Palma et al v. Metro PCS Wireless, Inc.

Filing 143

ORDER: Defendant's Motion to Approve Consent Form 139 is GRANTED IN PART AND DENIED IN PART. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/18/2014. (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

Defendant’s Motion to Approve Consent Form (Doc. # 139), which
was filed on February 6, 2014. Plaintiffs filed a Response in
Opposition to the Motion on February 10, 2014. (Doc. # 140).
For the reasons that follow, the Court grants the Motion in
part and denies the Motion in part.
I.

Background
Plaintiffs

Service

Karen

Palma

Representatives

and

Hallie

currently

Selgert,

employed

by

Account

Defendant

MetroPCS Wireless, Inc. filed a Fair Labor Standards Act, 29
U.S.C. § 216(b) (“FLSA”) action for unpaid overtime wages
against MetroPCS on March 18, 2013.

(Doc. # 1).

Thereafter,

on May 14, 2013, Plaintiffs filed an Amended Complaint. (Doc.
#

31).

The

Amended

Complaint

is

styled

as

a

putative

collective action, and several individuals have executed
Consent Forms indicating their consent to join in the action

against

MetroPCS.

In

particular,

the

following

Account

Service Representatives, in addition to Palma and Selgert,
have opted into the litigation by executing Consent Forms:
Linda Prevalon on March 21, 2013 (Doc. # 7); Hector Casta on
March 29, 2013 (Doc. # 8); Lisa Hobday on April 1, 2013 (Doc.
# 9); Eduardo Villar on April 2, 2013 (Doc. # 10); Christopher
Smith on April 11, 2013 (Doc. # 16); Aixa Reynolds on April
22, 2013 (Doc. # 20); Gerald Jusino on June 18, 2013 (Doc. #
59); Yvonne Pacheo on July 3, 2013 (Doc. # 69); and Ann Bush
on November 12, 2013 (Doc. # 116).
Each Consent Form mentioned above contains identical
language, which follows:
•
•

•

•
•

I consent to join the above styled lawsuit
seeking damages for unpaid wages under the
FLSA;
I am similarly situated to the named
Plaintiffs in this matter because I performed
similar duties for the Defendant[] and was
paid in the same regard as the named
Plaintiffs;
I authorize the named Plaintiffs to file and
prosecute the above referenced matter in my
name, and on my behalf, and designate the
named Plaintiffs to make decisions on my
behalf concerning the litigation, including
negotiating a resolution of my claims, and
understand I will be bound b[y] such
decisions;
I agree to be represented by Morgan and
Morgan, counsel for the named Plaintiffs;
In the event this action gets conditionally
certified and then decertified, or for any
reason does not proceed as a collective
2

action, I authorize Plaintiffs’ counsel to
reuse this Consent Form to re-file my claims
in a separate or related action against
Defendant[].
(Id.).1
In consideration of the executed Consent Forms and other
matters, on December 16, 2013, the Court granted Plaintiffs’
Motion for Nationwide Conditional Certification. (Doc. # 125).
In granting conditional certification, the Court noted that
the parties disagreed regarding the proposed Class Notice, and
accordingly directed the parties to provide further briefing
on that issue by December 30, 2013. (Id.).

The parties

promptly filed their proposed forms of Class Notice, and on
January 22, 2014, the Court entered an Order analyzing the
parties’

positions,

approving

Plaintiffs’

proposed

Class

Notice with modification, and authorizing dissemination of
Class Notice by mail and email. (Doc. # 132).

Notably, at

that time, neither party raised the issue of the content of
the Consent Form.
II.

Consent Form
Although Plaintiffs have utilized their Consent Form from

1

The Court has altered the language of Plaintiffs’
Consent Form as indicated with the inclusion of brackets to
reflect that there is only one Defendant in this action and to
replace the word “be” with “by” to correct a typographical
error.
3

as early as March 21, 2013, Defendant, for the first time,
raises an objection to the content of the Form. Defendant has
prepared its own version of the Consent Form, which differs
substantially

from

Plaintiffs’

Consent

Form.

requests an Order approving its Consent Form.
Defendant

points

out

that

Plaintiffs

Defendant
In addition,

recently

proposed

disseminating a “Contact Information” sheet along with the
Notice

to

Defendant

the

Class

objects

to

and
the

Consent

Form.

dissemination

(Doc.
of

#

the

139-3).
“Contact

Information” sheet.
The

Court

determines

that

Defendant

has

waived

its

objection to the language contained in Plaintiffs’ Consent
Form.

That language has been consistently utilized for the

duration of this action.

In addition, the Consent Form does

not contain any language which appears to this Court to be
overreaching or otherwise inappropriate considering the nature
of the action and the posture of the proceedings.

Therefore,

the Court authorizes Plaintiffs’ continued use of its Consent
Form.
However, the Court does not authorize Plaintiffs to
disseminate the proposed “CONTACT INFORMATION” sheet in the
same packet as the Court-Authorized Notice to the Class.
Plaintiffs’ proposed “CONTACT INFORMATION” sheet directs the
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recipient to “PLEASE COMPLETE AND RETURN!” thereby suggesting
that

the

Court

requires

the

recipient

information requested in the Form.

to

provide

the

The Court notes that some

of the information requested in the “CONTACT INFORMATION”
sheet appears to be excessive and is not “contact information”
at all.

For instance, there is a request for the “Name and

Number of [a] secondary person we can contact you at” as well
as

the

inquiry:

“Do

you

have

any

documents

(paystubs,

timesheets, memos, emails) ____, if so, please forward a copy
to our office.” (Doc. # 139-3).
It may be appropriate for Morgan and Morgan to request
that

type

of

information

from

an

individual

once

such

individual has authorized Morgan and Morgan to represent them
in this matter. However, it is not appropriate for Morgan and
Morgan to include these intrusive questions and requests for
documentation in connection with the Court-Authorized Class
Notice, which is being sent to individuals who have not yet
decided

whether

they

plan

to

join

the

action.

Thus,

Plaintiffs are not permitted to include the proposed “CONTACT
INFORMATION” sheet in conjunction with the dissemination of
the Class Notice.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
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