Zaborowski et al v. MHN Government Services, Inc. et al

Filing 99

ORDER RE FLSA COLLECTIVE ACTION NOTICE DOCUMENTS (Illston, Susan) (Filed on 6/14/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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THOMAS ZABOROWSKI, et. al, on behalf of
themselves and a putative class,

United States District Court
For the Northern District of California

v.

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ORDER RE FLSA COLLECTIVE
ACTION NOTICE DOCUMENTS

Plaintiffs,

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No. C 12-05109 SI

MHN GOVERNMENT SERVICES, INC. and
MANAGED HEALTH NETWORK, INC.,
Defendants.

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/

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On May 1, 2013, the Court granted defendants’ motion to stay the case pending its appeal of the
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Arbitration Order, to become effective once the conditionally certified FLSA class receives its
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notification and invitation to opt into the case. The Court ordered the parties to jointly file a proposed
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notice. Although it appears there was a significant attempt to reach an agreement on the notices, the
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parties were unable to agree on all aspects of the notice, and requested that the Court resolve these
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differences. The Court will address each issue in turn.
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1.

Notice Procedure

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The parties agreed that the notification costs will be borne by plaintiffs, the notices will be
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distributed by mail and email, and the notification period will be 75 days. The parties disagreed about
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whether the contact information of the putative class, the Military and Family Life Consultants
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(“MFLCs”), should be produced to plaintiffs or a third party.
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The Court has already ordered that defendants produce the contact information to plaintiffs. See
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Docket No. 80 at 6. In case there is any confusion, the Court again ORDERS defendants to produce to

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plaintiffs in Microsoft Excel or comparable format the names, all known addresses, all known e-mail

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addresses, and all known telephone numbers of all known MFLCs, by no later than June 21, 2013.

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2.

Heading and Caption

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Defendants’ proposed notice uses a caption similar to a court document. Plaintiffs’ simpler

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caption merely states the name of the court. The Court prefers defendants’ proposed caption, which

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makes the notice look more like an official court document, and less like an advertisement.

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United States District Court
For the Northern District of California

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3.

Footer

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Defendants’ proposed notice includes a footer that states, “NOTICE OF CONDITIONAL

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CERTIFICATION CASE NO. 12-CV-05109-SI.” Plaintiffs’ proposed notice includes a footer that

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states, “For more information, visit www.MFLC-OT.com or call toll free XXX-XXX-XXXX.” The

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Court finds that both of these footers provide useful information to the MFL Consultants. Therefore,

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the footer shall include both parties’ proposed footers, with defendants’ footer above plaintiffs’ footer.

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4.

Description of Defendants’ Position

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In § 3 of the notice, defendants’ proposed explanation of their position is: “MHNGS denies the

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Plaintiffs’ allegations and contends that MFLCs were properly classified as independent contractors and

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are not entitled to overtime pay under the FLSA, and that, even if they were not properly classified as

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independent contractors, they were exempt from overtime.” Plaintiffs argue that the emphasized clause

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should be redacted, because it is redundant. The Court finds that the additional language is not

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redundant or duplicative; it adds extra information, and therefore should be included.

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5.

Joining the Lawsuit

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Plaintiffs’ proposed explanation of joining the lawsuit includes the following explanation: “If

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you have provided services as an MFLC independent contractor to MHNGS at any time from October

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2, 2009 to the present, you may join this lawsuit. You can join by mailing, faxing, or emailing the
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enclosed green “Consent to Join” form to the Plaintiffs’ attorneys before the deadline.” Defendants

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object to the emphasized words, arguing that they are duplicative and unnecessary. The Court finds that

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plaintiffs’ proposed language provides useful information to the MFLCs, and therefore should be

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included.

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6.

Evidence Preservation
The parties disagree on how to communicate to the MFLCs regarding evidence preservation.

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Defendants’ proposed notice goes into great depth on the topic, and plaintiffs argue that this section

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could be overwhelming or intimidating to lay persons. However, defendants argue that plaintiffs’

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United States District Court
For the Northern District of California

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proposed notice does not provide enough information to the MFLCs on this important topic. The Court

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finds that the following explanation sufficiently addresses these competing concerns: “If you join this

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lawsuit, you may be required to respond to written questions, produce documents you have related to

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the case, sit for a deposition and/or testify in court – in which case Plaintiffs’ counsel will assist you.

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You should preserve evidence relevant to this lawsuit.” No additional explanation is necessary.

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7.

Information Regarding Defendants’ Counsel

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Plaintiffs argue that inclusion of MHN’s counsel’s information will be confusing and redundant.

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The Court disagrees, and finds that it will provide useful information to the MFLCs as they decide

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whether or not to opt in to the lawsuit.

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Plaintiffs argue that the MFLCs should be warned of the risks of contacting defendants’ counsel.

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The Court agrees. However, plaintiffs’ proposed language should be modified as follows: “You are

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free to provide information and evidence to either side in the lawsuit – to the Plaintiffs’ counsel

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representing MFLCs or to MHN and its counsel. Be aware that MHN’s counsel solely represents MHN

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– they do not represent your interests.”

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8.

Information Regarding the Status of the Lawsuit

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The parties’ notices differ in the information they provide to the MFLCs regarding the status of

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the case. The Court finds that plaintiffs’ version is preferable, because it is more concise and more
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accurate.

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Consent to Join Form

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Defendants object to the bottom portion of plaintiffs’ Consent to Join Form, which provides

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instructions on when and how to submit the form. The Court finds that this information will be helpful

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to the MFLCs, and should be included. Therefore, it approves plaintiffs’ version of the Consent to Join

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Form.

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10.

Privileged Attorney-Client Communication Notice

United States District Court
For the Northern District of California

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Plaintiffs’ version of the Privileged Attorney-Client Communication Notice includes a section

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at the bottom entitled “Additional Information,” which has a bulleted list of information. The Court

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finds that this information is duplicative and redundant with the information provided in the notice. The

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Court finds that the entire “Additional Information” section should be removed, but it otherwise

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approves of plaintiffs’ version of the Privileged Attorney-Client Communication Notice.

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Plaintiffs are ORDERED to disseminate the notices to the MFLCs in accordance with this order
by no later than July 12, 2013.

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IT IS SO ORDERED.

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Dated: June 14, 2013
SUSAN ILLSTON
United States District Judge

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