concluded that for the court to restrict communications with Rule 23 class members,

9

“Two kinds of proof are required. First, the movant must show that a particular form of

10

communication has occurred or is threatened to occur. [Footnote] Second, the movant must show that

11

the particular form of communication at issue is abusive in that it threatens the proper functioning of

12

the litigation. Abusive practices that have been considered sufficient to warrant a protective order

13

include communications that coerce prospective class members into excluding themselves from the

14

litigation [Footnote]; communications that contain false, misleading or confusing statements;

15

[Footnote] and communications that undermine cooperation with or confidence in class counsel.

16

[Footnote].” (Footnotes omitted)
Assuming Cox applies here, as noted throughout, the Court finds that there has been

17
18

communication with prospective members of the collection through an advertisement that singled out

19

two specific groups. It was not a generalized message but, instead, a message targeted and directed to

20

the two groups of KCSO employees at issue in these cases.8 The Court finds that the advertisement

21

contained patently false, inaccurate and misleading information that contradicting the express

22

information provided in the Court-ordered notice. Therefore, the Court concludes the advertisement

23

threatens the proper functioning of the litigation and according to Cox, cannot be tolerated.

24

This Court is obligated to ensure that prospective collection members receive accurate

25

information so they may decide whether to opt in. The notice, which was stipulated to by Ms.

26
27
8

28

The Court concludes that the advertisement is a solicitation of clients due to its targeted nature and because it misleads in
various ways including that opt-ins will be represented by the Mahone Law Group, APC and Briana Kim, P.C. and that the
lawyers are already acting on behalf of potential opt-ins. Cal. Rules. Prof Conduct 7.3(a).

10

1

Odenbreit, accurately told prospective members the information they need to decide whether to join

2

the litigation, where they can go for further information and their rights related to the various possible

3

outcomes of the litigation. In Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170-171 (1989, the

4

Court held that the “benefits [of the collective action], . . . depend on employees receiving accurate

5

and timely notice concerning the pendency of the collective action, so that they can make informed

6

decisions about whether to participate. Section 216(b)’s affirmative permission for employees to

7

proceed on behalf of those similarly situated must grant the court the requisite procedural authority to

8

manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise

9

contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure. See

10

Fed.Rule Civ.Proc. 83. It follows that, once an ADEA action is filed, the court has a managerial

11

responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an

12

efficient and proper way.”] Because the advertisement failed to provide accurate information about the

13

cases, the motion is GRANTED. Plaintiffs’ counsel SHALL NOT communicate with potential

14

collection member in a manner that is false, inaccurate or misleading, whether the communication is in

15

writing, in an electronic medium or in person.

16

IV.

Request to Extend the Deadline for Opt-Ins

17

The plaintiffs assert that the deadline for opt-in should be extended 14 days due to the fact the

18

Court refused to allow the meetings on January 18 and 19 to proceed. (Doc. 83 at 9) They argue that

19

“the TRO should be lifted and the parties respectfully should get a brief continuation of the deadline

20

by which to opt-in commensurate with the number of days between January 18, 2019 and the hearing

21

date in this matter (or at least 14 days). Potential opt-ins can be notified by postcard sent by the class

22

action administrator informing them of the continued deadline and briefly explaining why the

23

continuance occurred, . . .” Id.

24

///

25

///

26

///

27

///

28

///
11

1

The Court DENIES this request because there remains sufficient time for potential opt-ins to

2

weigh their options and to obtain legal advice while doing so. Also, the Court concludes that mailing a

3

postcard telling the prospective collection members of the Court’s findings here would likely

4

undermine the confidence the collection members may have in this litigation and in counsel and would

5

discourage them from joining the litigation for reasons apart from the merits of the cases.

6
7
8
9

IT IS SO ORDERED.
Dated:

February 1, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12