Orozco, et al. v. Illinois Tool Works, Inc.

Filing 107

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr on 4/28/17 ORDERING (1) the Court approves the class notice provided by Defendant, Hill Decl., ECF No. [102-1], Exs. 12, which reflects both the parties' agreement and the use of opt-out postcards without Plaintiffs' proposed language; (2) Defendant shall disclose all class members' contact information to Class Counsel; and (3) the Class Notice shall be mailed within thirty (30) days. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN OROZCO and JUAN OROZCOBRISENO, on behalf of themselves
and on behalf of all persons similarly
situated,
Plaintiffs,

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MEMORANDUM AND ORDER

v.
ILLINOIS TOOL WORKS INC., a
corporation, and DOES 1 through 50
Inclusive,
Defendant.

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No. 2:14-cv-02113-MCE-EFB

In this action Plaintiffs challenge the sufficiency of the wage statements

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Defendant provided to certain of its employees and Defendant’s meal break policies at

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one of its California plants. On February 17, 2017, this Court certified Plaintiffs’ two

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proposed classes based on these two claims. ECF No. 99. Plaintiffs have now moved

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for approval of their proposed form of class notice. ECF No. 100.1

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The parties have agreed on the form of class notice in all respects except the use

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of opt-out postcards. Plaintiffs “object[] to the use of a postcard,” and if postcards are to

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be included, they request the following two sentences be included on those cards:

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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs in accordance with Local Rule 230(g).

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I understand that if I send in this postcard I will not receive
any money from this case. I understand that by opting out I
will have to file a claim with the Labor Commissioner or hire
my own attorney at my own expense to file a lawsuit on my
behalf in order to prosecute my claims.

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Pls.’ Reply, ECF No. 103, at 2.

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Plaintiffs’ original proposed class notice included reference to an opt-out

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postcard,2 but Plaintiffs now oppose their use. Pls.’ Reply, at 2. Plaintiffs explain this

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change as follows: “While the initial motion contemplated using a postcard, Plaintiff[s]

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further researched the issue and found opinions by California District Courts holding that

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postcards can cause class members to be confused and encourage them to unwittingly

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opt out of class actions.” Id. While it is true that use of opt-out postcards can be

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confusing, see, e.g., Stafford v. Brink’s, Inc., 2016 WL 6583046, at * 2 (C.D. Cal. Mar. 8,

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2016) (“[T]he Court is concerned that the opt-out postcard may be confused for the

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settlement claim forms that Defendant previously mailed . . . .”), Plaintiffs have provided

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no explanation for why they would be confusing here. Indeed, Plaintiffs explain their

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change of heart as motivated not by any specific concern of confusion, but only by their

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discovery of cases saying that postcards can be confusing. The cases Plaintiffs cite,

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however, do not stand for any general proposition that opt-out postcards are per se

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confusing. Indeed the Federal Judicial Center’s Manual for Complex Litigation states

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that “[a] simple and clear form for opting out is often included” with notices of class

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actions. Manual for Complex Litigation (Fourth) § 21.311, at 289 (2004).

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The Court finds that, here, opt-out postcards will likely lessen confusion, not

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create it. The agreed-upon class notice provides two separate forms for the two

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separate certified classes. See Def.’s Opp’n, at 1–3. However, 23 of the 185 class

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members belong to both classes. Given this overlap between the two classes, greater

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clarity will result from including opt-out postcards that identify the relevant class an

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individual is opting out of. The opt-out postcards Defendant provides clearly articulate

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Plaintiffs’ Motion included a proposed form of class notice, which had been sent to Defendant’s
counsel a week prior without objection. Mot. for Approval of Notice of Class Action, at 3. The parties
subsequently corresponded and agreed to several modifications. Def.’s Opp’n, ECF No. 102, at 2–3.

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which class the individual wants to not be a part of: “By this postcard, I am electing not

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to participate in the above-referenced Class Action, and to opt out of the Meal Period

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Class.” or “By this postcard, I am electing not to participate in the above-referenced

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Class Action, and to opt out of the Wage Statement Class.”

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Finally, the Court turns to the proposed language that Plaintiffs request be

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included on any opt-out postcard. Notice provided to class members should “contain an

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adequate description of the proceedings written in objective, neutral terms, that, insofar

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as possible, may be understood by the average absentee class member.” Retiree

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Support Grp. v. Contra Costa County, No. 12-cv-00944-JST, 2016 WL 4080294, at *6

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(N.D. Cal. July 29, 2016) (quoting In re Nissan Motor Corp. Antitrust Litig., 552 F.2d

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1088, 1104 (5th Cir. 1977)). Plaintiffs’ proposed language is not objective or neutral, but

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misleading and likely to unduly influence class members’ decisions of whether to opt-out

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of the class. The language heavily implies that class members are guaranteed some

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amount of money (“I will not receive any money”) and that class members will be

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required to take some affirmative action if they opt out (“I will have to file a claim with the

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Labor Commissioner or hire my own attorney at my own expense”). Thus, the Court

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rejects Plaintiffs’ proposed language.

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Accordingly, (1) the Court approves the class notice provided by Defendant, Hill

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Decl., ECF No. 102-1, Exs. 1–2, which reflects both the parties’ agreement and the use

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of opt-out postcards without Plaintiffs’ proposed language; (2) Defendant shall disclose

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all class members’ contact information to Class Counsel; and (3) the Class Notice shall

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be mailed within thirty (30) days

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IT IS SO ORDERED.
Dated: April 28, 2017

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