Eddins et al v. Time Warner NY Cable, LLC

Filing 105

ORDER, contained in the recommendation 104 , Denying 98 Defendant's Motion for Leave to File Surreply in Opposition to Plaintiffs' Motion for Conditional Certification. Status Conference set for 10/30/2014 10:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. By Magistrate Judge Michael J. Watanabe on 9/5/2014.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02521-RM-MJW
DENA M. CANNON,
JULIANA VAN TUIL, and
SUZANNA BOLDEN,
on behalf of themselves and others similarly situated,
Plaintiffs,
v.
TIME WARNER NY CABLE LLC,
Defendant.
RECOMMENDATION ON
PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION OF A COLLECTIVE
ACTION UNDER THE FAIR LABOR STANDARDS ACT, 29 U.S.C. §216(b) AND FOR
COURT ASSISTED NOTICE UNDER AUTHORITY OF SPERLING V. HOFFMAN-LA
ROCHE, 493 U.S. 165 (1989)
(DOCKET NO. 84)
ORDER ON
DEFENDANT TIME WARNER NY CABLE LLC’S MOTION FOR LEAVE TO FILE
SURREPLY IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL
CERTIFICATION
(DOCKET NO. 98)
ORDER SETTING STATUS CONFERENCE ON OCTOBER 30, 2014, AT 10:30 a.m.
Michael J. Watanabe
United States Magistrate Judge
Plaintiffs have all worked as customer service representatives at Defendant’s call
center in Colorado Springs, Colorado. They allege that they often worked off-the-clock
and without pay, due to Defendant’s informal but nonetheless effective policies for
service-call efficiency—in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

2
§§ 201 et seq. (2012). Plaintiffs wish to proceed as a “collective action” on behalf of as
many customer service representatives as will join them, under 29 U.S.C. § 216(b).
As has become usual in these cases, the Court and the parties split discovery
into two stages. Stage 1 discovery is solely for determining whether Plaintiffs’
allegations sufficiently establish a “similarly situated” class of potential opt-in plaintiffs
for purposes of § 216(b). If the Court finds that such a class arguably exists (based on
the pleadings and stage 1 discovery), the Court will “conditionally certify” the collective
action, court-approved notices will go out to that class of potential opt-in plaintiffs, and
the parties will proceed to stage 2 “merits” discovery. Cf. Thiessen v. General Electric
Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) (explaining two-step certification
process).
Plaintiffs have moved for conditional certification (Docket No. 84). Judge
Raymond P. Moore referred the question to this Court pursuant to 28 U.S.C. § 636(b)
(Docket No. 99). The Court assumes that the motion is treated as dispositive for
purposes of 28 U.S.C. § 636(b). See, e.g., Giuffre v. Marts Lake Lodge, LLC, No. 11cv-00028-PAB-KLM, 2012 WL 5199427 n.1 (D. Colo. Oct. 1, 2012). The arguments of
the parties have been considered, and to the extent not addressed herein, deemed
moot or meritless. The Court recommends that Plaintiffs’ motion be GRANTED for the
reasons set forth herein, subject to certain modifications to their proposed notice.
The Court SETS a status conference for October 30, 2014, at 10:30 a.m. at
which the parties shall be prepared to discuss the status of the case and scheduling
matters.

3
Factual & Procedural Background
Plaintiffs allege that, when they worked at Defendants’ call center, they were
obligated to work without pay in two ways. First, by the nature of the job, Plaintiffs
needed to boot up their computers and load various customer-service applications
before fielding calls. But Plaintiffs say they were compelled to field calls immediately
upon clocking in—and thus, they were effectively required to do their booting-andloading while off-the-clock. They allege it took an average of 20 to 30 minutes, every
day (Complaint ¶¶ 23–31).
Second, Plaintiffs allege that they often received phone calls without interruption
or downtime between calls; as a result, there was insufficient time for completing
paperwork after each call. Employees managed the workflow by finishing their
paperwork after the phone calls stopped—i.e., after they clocked out for a meal break or
at the end of a shift. Plaintiffs allege that this amounted to an average of 45 minutes of
unpaid work each week (Complaint ¶¶ 32–39).
As noted, discovery was bifurcated into a conditional-certification stage and a
merits stage. The first stage consisted of a four-month period of discovery limited to
Plaintiffs’ individual FLSA claims and whether they should be conditionally certified as a
class. Stage 1 is now completed. Defendant has taken six depositions: all three named
Plaintiffs, two opt-in Plaintiffs, and one third-party witness identified by Plaintiffs. Both
sides have served and responded to interrogatories and document requests, albeit with
some difficulty getting along through the process.
In their deposition testimony, the five Plaintiffs and the third-party witness all
conceded that Defendants’ formal, written policies prohibited off-the-clock work and that

4
those policies also required timesheets to be accurate. They also all conceded, with
varying degrees of clarity and one exception, that they had never been explicitly told to
work while off-the-clock. However, the third-party witness and most of the Plaintiffs also
testified that they did actually work while off-the-clock, that they were obligated to do so
as a practical matter, and that this de facto obligation was imposed by the “metrics” or
“scorecards” that Defendant uses for monitoring, compensating, and disciplining
employees.
Plaintiffs now wish to conditionally certify the collective action and to send courtapproved notices to potential opt-in plaintiffs (Docket No. 84). They included as exhibits
to their motion (1) a proposed notice, (2) a proposed opt-in form, (3) affidavits from two
named Plaintiffs and one opt-in Plaintiff; (4) deposition transcripts from four of the
depositions taken by Defendant; (5) opt-in forms for eleven opt-in plaintiffs, all of whom
had previously filed their consent to join the case; and (6) a copy of the scheduling order
entered by the Court last November. Defendants filed a response in which they
provided (1) exhibits and excerpts from depositions from other cases filed against
Defendant by Plaintiffs’ counsel (in an attempt to show bad faith on the part of Plaintiffs
and their attorneys), and (2) exhibits and excerpts from all six depositions in this case.
Plaintiffs, in their reply, provided the Court with complete deposition transcripts and
portions of the deposition exhibits. Altogether, the motion, objection, and reply total
about 1,548 pages, with exhibits.
On the apparent belief that those 1,548 pages failed to do justice to the topic,
Defendant sought leave to file a surreply (Docket No. 98). Plaintiffs objected (Docket
No. 100), and Judge Moore referred the motion to this Court (Docket No. 103). The

5
Court finds that Plaintiffs’ reply did not raise new arguments or introduce previously
undisclosed evidence, and that Defendants’ proposed surreply likewise includes no
arguments not already covered in detail in Defendants’ original objection. Accordingly,
the motion for leave to file a surreply is DENIED.
Analysis
Judge Moore recently explained the legal framework for conditionally certifying a
collective action under FLSA:
Section 216(b) of the FLSA authorizes private individuals to recover
damages for violations of overtime provisions. It provides in part:
An action to recover the liability [for unpaid overtime
compensation, retaliation and liquidated damages] may be
maintained against any employer . . . in any Federal or State
court of competent jurisdiction 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).
The FLSA requires that non-exempt employees be paid overtime
compensation for time worked in excess of forty (40) hours in one work
week. 29 U.S.C. § 207(a). The minimum rate of compensation that an
employer must pay a non-exempt employee for overtime work is one-andone-half times the employee’s hourly rate. 29 U.S.C. § 207(a)(1). . . .
The Tenth Circuit has approved the use of a two-step process for
determining whether putative class members are similarly situated to the
named plaintiff. In Thiessen v. General Electric Capital Corp., the court
outlined the case by case or “ad hoc” method as follows: at the first step,
prior to discovery, the district court makes a “notice stage” determination
of whether the plaintiffs are similarly situated. 267 F.3d 1095, 1105 (10th
Cir. 2001). For conditional certification at the notice stage, the Tenth
Circuit “require[s] nothing more than substantial allegations that the
putative class members were together the victims of a single decision,
policy, or plan.” Id. at 1102. “The standard for certification at this stage is
a lenient one.” Baldozier v. Am. Family Mut. Ins. Co., 375 F. Supp. 2d
1089, 1092 (D. Colo. 2005). At this stage, “a court need only consider the
substantial allegations of the complaint along with any supporting
affidavits or declarations.” Smith v. Pizza Hut, Inc., No. 09-CV-01632-

6
CMA-BNB, 2012 WL 1414325 (D. Colo. Apr. 21, 2012) (quoting Renfro v.
Spartan Computer Servs., Inc., 243 F.R.D. 431, 434 (D. Kan. 2007)).
In the second stage, which comes at the conclusion of discovery
and often in the context of a defense motion to decertify the class, the
court applies a stricter standard of “similarly situated,” including application
of at least four factors, to determine whether the case can proceed as a
class action. Thiessen, 267 F.3d at 1102-03; Daugherty v. Encana Oil &
Gas (USA), Inc., 838 F. Supp. 2d 1127, 1132-33 (D. Colo. 2011).
Lysyj v. Milner Distribution Alliance, Inc., No. 13-cv-01920-RM-MJW, 2014 WL 273214,
at *2–3 (Jan. 24, 2014). The first, “notice” stage is a matter of facilitating notice to
potential opt-in plaintiffs and conducting specific discovery for that purpose. See
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 164, 170–71 (1989). It is at the second,
“decertification” stage that courts consider the disparate factual or legal circumstances
of individual plaintiffs and their claims, as well as fairness and procedural
considerations. Thiessen, 267 F.3d at 1103.
I.

Conditional Certification of a Collective Action
Plaintiffs propose a notice group/collective action that the Court will describe as:
All employees with the title “Customer Service Representative” who were
employed at the Time Warner NY Cable, LLC call center at 2221 E. Bijou
St., Colorado Springs, Colorado 80909, from September 5, 2011 to
present.
At the conditional-certification stage, the court looks only for “substantial

allegations” that the proffered class of potential opt-in plaintiffs “were together the
victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102. The
conditional-certification standard is intentionally designed to favor inclusiveness, to
avoid prejudicing plaintiffs who have not yet had an opportunity to join the suit; the later
decertification stage, by comparison, is designed to protect the defendant’s interests.

7
See Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA-BNB, 2012 WL 1414325, at *4 (D.
Colo. Apr. 21, 2012). Accordingly, provided the “substantial allegations” test is met,
conditional certification is appropriate for purposes of notice to the plaintiffs and
discovery. Here, Plaintiffs have met that test, as to their proposed class.
The Court has found only one example of a motion for conditional certification
under FLSA being denied in the District of Colorado: Saarela v. Union Colony Protective
Servs., Inc., No. 13-cv-01637-MSK-MJW, 2014 WL 3408771 (D. Colo. July 14, 2014).
There, Chief Judge Krieger identified three reasons why the plaintiff failed to qualify for
conditional certification. First, the plaintiff’s complaint was “almost entirely conclusory in
nature” and thus did not “set[] forth any ‘substantial allegations’ sufficient to carry Mr.
Saarela's burden.” Id. at *3. Second, although plaintiff’s affidavit added factual detail,
the only evidence it offered as to the existence of similarly situated employees were
vague statements of hearsay from unidentified sources—such as “conversations with
other security guards.” Id. Moreover, plaintiff was evasive when it came to identifying
such other potential plaintiffs during his deposition, and although he ultimately provided
two names, those individuals did not timely provide corroborating affidavits. Id. Chief
Judge Krieger gave these hearsay statements no weight in her analysis. Id. Third,
although plaintiff alleged that his supervisor told him the company’s policy was not to
pay overtime, plaintiff also received his pay in a two-check system due to a loan he had
taken. Id. The peculiar circumstances of the case’s only named plaintiff placed his
allegations as to the company’s pay policy in an ambiguous light. Id. Collectively, the
record was insufficient to constitute “substantial allegations that the putative class

8
members were together the victims of a single decision, policy, or plan” as required by
Thiessen. See id.
None of those three conditions apply here. The Complaint itself is not conclusory
in any fashion; rather, it is pleaded with a high level of factual detail. The allegations as
to the existence of other potential plaintiffs and of a de facto company policy are not
uncorroborated: there are three named plaintiffs and eleven opt-in plaintiffs in this case
already, and a third-party witness gave deposition testimony tending to support many of
Plaintiffs’ allegations. Finally, although each deposed plaintiff presents a slightly
different fact pattern, none are so idiosyncratically situated that their allegations become
ambiguous in light of their circumstances. Rather, they all present the same basic
theory: due to Defendant’s efficiency metrics and despite Defendant’s formal written
policies, Plaintiffs were effectively compelled to work off-the-clock.
Defendant makes a number of arguments to bar conditional certification, but as
will be discussed herein, each argument falls short.
A.

Whether the deposition testimony contradicts Plaintiffs’ allegations

Most importantly, Defendant argues that, during their stage 1 depositions, each
deponent gave testimony expressly contradicting the allegations in the Complaint and in
the three affidavits submitted by Plaintiffs. As Defendant points out, courts have
refused to grant conditional certification where the plaintiffs’ deposition testimony
contradicts their claims, see, e.g., Luksza v. TJX Companies, No. 2:11-cv-01359-JCMGWF, 2012 WL 3277049, at *11 (D. Nev. Aug. 8, 2012), and it would be inappropriate to
grant Plaintiffs’ motion based on patently false affidavits. However, Defendant
mischaracterizes the deposition testimony.

9
For example, Defendant asserts that the third-party witness—Christopher
McKitrick, who was Plaintiff Dena Cannon’s supervisor—testified “that (1) he enforced
[Defendant’s] no-off-the-clock-work policy; (2) he ‘never forced anyone to come in early’;
(3) employees were ‘never . . . told [or] . . . forced’ to do so, and (4) employees who
came in early to load programs were violating TNY’s policies” (Docket No. 93, at 8).
Defendant is right that McKitrick made each of these statements—but Defendant has
taken these statements out of context. For example, while McKitrick did say he never
forced his employees to arrive early for work, he did so while testifying that he “should
have” and that he was “held accountable” when he failed to do so (Docket No. 84–8, at
60–62). Further, McKitrick’s testimony was unequivocal as to the de facto policy
alleged by Plaintiffs:
Q

And there was certainly no requirement that they arrive early,
correct?

A

Requirement? It was not a written requirement that they arrive
early.

Q

And there was no requirement of any other kind that they arrive
early, correct?

A

There -- I need -- we need to talk about that for a minute. Was there
a requirement that anyone arrive early? Is that what you're asking
me?

Q

I'm asking if there was ever a requirement that Miss Cannon arrive
early.

A

Every employee had to be ready to go at their scheduled start time.

Q

Okay.

A

What I mean -- what I mean by that is every employee had to have
all their systems loaded on their computer, their phone set to the
right mode. They had to have logged in. They had to have had
resources ready when they start their shift.

10
(Docket No. 84–8, at 41–42). Defendant’s counsel pressed McKitrick on the contents of
Defendant’s written policies, but McKitrick did not change his testimony:
Q

All right. And if you'll turn with me to the page -- there are some
numbers on the bottom right-hand corner of the page -- TWC
008186. Let me know when you're on that page.

A

I'm there.

Q

And the -- it says on the page, Employees are expected to perform
-- this is the first full paragraph at the top of the page. []
Employees are expected to perform their duties as scheduled. This
means being at the assigned work location and workstation at the
start of the shift, taking breaks and meal periods as scheduled, and
working through the end of the shift. Did I read that correctly?

A

Yes, sir.

Q

And it doesn't say you need to be early, right?

A

It does not say here that you need to be early.

Q

And it doesn't say that you need to have programs or -- or tools
loaded here, does it?

A

It does not say that, but you had to have that.

Q

And you've already told me all of the reasons that you -- you think
that that -- that -- that -- strike that. Strike that. The -- the written
policy right here does not say that you have to have programs or
tools loaded, does it?

MR. HARMAN: Objection.
A

This -- this paragraph right here does not say that.

Q

(By Mr. Chapman) Okay. That's it. Thank you. It says just to be at
your workstation, correct?

A

That's correct.

Q

Okay.

A

But being at your workstation on time would not make you available
and ready to do your job.

11
Q

And you've never seen a written rule that says that, what you just
said, have you?

A

I’ve never seen a written rule. You did, however -- I -- I mean, as
best as I can describe, yes, sir, you're correct, there's not a written
rule that says you have to be there early and load applications
before you start. However, if you didn't, you weren't ready to take
calls.

(Docket No. 84–8, at 57–58). This testimony does not contradict Plaintiffs’ allegations; it
supports them.
Defendant similarly mischaracterizes the deposition testimony of various
Plaintiffs. As to named Plaintiff Juliana Van Tuil, for example, Defendant highlights her
admission, during her deposition, that there was no requirement for her to be at her
desk before the start of her shift (Docket No. 93, at 7). But Van Tuil gave that answer
during a line of questioning about Defendant’s written policies (Docket No. 84–7, at 18–
19). Elsewhere in her deposition, Van Tuil was explicit that Defendant’s de facto
policies were another matter, and she felt compelled to load programs before clocking in
to avoid being sanctioned by Defendant’s performance and efficiency metrics (see, e.g.,
Docket No. 84–7, at 25–25, 29, 37–38, 43–44). Likewise, Defendant argues that
named Plaintiff Suzanne Bolden testified that she was not required to be at her desk
before the beginning of her shift (Docket No. 93, at 7). But the testimony Defendant
cites for this position states only that there was no written policy to that effect. (Docket
No. 84–9, at 25). In several other places in Bolden’s deposition testimony, she states
the opposite, as to the de facto policy (Docket No. 84–9, at 16, 38, 41–42, 48).
This routine was played out in almost every deposition: Defendant’s attorneys
would get Plaintiffs to confirm that Defendant’s written policies were to the contrary of

12
Plaintiffs’ claims, and that no one explicitly told Plaintiffs to work while off the clock;
almost every Plaintiff, however, testified that as a result of Defendant’s performance
metrics, they were compelled as a practical matter to work while off the clock.
Defendant argues that the deposition testimony unequivocally establishes that
Defendant had no policy requiring Plaintiffs to work while off the clock and that Plaintiffs’
allegations are therefore demonstrably false. Defendant is wrong.1 What the deposition
testimony does do is raise a number of merits disputes that are best addressed on a
motion to decertify, on a motion for summary judgment, or at trial. At the conditionalcertification stage, Plaintiffs need only show “substantial allegations” and some factual
support for the idea that other potential plaintiffs have been harmed by the alleged
policy. The depositions Defendant conducted provide that support.
B.

Whether Plaintiffs have dissimilar legal theories or defenses

Defendant also argues that the Plaintiffs have too little in common to represent a
class of similarly situated opt-in plaintiffs. The case law on this point is unequivocal: it is
a question to be raised on a motion to decertify, following merits discovery. Thiessen,
267 F.3d at 1103; Stransky v. HealthONE of Denver, Inc., No. 11-cv-02888-WJM-MJW,
2012 WL 6548108, at *5 (D. Colo. Dec. 14, 2012); Gordineer v. Rocky Mountain

1

Defendant also repeatedly accuses Plaintiffs of perjury (among much other
overheated rhetoric). As to the perjury charge, Defendant plays a game of formalistic
semantics: although Plaintiffs all admit in their depositions to receiving overtime pay, the
three affidavits state that they were always paid for 40 hours of work. But in context, the
affidavits clearly refer to the specific unpaid overtime at issue in the lawsuit, not
overtime in general. Likewise, Plaintiffs’ deposition testimony provides a great deal of
detail about individual employees’ tardiness and attendance problems—and while that
raises questions about their work habits, it does not constitute perjury for their affidavits
to state that office policy prohibited tardiness. The affidavits can be fairly described as
shoddy boilerplate. But defense counsel would serve their client better if they focused
on impeachment at trial rather than wasting this Court’s time with breathless histrionics.

13
Offender Mgmt. Sys., No. 12-cv-01212-JLK, 2013 WL 179327, at *3 (D. Colo. Jan 17,
2013).
Defendant cites a number of cases in which conditional certification was denied
based on such second-stage considerations. However, in each of those cases, the
parties had progressed well into merits discovery by the time the notice-stage motion
was brought, and the court therefore either applied an “intermediate” standard or simply
skipped straight to the second stage. See, e.g., Basco v. Wal-Mart Stores, Inc., No.
Civ.A. 00-3184, 2004 WL 1497709, at *4 (E.D. La. July 2, 2004) (“Based on the
foregoing, the Court will employ the two-step approach . . . . However, in light of the
substantial discovery that has occurred in this matter, the Court will consider the criteria
for both the first and second steps in deciding whether it should certify this matter.”).
Here, the Court and the parties bifurcated discovery into two stages, and merits
discovery has not yet begun. Accordingly, the heightened-standard cases cited by
Defendant have no application here.
C.

Whether Plaintiffs’ counsel is proper class counsel

Defendant also alleges that Plaintiffs’ counsel, The Harman Firm PC, has a
conflict of interest barring it from representing opt-in plaintiffs in this case. The Harman
Firm has recently represented plaintiffs in three cases filed in this District against
Defendant: (1) this action; (2) the action docketed under 1:13-cv-00158-RM-MJW, a
class action for FMLA violations; and (3) the action docketed under 1:14-cv-00037-PABBNB, also a class action for FMLA violations. In the second case, the Harman Firm has
withdrawn from representing plaintiff on acrimonious terms, and that case is currently on

14
hold due to the parties’ progress in settlement discussions (with new plaintiff’s counsel).
The third case has settled and been closed, as of July 2014.
Defendant argues that the Harman Firm has two conflicts of interest. First,
Defendant argues that the Harman Firm is not fit to be class counsel so long as it
represents more than one set of plaintiffs, in more than one case, against the same
defendant. See Lou v. Ma Labs., Inc., No. C 12-05409 WHA, 2014 WL 68605, at *2
(citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999)). However, this argument is
moot because the Harman Firm does not currently represent plaintiffs in more than one
action. Second, Defendant argues that the Harman Firm has improperly “rolled” fees
from one of the other actions into this action, in violation of the rules of professional
conduct. However, Defendant has not proven this to be the case; they’ve provided
evidence that such fee-shifting was part of the settlement negotiations in the action
docketed under 1:13-cv-00158-RM-MJW, but that settlement agreement was never
consummated and, indeed, the plaintiff and the Harman Firm parted ways as a result of
the negotiations. There’s no evidence that the fee-shifting actually occurred. As a
result, the Court finds there is insufficient basis—for now—to believe that the Harman
Firm has a conflict of interest. That said, the question can be revisited at the
decertification stage.
II.

Court-Assisted Notice to Potential Plaintiffs
The Court recommends that the proposed notice be approved, as modified and

appended to this Recommendation and Order. Plaintiffs are entitled to specific
discovery from Defendant, providing detailed identification and contact information for

15
all current and former Customer Service Representatives who worked at the Bijou
Street Call Center at any point since September 5, 2011.
Defendant objects to Plaintiffs’ proposal to distribute the notices by both e-mail
and first-class mail. The Court finds that Plaintiffs have not yet established the need for
e-mail service. The Court therefore recommends that Plaintiffs’ counsel be authorized
to serve the court-approved notices only via the U.S. Postal Service, be it by first-class
mail, certified mail, or registered mail. Should Plaintiffs find that such methods are
ineffective, after making reasonable efforts, they may move the Court for permission to
use alternative methods of service. See, e.g., Whittington v. Taco Bell of America, Inc.,
No. 10-cv-01884-KMT-MEH, 2012 WL 1622457 (D. Colo. May 9, 2012).
Defendant objects to the sending of court-approved notices on the ground that
Plaintiffs’ counsel have already “aggressively solicited” for potential plaintiffs and courtapproved notices would therefore be duplicative. However, in Hoffman-La Roche Inc. v.
Sperling—the case creating and authorizing this court-approved-notice mechanism—
the Supreme Court explicitly approved such notices even where plaintiff had engaged in
a grassroots campaign and had already sent notices to a group of 400 potential
plaintiffs. 493 U.S. at 168–70. Defendant has cited only one case in which the court
approved conditional certification but declined to send notices because they would be
duplicative: Bernard v. Household Int’l, Inc., 231 F. Supp. 2d 433, 436 (E.D. Va. 2002).
In that case, though, the defendant had already provided plaintiffs with names and
contact information for the putative class, and plaintiffs’ counsel had already invested in
advertisements and other solicitations. Id. Here, Defendant has shown, at most, that
Plaintiffs’ counsel has distributed business cards and has engaged in a word-of-mouth

16
campaign facilitated by the individual Plaintiffs. There is no showing that Plaintiffs’
counsel has engaged in anywhere near the level of solicitation as occurred in Bernard,
nor even the level that occurred in Hoffman-La Roche itself. Defendant’s objection on
this ground is misplaced.
Defendant requests, also, that a third-party administrator be used for sending the
notices, receiving the opt-in forms, and filing them with this Court. Such requests have
been approved by this court before, see In re American Family Mut. Ins. Co. Overtime
Pay Litigation, No. 06-cv-17430-WYD-CBS, 2009 WL 248677, at *4 (D. Colo. Feb. 3,
2009), and the idea makes sense here too, given the deeply cantankerous relationship
between Plaintiffs’ counsel and Defendant’s counsel. The Court recommends that a
third-party administrator be ordered, that Defendant pay 50% of the cost of such thirdparty service, and that Plaintiffs pay the other 50%.
Recommendation
WHEREFORE, based on the foregoing findings of fact and conclusions of law,
this Court RECOMMENDS that Plaintiffs’ Motion for Conditional Certification of a
Collective Action Under the Fair Labor Standards Act, 29 U.S.C. §216(b) and for Court
Assisted Notice Under Authority of Sperling v. Hoffman-La Roche, 493 U.S. 165 (1989)
(Docket No. 84) be GRANTED, subject to the modifications noted above and the notice
language appended at the end of this Order.
Orders
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that:


Defendant’s Motion for Leave to File Surreply in Opposition to Plaintiffs’
Motion for Conditional Certification (Docket No. 98) is DENIED; and

17


The parties shall appear at a Status Conference on October 30, 2014, at
10:30 a.m. before Magistrate Judge Watanabe for purposes of reporting
the then-current status of this case and discussion of scheduling merits
discovery and motions deadlines.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the
parties have fourteen (14) days after service of this recommendation to serve and
file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).

Date: September 5, 2014
Denver, Colorado

/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

Notice to Customer Service Representatives Employed by
Time Warner NY Cable, LLC
This is a Notice to all Customer Service Representatives who were employed by
Time Warner NY Cable, LLC, at their call center at 2221 E. Bijou St., Colorado
Springs, Colorado 80909, between September 16, 2010 and the present.
A lawsuit has been filed in the United States District Court, District of Colorado on
behalf of Customer Service Representatives against Time Warner NY Cable, LLC
alleging violations of the federal Fair Labor Standards Act and seeking to recover
unpaid overtime wages and liquidated (double) damages.
Plaintiffs allege that they were not paid for work done before the start of shift,
during shift breaks, and after the end of shift. Defendant Time Warner NY Cable,
LLC denies the allegations and believes that Customer Service Representatives are
and were properly paid under the Fair Labor Standards Act.
Plaintiffs are represented by Walker G. Harman, Jr. of The Harman Firm PC, who
may be contacted at [phone]. Defendant is represented by Nathan
Chapman of Wargo & French LLC, who may be contacted at [phone].
If you were employed by Time Warner NY Cable, LLC as a Customer Service
Representative between September 5, 2011 and the present, and you believe you
may be due unpaid overtime, you may join in this action to recover unpaid wages
by completing the enclosed Consent Form and mailing it to:
[Name and Address of Third-Party Administrator]
If you are a current employee of Time Warner NY Cable, LLC you may join in
the lawsuit in order to recover unpaid wages and liquidated damages. You are
protected by federal law from any retaliation by Time Warner NY Cable, LLC and
your employment will not be affected if you chose to join in this lawsuit.

You have 90 days from the date this notice is mailed to return the form to The
Harman Firm PC for filing in this action. The statute of limitations will continue
to run, reducing your claim, until the date the signed Consent Form is
received by the Court.
If you choose to join this lawsuit, you will be bound by the judgment and may be
impacted by any settlement of the case. The decisions and agreements made and
entered into by Plaintiffs will be binding on you if you join this lawsuit. If you
choose to join this lawsuit, you may be required to respond to written requests for
information and you may be required to produce documents for use in the lawsuit.
You may be required provide sworn testimony under oath at depositions, hearings,
or trial, and you may be required to travel to Denver, Colorado to do so. Further, if
Plaintiffs lose the lawsuit, you may be required to pay a portion of the costs and
attorneys’ fees incurred by Defendant Time Warner NY Cable, LLC in defending
the case.
If you chose to join in the lawsuit you may 1) represent yourself, 2) hire a lawyer
of your choice, or 3) hire The Harman Firm, PC, 1776 Broadway #2030, New
York, NY, 10019.
The Harman Firm will provide representation on a contingent fee basis, which
means that your attorneys’ fees will be paid from amounts collected by settlement
or judgment and will be subject to approval by the Court.
THIS NOTICE HAS BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO.
THE COURT HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF
PLAINTIFFS’ CLAIMS OR DEFENDANT’S DEFENSES.