Palma et al v. Metro PCS Wireless, Inc.

Filing 132

ORDER: The Court approves Plaintiffs' proposed class notice [128-1] as explained and modified herein. The Court approves dissemination of class notice via first class mail and via email. The Court rejects Plaintiffs' proposal of sending a reminder postcard. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 1/22/2014. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KAREN PALMA and HALLIE SELGERT,
Plaintiffs,
v.

Case No.

8:13-cv-698-T-33MAP

METROPCS WIRELESS, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to the
parties’ Joint Notice of Filing Proposed Class Notices and
Status Report (Doc. # 128), which was filed on December 30,
2013.

Therein, the parties provide their respective proposed

forms

of

notice

to

the

class

and

briefs

regarding

dissemination of class notice and other issues in this Fair
Labor Standards Act collective action.

The parties provided

further analysis in submissions filed on January 8, 2014 (Doc.
# 129) and January 13, 2014. (Doc. # 130).
For the reasons that follow, the Court adopts Plaintiffs’
form of class notice, authorizes email notice to the class,
but

does

not

authorize

the

dissemination

of

“reminder

postcards” to the class.
I.

Background
On December 16, 2013, the Court granted Plaintiffs’

Motion

to

Conditionally

Certify

Collective

Action

and

Facilitate Notice to Potential Class Members. (Doc. # 125).
In that Order, the Court conditionally certified a national
class of Account Service Representatives (“ASR”) and directed
the parties to confer regarding the content of the proposed
class notice and the means of disseminating the notice to the
class.

The parties’ proposed notices and briefs are before

the Court (Doc. ## 128-130).
II.

Content of Class Notice
The Court notes, and the parties agree, that the dueling

forms of class notice are strikingly similar in content.

The

salient differences between the two forms of class notice are
(1) Plaintiffs’ proposed notice states that it is “CourtAuthorized;” (2) Plaintiffs’ proposed notice states that ASRs
who previously signed declarations indicating that they would
not join the action are still eligible to participate in the
action; and (3) Plaintiffs’ proposed notice contains antiretaliation language.
A.

Court-Authorized Notice

Court-authorized notice in a class action context helps
to prevent “misleading communications” and ensures that the
notice is “timely, accurate, and informative.”

Hoffmann-La

Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989).
determines

that

it

is

appropriate
2

to

adopt

The Court

Plaintiffs’

proposed

class

notice

as

consistent with these aims.

modified

herein

because

it

is

The Court recognizes that the

notice to the class should not appear to be weighted in favor
of one side or the other. As enunciated in Hoffmann-La Roche,
“in exercising the discretionary authority to oversee the
notice-giving process, courts must be scrupulous to respect
judicial neutrality. To that end, trial courts must take care
to avoid even the appearance of judicial endorsement of the
merits of the action.” Id. at 174.
Defendant contends that describing the notice as “CourtAuthorized” reflects that the Court endorses participation in
the action by Account Service Representatives.

The Court

disagrees. The first statement in Plaintiffs’ proposed notice
is that: “This is a Court-Authorized Notice and is not a
Solicitation from a Lawyer.

The Court Has Made No Finding as

to the Merits of the Case at this Time.” (Doc. # 128-1 at
1)(emphasis added). The notice also contains other statements
reflecting the Court’s neutrality, including the statement
that: “The Court has not yet decided whether Defendant has
done anything wrong or whether this case will proceed to
trial.” (Id. at 2).

The Court has assessed Plaintiffs’

proposed class notice and determines that it does not contain
any statements which detract from the Court’s neutrality or
3

show an endorsement of Plaintiffs’ position.1
B.

ASR Declarations Disavowing Interest in the Action

The Court has also considered Defendant’s objection to
the statement in Plaintiffs’ proposed notice indicating that:
“All ASRs who meet this description are eligible to join this
case, even if they previously signed a declaration stating
that they did not intend to join the case.” (Doc. # 128-1 at
2). Defendant correctly points out that this Court previously
denied Plaintiffs’ motion for issuance of a corrective notice
to the class. (Doc. # 111).
deny

Plaintiffs’

Motion

However, the Court’s decision to
for

a

Preliminary

Injunction,

including the issuance of a corrective notice, differs from
the present inquiry, which concerns the content of the class
notice.
The record reflects that a number of Account Service
Representatives

signed

declarations

indicating

their

disinterest in this action, and those very same declarations
were submitted to the Court by Defendant in an effort to
convince the Court that conditional certification was not

1

The Court also rejects Defendant’s contention that
Plaintiffs’ proposed notice to the class is one sided or
overly favorable to Plaintiffs.
The Court finds that
Plaintiffs’ proposal adequately describes both sides’
respective positions in a neutral manner.
4

warranted.

At

this

juncture,

the

action

has

been

conditionally certified and the Court determines that it is
appropriate to explain to the Account Service Representatives
who signed a contrary declaration that they may join the
action, if they so elect.
C.

Anti-Retaliation Language

Plaintiffs’ proposed class notice contains the following
anti-retaliation language in boldface type:
The law prohibits anyone from discriminating or
retaliating against you for taking part in this
case. If you believe that you have been penalized,
disciplined, punished, threatened, intimidated, or
discriminated against in any way as a result of
your receiving this notification, your considering
whether to complete and submit the Notice of
Consent, or your having submitted the Notice of
Consent, you may contact Morgan & Morgan, P.A. at
the number provided above.
(Id. at 3).
Although

the

Court

generally

does

not

find

anti-

retaliation language to be objectionable in class action
notices,

the

Plaintiffs

Court

crosses

finds
the

that
line

the
from

language

proposed

informative

to

by
an

inappropriate solicitation. The Court directs that the notice
to the class omit the proposed anti-retaliation language. The
Court

determines

that

it

is

nevertheless

appropriate

include anti-retaliation language in the notice.

5

to

The Court

directs that the following neutral statement be included:
“Federal law prohibits Defendant from firing you or in any way
discriminating against you because you have joined in this
lawsuit.

Therefore, Defendant is prohibited from discharging

you or retaliating against you in any other manner because you
choose to participate in this lawsuit.

Participating in the

lawsuit does not excuse current employees from complying with
Defendant’s
language

existing

was

Communications,

policies

utilized
LLC,

in

and

work

rules.”

Abdul-Rasheed

8:13-cv-879-T-24MAP,

v.
a

Similar
Kablelink

FLSA

action

currently pending in this division.
III. Dissemination of Class Notice
The parties agree that the notice should be furnished to
class members by first class mail. Plaintiffs submit that the
notice should also be furnished to the class via email and
that additional “reminder postcards” should be sent to the
class after the initial dissemination of class notice.

After

due consideration, the Court determines that it is appropriate
to send notice to the class via first class mail as well as
via email.

A number of courts have determined that email is

an inexpensive and appropriate means of delivering notice of
an action to a class. See e.g. Stuven v. Texas De Brazil
(Tampa) Corp., No. 8:12-cv-1283-T-24TGW, 2013 U.S. Dist. LEXIS
6

22240, at *17 (M.D. Fla. Feb. 19, 2013)(approving notice to
FLSA class via email); Cooper v. E. Coast Assemblers, Inc.,
No. 12-cv-80995-MARRA, 2013 U.S. Dist. LEXIS 10435, at *11
(S.D. Fla. Jan. 25, 2013)(“Plaintiff’s counsel may email the
Notice in addition to its mailing.”); Phelps v. MC Commc’ns,
Inc., No. 2:11-cv-423, 2011 U.S. Dist. LEXIS 84428, at *17 (D.
Nev. Aug. 1, 2011)(“The Court will permit Plaintiffs to email
the notice to those employees for whom Defendants have email
addresses, as well as send it by first class mail.

Email is

an efficient, reasonable, and low cost supplemental form of
notice,
physical

particularly
mailing

where

address

Defendants
information

may
for

lack
its

current
former

employees.”).
However, the Court determines that it is not necessary to
send any class members “reminder post cards.” Sending a
putative class member notice of this action is informative;
sending them a “reminder” is redundant. See e.g. Rojas v.
Garda CL Southeast, Inc., No. 13-cv-23173, 2013 U.S. Dist.
LEXIS 179595, at *34-35 (S.D. Fla. Dec. 23, 2013)(“a reminder
notice is unnecessary and potentially could be interpreted as
encouragement by the Court to join the lawsuit.”); Robinson v.
Ryla Teleservices, Inc., No. 11-cv-131, 2011 U.S. Dist. LEXIS
147027, at *21 (S.D. Ala. Dec. 21, 2011)(finding a reminder
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