Nicks et al v. Koch Meat Co., Inc. et al
Filing
156
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/18/2017:Mailed notice(kef, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JIMMY R. NICKS and JAMES EARL
PATRICK, individually and on behalf of all
persons similarly situated,
Plaintiffs,
v.
KOCH MEAT CO., INC., d/b/a KOCH FOODS,
KOCH FOODS OF MISSISSIPPI, LLC, and JET
POULTRY SERVICES, INC.,
Defendants.
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No. 16-cv-6446
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On December 22, 2016, Plaintiffs Jimmy R. Nicks (“Nicks”) and James Earl Patrick
(“Patrick”), individually and on behalf of all persons similarly situated, filed an Amended
Collective Class Action Complaint against Defendants Koch Foods, Inc. (“Koch Foods”), Koch
Meat Co., Inc. d/b/a Koch Poultry Co. (“Koch Meat”), Koch Foods of Mississippi (“Koch Foods
MS”), JET Poultry Services, Inc. (“JET”), and several other Koch subsidiaries operating in
Georgia, Alabama, and Tennessee (“AL-TN-GA Koch Defendants”), collectively “Defendants,”
seeking relief under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”).
(R. 99.) The Court denied Defendants’ motion to dismiss on May 15, 2017, and Plaintiffs have
now moved for conditional certification and authorization to facilitate notice pursuant to 29
U.S.C. § 216(b). (R. 136.)
For the following reasons, the Court grants Plaintiffs’ motion.
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PROCEDURAL HISTORY
Plaintiffs initially filed a collective action against Defendants on June 21, 2016 on behalf
of all individuals employed by Defendants as members of live-haul, chicken catching crews in
the United States. (R. 1, Compl. ¶ 14.) JET filed a motion to dismiss on August 3, 2016, and
Koch Foods MS filed a motion to dismiss on August 4, 2016. Both motions claimed the Court
should dismiss this case for lack of personal jurisdiction and alternatively, for improper venue.
On October 27, 2016, the Court denied Koch Foods MS’s motion to dismiss without prejudice
and granted Plaintiffs permission to conduct limited jurisdictional discovery related to the Koch
Defendants’ corporate structure, operations, and internal governance structure. (R. 82, Mem.
Op. and Order 4.) The Court reserved opinion on the Koch Defendants’ venue challenge under
28 U.S.C. 1391(b)(1) and granted limited venue discovery relating to (b)(2). (Id. 7.) In
compliance with the Court’s order, Plaintiffs ordered discovery on the Koch Defendants and
conducted relevant depositions.
On December 19, 2016, Plaintiffs and JET entered into a settlement agreement. (R. 101,
Ex. 1, Settlement Agreement with JET.) As part of the settlement, JET agreed that the Court
would retain jurisdiction with respect to the enforcement of the settlement terms and that JET
would “submit to the jurisdiction of the Court for purposes of interpreting, implementing, and
enforcing the settlement.” (Id. ¶ 14.) On January 11, 2017, the Court approved the settlement
and dismissed the claims against JET with prejudice. (R. 105.)
Based on the limited jurisdictional and venue discovery, Plaintiffs filed the First
Amended Complaint, in which Plaintiffs added certain Koch Defendants and modified their
allegations. (R. 9, Am. Compl.) The Koch Defendants subsequently filed a motion to dismiss,
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or alternatively transfer, and as noted above, the Court denied that motion. (R. 31, May 15, 2017
Order.)
BACKGROUND
In considering this motion, the Court presumes familiarity with the background of
this action as set forth in the May 15, 2017 Order and does not recite a detailed background
here. The Court will, however, provide a factual background as it pertains to Plaintiffs’
allegations that they and the other potential claimants are similarly situated.
Plaintiffs were “previously employed to catch and cage Koch’s chickens as member[s] of
a live-haul chicken catching crew[.]” (Am. Compl. ¶¶ 10-11.) According to Plaintiffs, Koch
Foods1 has a policy and practice of failing to pay overtime premiums and minimum wage to the
individuals, like Plaintiffs, who catch chickens at Koch’s subsidiary farms in Mississippi,
Alabama, Georgia, and Tennessee. (Id. ¶ 2.)
I.
Koch Corporate Structure
Plaintiffs allege that although the Koch Defendants have organized themselves as several
separately registered companies, these companies are unified in interest and ownership. (Id. ¶
14.) Koch Foods is the parent company of the Koch LLC subsidiaries, including Koch Meat and
the eight separate divisions, each of which is referred to as a “Complex,” that handle live
growing and processing of chickens for Koch in Mississippi, Alabama, Georgia, and Tennessee.
(Id. ¶¶ 15, 27.) Koch Meat, the original Koch entity that preceded the creation of Koch Foods,
1
Although Koch Foods is organized as several different entities, Plaintiffs have alleged that there is such
unity of interest and ownership among the different entities that they do not exist independently and are in
essence one entity. In its Order on Defendants’ motion to dismiss, the Court held that, at this stage,
Plaintiffs had sufficiently alleged alter ego allegations. Accordingly, the Court refers to all Defendants
collectively as “Defendants” or “the Koch Defendants” and refers to “Koch Foods” as the Koch corporate
parent entity for purposes of this motion.
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directly pays the officers, directors, and other employees of Koch Foods, as well as the managers
of the eight Complexes. (Id. ¶ 28.)
The eight Koch Complexes are each registered as limited liability companies (“LLCs”) in
the state in which they are located, with facilities in-state, but with a corporate headquarters in
Illinois. (Id. ¶¶ 29-50.)2 The Complexes are organized into an Eastern and Western Region, and
each Region has a Vice President (“VP”) who reports directly to the President and the Chief
Operating Officer of Koch Foods, both of whom are located at Koch’s Corporate Headquarters
in Illinois. (Id.) Plaintiffs allege that the finances of each Complex are “consolidated with the
ultimate goal of increasing the profitability of the entity at a whole.” (Id. ¶ 16.) Plaintiffs allege
that at each Complex there is a “Foods” entity that processes the chickens and a “Farms” entity
that grows the chickens, although the entities have the same management and reporting structure.
(Id. ¶ 18.) The Foods entities pay all employees at a given Complex, regardless of whether the
employee works in the grow-out operation or the chicken processing operation. (Id.)
Each Complex has a Complex Manager, who oversees the live production and processing
operations at that Complex. (Id. ¶ 73.) The Complex Managers report to the corresponding
Eastern or Western Region VPs, who are responsible for managing the Complexes’ operations,
including reducing the Complexes’ labor costs when possible. (Id. ¶¶ 73-74.) The Region VPs
are Koch Foods employees who oversee multiple Koch subsidiaries. (Id. ¶ 74.) Plaintiffs allege
that the Complex employees must abide by the directives of the Region VPs. (Id. ¶ 75.) Koch
Foods, for example, holds weekly conference calls, led by Koch Foods Cost Controller, Wayne
Brantley, in which each Complex provides operational reports to the COO and the Region VPs.
2
There are Koch Complexes in Alabama (Montgomery, Gadsden, Collinsville, and Ashland), Mississippi
(Morton), Tennessee (Chattanooga and Morristown), and Georgia (Pine Mountain Valley). (Id. ¶¶ 14, 3249.)
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(Id.) Each Complex also has a Controller, who is responsible for maintaining the books and
records for the Complex and reporting the financial results to Koch Foods CFO Lance Buckert
(“Buckert”) at the end of every month. (Id. ¶ 76.) The Koch Defendants also share key
managerial employees, such as Cost Controller, Director of Purchasing, and Senior Director
Quality Assurance. (Id. ¶ 77.)
II.
Koch Chicken Catching Operations
Koch Foods produces poultry products for human consumption worldwide and thus
requires large quantities of chickens for its processing operations. (Id. ¶ 63.) Koch Foods
hatches chicken in Koch-owned hatcheries and ships them to poultry growers. (Id. ¶ 65.) Koch
chickens are all raised “cage free,” and Koch Foods only retrieves the chickens for processing
once they reach a marketable age and size. (Id. ¶ 69.) Plaintiffs allege that Koch Foods, through
each of the Koch Complexes, employs crews of chicken-catchers like Plaintiffs who operate in
substantially the same manner, regardless of the Complex at which they work. (Id. ¶¶ 87, 90.)
According to Plaintiffs, the live-haul catching crews are critical to the Koch Defendants’ chicken
processing business and allow it to produce large-scale poultry products for interstate
distribution. (Id. ¶ 88.) Each live-haul crew consists of eight to twelve chicken-catchers, one or
two forklift operators, and a crew leader. (Id. ¶ 89.)
Plaintiffs allege that prior to 2012, the Koch Defendants used a combination of direct
employee chicken catching crews and crews provided by third party staffing companies, but the
services provided by both types of crews was identical. (Id. ¶¶ 92-93.) In the 2012 to 2013 time
period, the Koch Defendants began exclusively using third party contractors to staff its live-haul
crews because they were having difficulty maintaining a labor force to serve on the chicken
catching crews. (Id. ¶¶ 55, 94.) Koch Foods COO Mark Kaminsky and the Region VPs
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approved this decision. (Id. ¶ 95.) Koch Foods has engaged 11 contractors, but there is
significant overlap in the ownership of many of those contractors,3 and all the contractors
provide substantially similar services regardless of the Complex with whom they are contracting.
(R. 138, Ex. A, Keyes Dep. 163: 24 – 164: 10.) Plaintiffs claim that Koch Foods, through the
subsidiary Complexes, pays the third party contractors, including JET,4 based on the number of
chickens caught, and the third party contractors in turn pay the members of the chicken catching
crews. (Am. Compl. ¶¶ 56, 100-02; R. 138, Exs. L-V, Contractor Agreements.) Plaintiffs
further allege that Koch Foods does not pay the third party contractors enough for them to pay
their employees minimum wage and overtime pay and still operate profitably. (Id. ¶ 103.)
Plaintiffs allege that although the Koch Defendants use third party staffing contractors for
their live-haul crews, the contractors and Koch are joint employers of Plaintiffs and other
members of the crews. (Id. ¶ 104.) Plaintiffs claim that the Koch Defendants maintain
operational control over the day-to-day functions of Plaintiffs and every aspect of the chicken
catching operation. (Id. ¶¶ 105, 108.) Plaintiffs travel to Koch Foods’ farms to capture the
chickens and they place them in Koch cages for transport to Koch Foods’ processing plants at
each of the Koch Complexes. (Id. ¶ 106.) Plaintiffs allege that JET and the other third party
staffing companies merely provide the “human labor,” but the equipment and materials they use,
as well as the chickens they catch, belong to Koch. (Id. ¶¶ 109-10.) The staffing companies
3
6 of the 11 contractors have similar owners and/or representatives. (R. 138, Ex. I, Omnibus Resp.,
Interrog. No. 1; Ex. W, Defs.’ Initial Disclosures 6, 13, 25.) For example, Richard Armstreet owns Jet
Poultry (contractor for Mississippi Complex) and Legroad, Inc. (contractor for Montgomery Complex)
and Eugene Byrum is the owner and/or representative of Byrum & Byrum Poultry (contractor for
Chattanooga Complex) and Trade Poultry Contractors (contractor for Gadsden Complex).
4
JET is one of the Koch’s third party contractors, and the Court approved a settlement between JET and
Plaintiffs on January 11, 2017. (R. 104, Order Approving Settlement.) Plaintiffs allege JET submits
weekly invoices to the Koch subsidiary at each Complex it services, and then Koch Farms of Mississippi
issues payments to JET from its bank account in Illinois. (Am. Compl. ¶ 58.)
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transport the crew members from their homes to the Koch farms, and after the shift is complete,
the companies drop off the crew members at their homes. (Id. ¶ 113.) The pick-up and drop-off
process can take up to two hours each way, and the Koch Defendants set the work locations and
shift durations. (Id.) Plaintiffs allege that each contractor has a similar agreement with Koch to
catch and load chickens pursuant to scheduled Koch provides. (Id. ¶ 109; Keyes Dep. 165: 1-7;
Contractor Agreements.)
According to Plaintiffs, the Koch Defendants also largely control the rate and method of
payment to Plaintiffs at each of the Complexes by paying the staffing companies on a piece rate
basis with such thin margins that it is impossible for the companies to pay overtime and
minimum wage. (Id. ¶ 114.) The Koch Defendants maintain the chicken catching records upon
which they base their payments to the staffing companies, and the Koch Defendants determine
the work schedules and conditions of Plaintiffs’ employment. (Id. ¶¶ 115-16; Keyes Dep. 120:
12-21, 108: 4-15; R. 138 Berman Dep. 6: 10 – 7: 4.) The Live Haul Operations Manager at each
Complex supervises the work of the live-haul crews and dictates their daily schedules and
working conditions as well as the number of chickens they need to catch. (Am. Compl. ¶ 117;
Keyes Dep. 106: 22 – 107: 10.) Koch employees also set the growing and catching requirements
as directed by Koch Foods in Illinois. (Am. Compl. ¶ 118.) Specifically, Koch Foods dictates
the times at which chickens are put in cages and how many chickens are put in cages based on
specific factors related to Koch Foods’ processing plants that Koch Foods’ employees monitor.
(Id. ¶¶ 119-20; Keys Dep. 108: 4-15.) The Koch Complexes also employ an internal auditor and
an independent auditor who visit the work sites to ensure that the live-haul crews are adhering to
Koch’s directives and if there are any aberrations, the Quality Control department at Koch Foods
or the Koch Complex notifies the staffing companies that the crews must follow Koch’s
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directives. (Am. Compl. ¶¶ 122-23.) The Koch Complexes also employ Live Haul Supervisors
on-site who oversee the catching practices and ensure that the live-haul crews are following
Koch’s directives. (Id. ¶ 124.) Both the Koch Defendants and the third party staffing companies
retain the right to hire and terminate live-haul crew members. (Id. ¶ 125.)
Plaintiffs allege that regardless of the Complex or state, the live-haul crews’ work is
uniform. (Id. ¶ 126.) According to one Koch Live Production Manager, “there is only one way
to catch a chicken.” (Keyes Dep. 156: 11.) On a typical work day, vans pick up the crews at
their respective homes on a route that Koch Foods and the Koch Complexes determine based on
the availability of Koch’s processing plans. (Am. Compl. ¶ 113, 126.) The vans take the crew
members several miles away from their homes to farms where they spend the day catching
chickens. (Id.) Their work requires no specialized training, is unskilled, repetitive work, and
does not involve raising poultry. (Id. ¶¶ 127-28.) Live-haul crews typically work ten to twelve
hours per day, five to six days per week, catching tens of thousands of chickens each day. (Id. ¶¶
129-30.) Once they place the chickens in the cages, the crew forklift operator moves the cages
onto trucks owned by the Koch Defendants for transport to the processing plant at a Koch
Complex. (Id. ¶ 131; R. 138, Ex. C, Mitchell Decl. ¶ 5; Ex. D. Burkes Decl. ¶ 7.) The Koch
Defendants own the forklifts and cages used by the crews and they also own the chickens, the
chicken feed, and the trucks used to distribute the chicken feed. (Am. Compl. ¶¶ 132-33;
Mitchell Decl. ¶ 5; Burkes Decl. ¶ 7.)
III.
Pay-Related Allegations
Plaintiffs allege that all crew members are non-exempt employees paid on a piece-rate
basis per 1,000 chickens caught. (Id. ¶ 134.) According to Plaintiffs, Defendants require crew
members to work hours in excess of 40 hours per week, but do not pay them overtime or
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compensate them for travel time or time spent waiting for the Koch Defendants’ machines to
become available. (Id. ¶¶ 136-37; Mitchell Decl. ¶¶ 7-8; Burkes Decl. ¶¶ 7-8.) Plaintiffs
contend that Defendants do not properly record the number of hours worked by crew members,
and accordingly, do not pay crew members minimum wage or pay them overtime premium for
hours worked over 40 hours per work. (Am. Compl. ¶¶ 138-40; Mitchell Decl. ¶¶ 7-8; Burkes
Decl. ¶¶ 7-8.) The Koch Defendants have not advised the third party staffing companies that
they are obligated to pay overtime and minimum wage, and in fact, the Koch Defendants’
negotiated prices do not account for minimum wage or overtime costs. (Am. Compl. ¶¶ 145-46.)
As a result, Plaintiffs allege that Defendants have violated the FLSA provisions relating to
minimum wage and overtime pay. (Id. ¶¶ 167, 182.)
LEGAL STANDARD
I.
FLSA Collective Actions—29 U.S.C. § 216(b)
Pursuant to the FLSA, “employees are entitled to overtime pay (i.e., one and one-half
times the regular rate) for any hours worked in excess of forty hours per week, unless they come
within one of the various exemptions set forth in the Act.” Schaefer–LaRose v. Eli Lilly & Co.,
679 F.3d 560, 572 (7th Cir. 2012) (citing 29 U.S.C. §§ 207, 213). Section 216(b) of the FLSA
“gives employees the right to bring their FLSA claims through a ‘collective action’ on behalf of
themselves and other ‘similarly situated’ employees.” Alvarez v. City of Chi., 605 F.3d 445, 448
(7th Cir. 2010) (citing 29 U.S.C. § 216(b) (2006)); see Schaefer v. Walker Bros. Enterprises, 829
F.3d 551, 553 (7th Cir. 2016) (“Suits under the Fair Labor Standards Act cannot proceed as class
actions. Instead they are opt-in representative actions.”). District courts have broad discretion in
managing collective actions under the FLSA. Alvarez, 605 F.3d at 449.
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“The conditional approval process is a mechanism used by district courts to establish
whether potential plaintiffs in the FLSA collective action should be sent a notice of their
eligibility to participate and given the opportunity to opt in to the collective action.” Ervin v. OS
Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011). “Neither Congress nor the Seventh Circuit
has specified the procedure courts should use to decide FLSA certification and notice issues, but
collective FLSA actions in this district generally proceed under a two-step process.” Grosscup v.
KPW Mgmt., Inc., No. 16 C 06501, 2017 WL 2461538, at *1 (N.D. Ill. June 7, 2017) (citations
and quotations omitted). This case is at step one, the conditional certification stage. The
purpose of conditional certification is to determine the size and contour of the group of
employees who may become collective members and whether these potential members are
“similarly situated.” See 7B Charles A. Wright et al., Federal Practice & Procedure § 1807; see
also Gomez v. PNC Bank, Nat’l. Assoc., 306 F.R.D. 156, 173 (N.D. Ill. 2014); Ervin, 632 F.3d at
974 (“[t]he conditional approval process is [ ] used by district courts to establish whether
potential plaintiffs . . . should be sent a notice of their eligibility to participate and given the
opportunity to opt in to the collective action.”).
At this first stage, the plaintiffs have the burden of showing that other potential claimants
are similarly situated by making a “modest factual showing sufficient to demonstrate that they
and potential plaintiffs together were victims of a common policy or plan that violated the law.”
Id.; Bergman v. Kindred Healthcare, Inc., 949 F. Supp. 2d 852, 855 (N.D. Ill. 2013) (requiring
“modest factual showing of common, unlawful conduct and provide some indication of harm to
employees.”). “Courts use a ‘lenient interpretation’ of the term ‘similarly situated’ in deciding
whether plaintiffs meet this burden.” Grosscup, WL 2461538, at *1 (quoting Salmans v. Byron
Udell & Assocs., Inc., No. 12 C 3452, 2013 WL 707992, at *2 (N.D. Ill. Feb. 26, 2013)). To
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determine whether plaintiff has made the required modest factual showing, “plaintiffs must
provide some evidence in the form of affidavits, declarations, deposition testimony, or other
documents to support the allegations that other similarly situated employees were subjected to a
common policy that violated the law.” Pieksma v. Bridgeview Bank Mortg. Co., LLC, No. 15 C
7312, 2016 WL 7409909, at *1 (N.D. Ill. Dec. 22, 2016) (internal quotations omitted).
Conditional certification is not, however, automatic and to proceed as a collective action,
plaintiffs must “demonstrate similarity among the situations of each plaintiff beyond simply
claiming that the FLSA has been violated; an identifiable factual nexus that binds the plaintiffs
together as victims of a particular violation of the overtime laws generally must be present.”
Briggs v. PNC Fin. Servs. Grp., Inc., No. 15-CV-10447, 2016 WL 1043429, at *2 (N.D. Ill. Mar.
16, 2016) (citations omitted). If the plaintiffs are able to show that other potential plaintiffs are
similarly situated, courts may conditionally certify the case as a collective action and allow the
plaintiffs to send notice of the case to similarly situated employees who may then opt in as
plaintiffs. Grosscup, WL 2461538, at *1; Salmans, 2013 WL 707992, at *2.
At this initial stage, “[t]he court does not make merits determinations, weigh evidence,
determine credibility, or specifically consider opposing evidence presented by a defendant.”
Bergman, 949 F. Supp. 2d at 855-56 (citation omitted); see also Larsen v. Clearchoice Mobility,
Inc., No. 11 C 1701, 2011 WL 3047484, at *1 (N.D. Ill. July 25, 2011) (“[T]he court does not
resolve factual disputes or decide substantive issues going to the merits.”); Nehmelman v. Penn
Nat’l Gaming, Inc., 822 F. Supp. 2d 745, 751 (N.D. Ill. 2011) (“[T]he court does not consider the
merits of a plaintiff's claims, or witness credibility”).
The second step, which is not at issue here and occurs after the opt-in and discovery
process has been completed, is more stringent. Once the court has determined which employees
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will be part of the collective action, the court must reevaluate the conditional certification to
determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow
the matter to proceed to trial on a collective basis. Grosscup, WL 2461538, at *1; Nehmelman,
822 F. Supp. 2d at 751. “If the court finds insufficient similarities during the second step, it may
revoke conditional certification or divide the class into subclasses.” Grosscup, WL 2461538, at
*1 (quotations and citations omitted).
ANALYSIS
Here, Plaintiffs have moved for conditional certification and to facilitate notice to
potential plaintiffs. The Court first addresses Plaintiffs’ arguments for conditional certification
and then considers their proposed Notice of Collective Action Lawsuit and Opt-In Consent
Form. (R. 136, Ex. A, Notice of Collective Action Lawsuit; Ex. B, Opt-In Consent Form.)
I.
Conditional Certification
A. Applicable Standard
As an initial matter, Defendants, citing to case law outside this District and largely
outside this Circuit, argue that because the parties have already engaged in some discovery the
Court should apply a more stringent, intermediate standard of review to Plaintiff’s “similarly
situated” burden. Despite this argument, courts in this District generally apply the “modest
factual showing” standard to FLSA certification cases where the parties have engaged in some
discovery but have not engaged in explicit and substantial class discovery.
In Girolamo v. Cmty. Physical Therapy & Assocs., Ltd., No. 15 C 2361, 2016 WL
3693426, at *3 (N.D. Ill. July 12, 2016), for example, the defendants made an identical argument
to that made by Defendants here—that the court should analyze conditional certification under
the more stringent standards of the second step or at least receive intermediate scrutiny because
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the plaintiff had the opportunity to conduct some discovery before filing the motion for
conditional certification. The court rejected the defendants’ argument, noting that in cases where
courts applied intermediate scrutiny, the plaintiffs had already conducted discovery explicitly
focused on the “similarly situated” issue and the defendants had provided a list of potential
claimants to support that discovery effort. Id. In contrast, in Girolamo, the plaintiffs had only
deposed the defendants’ 30(b)(6) witness and one of their executives, and the defendants had
only deposed one potential plaintiff. Id. Notably, defendants had not produced a list of potential
claimants and the parties had not engaged in discovery with potential class members, so
substantial discovery was still required. Id. As a result, the court refused to apply a heightened
standard of review at the conditional certification stage of the case. Id. See also Hudson v.
Protech Sec. Grp., Inc., 237 F. Supp. 3d 797, 800 (N.D. Ill. 2017) (applying modest factual
showing standard where parties conducted initial discovery); Freeman v. Total Sec. Mgmt.Wisconsin, LLC, 2013 WL 4049542, at *4 (W.D. Wis. Aug. 9, 2013) (denying application of
intermediate scrutiny because plaintiff had only conducted discovery consisting of “deposing
two of defendants’ corporate representatives and some of defendants’ employee witnesses” and
noting that court would apply more rigorous review at close of discovery).
Here, the parties’ discovery thus far has primarily focused on jurisdictional and venue
issues in large part because the Court initially limited discovery to jurisdictional issues pending
the resolution of Defendants’ motion to dismiss. (See R. 46, Order Staying Discovery; R. 82,
Order Allowing Limited Jurisdictional Discovery.) Importantly, here, like in Girolamo,
Defendants have not produced a list of potential claimants, and the parties have not yet engaged
in discovery with the potential class members or in extensive discovery explicitly focused on the
“similarly situated” issue. See Babych v. Psychiatric Sols., Inc., No. 09 C 8000, 2011 WL
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5507374, at *3 (N.D. Ill. Nov. 9, 2011) (rejecting intermediate standard because “inquiry at the
conditional certification stage is necessarily limited by the lack of detailed information about the
other opt-in plaintiffs, and application of the stringent standard might prevent some plaintiffs
from pursuing their claims.”) This case thus stands in contrast to Bunyan v. Spectrum Brands,
Inc., 2008 WL 2959932, at *4 (S.D. Ill. July 31, 2008), the only case to which Defendants cited
in this Circuit, where the court utilized a heightened review standard because it had expressly
allowed “discovery on the issue of whether the plaintiffs are similarly situated” and the plaintiffs
had been given access to a “list of other . . . potential members of the proposed class.”
Accordingly, like the Girolamo court and several other courts in this District,5 here, since
discovery is not complete and the parties have not engaged in targeted discovery on the
conditional certification issue, the Court will apply the more lenient “modest factual showing”
standard in assessing whether Plaintiffs have demonstrated that they and the other proposed
claimants are similarly situated.
B. Conditional Certification
Plaintiffs argue that they have made a modest factual showing that they and the other
potential plaintiffs are similarly situated because they all work for Koch Foods through
independent contracting companies, they all perform similar chicken-catching work—scheduled
and planned by Koch employees—without receiving overtime pay, and all the contractors were
subject to the identical service agreements whereby Koch paid the contractors per 1,000 chickens
5
See, e.g., Sylvester v. Wintrust Fin. Corp., No. 12 C 01899, 2013 WL 5433593, at *3 (N.D. Ill. Sept. 30,
2013) (declining to use intermediate standard “given the conditional nature of this motion and the fact that
the parties have not completed discovery”); Betancourt v. Maxim Healthcare Servs., Inc., No. 10 C 4763,
2011 WL 1548964, at *13 (N.D. Ill. Apr. 21, 2011) (declining to apply intermediate standard because
“extent of discovery in this case is insufficient”); Molina v. First Line Solutions LLC, 566 F. Supp. 2d
770, 786 (N.D. Ill. 2007) (declining to skip first step where parties did not yet have all the information
that would be available to them once they knew who would opt in to the case).
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caught and the contractors passed those payments on to the chicken-catchers. Defendants
counter that the Court should deny Plaintiffs’ motion for conditional certification because (1)
Plaintiffs have not identified a common policy that violates the FLSA; (2) Plaintiffs and other
potential claimants were not similarly situated because they worked in different locations for
different third-party contractors and supervisors; and (3) procedural and fairness concerns dictate
that the Court should not grant certification. The Court addresses each of Defendants’ arguments
in turn.
a. Common Policy or Practice
Defendants first argue that Plaintiffs have failed to provide sufficient evidence that
Defendants have a common policy or practice that violates the FLSA. Specifically, Defendants
argue that Plaintiffs have failed to show that Defendants’ use of third-party contractors was a
scheme to avoid FLSA liability and they have failed to show that the potential claimants were
subjected to a vertical reporting structure in which they were required to work unpaid overtime.
Despite Defendants’ arguments, several courts in this District have conditionally certified a
collective action where multiple employees provided affidavits declaring that they consistently
worked overtime without being compensated, even if the plaintiffs did not identify a specific,
written policy requiring unpaid overtime work.
In Anyere v. Wells Fargo, Co., No. 09 C 2769, 2010 WL 1542180, at *2 (N.D. Ill. Apr.
12, 2010), for example, the plaintiffs submitted five affidavits from potential claimants in which
they indicated that they all were credit managers who were required to log only 40 hours a week
and were not compensated for additional time worked before or after their shifts. The defendant
claimed that the plaintiffs’ affidavits were insufficient evidence of a common policy or practice
extending beyond their individual supervisors. Id. The court explained that the plaintiffs were
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not arguing that the defendant had an explicit, written policy to deny overtime pay, but rather
that the defendant had an unwritten de facto policy of not paying overtime hours, which was
sufficient to warrant conditional certification. Id. at *3. The court noted that the defendants’
claim that the policy the plaintiffs were challenging was restricted to certain supervisors and
locations was undercut by the plaintiffs’ affidavits from multiple locations and regardless, was
better addressed at the second stage of the certification process after the parties had engaged in
more extensive discovery regarding the various locations. Id. Finally, the court explained that
arguments related to the plaintiffs in fact “being . . . paid for all overtime worked go to the merits
and [were] not appropriately considered at [the conditional certification] stage.” Id. See also
Pieksma, 2016 WL 7409909, at *5–6 (granting conditional certification where plaintiffs
submitted declarations from employees at multiple locations with multiple supervisors indicating
that they were not paid overtime despite working more than 40 hours per week); Madden v.
Corinthian Colleges, Inc., No. 08 C 6623, 2009 WL 4757269 (N.D. Ill. Dec. 8, 2009) (“Courts in
this district regularly allow Plaintiffs to pursue collective actions under the FLSA where they
allege that an employer has an unwritten policy requiring its employees to perform
uncompensated work ‘off the clock.’”); Russell v. Illinois Bell Tel. Co., 575 F. Supp. 2d 930,
937–38 (N.D. Ill. 2008) (finding sufficient evidence of practice and policy violating the FLSA
where employees testified that supervisors were aware that they were working overtime without
compensation).
Similarly, courts have conditionally certified collectives against corporations, even if the
corporation used staffing agencies or subsidiaries to hire and pay workers, where the plaintiffs
provided evidence that the corporation had a policy or practice that caused workers to work
unpaid overtime. In Jackson v. Fed. Nat’l Mortg. Ass’n, 181 F. Supp. 3d 1044, 1048 (N.D. Ga.
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2016), for example, the plaintiffs sought conditional certification in an FLSA complaint against
Fannie Mae, arguing that credit underwriters who worked for Fannie Mae at various locations
worked unpaid overtime. Fannie Mae argued that plaintiffs had failed to show that Fannie Mae
itself had a policy or practice that caused the underwriters to work unpaid overtime because
independent staffing agencies directly employed the underwriters, and Fannie Mae argued those
independent agencies were “solely responsible” for calculating and paying the underwriters’
wages. Id. at 1059. The court rejected Fannie Mae’s argument, finding that Fannie Mae
managers directly supervised the underwriters’ work, and that although Fannie Mae did not itself
pay the underwriters, its policies and practices regarding production goals and payment dictated
the staffing agencies’ ability to pay the underwriters for overtime work. Id. at 1055. The court
explained that, given Fannie Mae’s oversight, the agencies’ “calculation and payment of wages
entailed little more than filling in the answer to a math equation that Fannie Mae wrote and
provided all the relevant variables for.” Id. at 1059. The court also noted that if there were
differences in the individual agencies’ handling of wage matters that, after discovery, were
material to the core practice of not paying overtime, Fannie Mae could move for decertification
at a later stage. Id. See also Lima v. Int’l Catastrophe Sols., Inc., 493 F. Supp. 2d 793, 800
(E.D. La. 2007) (allowing conditional certification because employees who worked for various
sub-contractors were similarly situated with respect to defendants’ pay provisions).
Here, Plaintiffs have provided sufficient evidence, at this preliminary stage, to make a
modest factual showing that Defendants had a common policy or practice that caused chickencatchers at their various Complexes to work unpaid overtime. Like the plaintiffs in Anyere and
Pieksma, Plaintiffs here have submitted multiple declarations from workers who worked at
multiple locations in which they averred that they were regularly required to work more than 40
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hours per week without being paid overtime. As the courts in those cases found, Plaintiffs need
not identify a specific, written policy requiring them to work overtime. It is sufficient that they
have provided multiple declarations indicating that Defendants had a de facto practice at more
than one Complex of not paying for overtime hours.
Additionally, as in Jackson, here, while Defendants did not pay Plaintiffs directly,
Plaintiffs have provided sufficient evidence that Defendants’ policies and practices with regard
to the chicken-harvesting schedules and locations, as well as their piece-rate payment scheme,
dictated the third-party contractors’ abilities to pay chicken-catchers for overtime work.
Specifically, Plaintiffs have produced specific evidence that Defendants set the daily chicken
catching schedules, determined when and how many chickens to put in each cage on each load,
and employed Live Haul Supervisors who oversee the transportation of the chickens from the
farm to the Defendants’ processing plant. (Defs. Answer ¶¶ 113, 119, 126; Keyes Dep. 194: 1121.) Plaintiffs’ evidence thus stands in contrast to the “generalized” evidence rejected by the
court in Black v. P.F. Chang’s China Bistro, Inc., No. 16-cv-3958, 2017 WL 2080408, at *10-11
(N.D. Ill. May 15, 2017)—the case upon which Defendants primarily rely. As the court stated in
Jackson, here, Plaintiffs have provided sufficient evidence, at this early stage, to show that
Defendants controlled the conditions under which the chicken-catchers worked and dictated the
independent contractors’ payments to the chicken-catchers, and as a result, the third-party
contractors’ “calculation and payment of wages entailed little more than filling in the answer to a
math equation that [Defendants] wrote and provided all the relevant variables for.” 181 F. Supp.
3d at 1059.6
6
Although the court in Jackson substantively analyzed the plaintiffs’ joint employer allegations, as
discussed more fully below, the joint employer issue is a merits issues that the Court will refrain from
substantively considering until after conditional certification and discovery. See Watson v. Jimmy John’s,
LLC, No. 15 C 6010, 2015 WL 8521293, at *3 (N.D. Ill. Nov. 30, 2015).
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Defendants’ arguments that Plaintiffs failed to show that Defendants decided to utilize
independent contractors to intentionally subvert the FLSA and that Defendants’ decision to pay
the third-party contractors on a piece-rate basis was not a per se violation of the FLSA are both
unavailing. First, Plaintiffs do not argue that Defendants’ decision to pay on a piece-rate basis
violates the FLSA. They argue, with the support of declarations from five employees and
deposition testimony from Defendants’ employees, that Defendants’ implementation of this
decision has caused the chicken-catchers to work unpaid overtime, which is a violation of the
FLSA. Second, the Court need not at this stage determine whether Defendants used the
independent contractors to avoid FLSA liability. At the conditional certification stage, it is
sufficient that Plaintiffs have shown that Defendants and the independent contractors had a de
facto policy and practice of not paying the chicken-catchers for overtime work. See Madden,
WL 4757269 at *2. Whether Defendants engaged third-party contractors in an intentional
scheme to subvert the FLSA is a merits issue not properly addressed at this stage of the
certification analysis. Bradford v. Logan's Roadhouse, Inc., 137 F. Supp. 3d 1064, 1076 (M.D.
Tenn. 2015) (“[A] court should not weigh the merits of the underlying claims in determining
whether potential opt-in plaintiffs may be similarly situated.”) (citation omitted); Nehmelman,
822 F. Supp. 2d 745, 758 (N.D. Ill. 2011) (refusing to consider merits issue underlying plaintiffs’
claims at conditional certification stage).
Accordingly, at this stage, Plaintiffs have provided sufficient evidence to make a modest
factual showing that Defendants had a common policy or practice that violated the FLSA.
b. Evidence That Putative Notice Recipients are Similarly Situated
Defendants also argue that Plaintiffs have provided insufficient evidence that they were
similarly situated to the other potential plaintiffs because the other potential plaintiffs worked at
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different Complexes for different independent contractors and had different supervisors. Courts
regularly find, however, that a potential class is similarly situated for purposes of conditional
certification, where, as here, the plaintiffs have provided multiple affidavits from workers from
multiple locations demonstrating that they perform similar duties.
In Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 848–49 (N.D. Ill. 2008), for example,
the court found that there was sufficient evidence that a collective of pharmaceutical
representatives that the defendant employed throughout the country were similarly situated to
warrant conditional certification of the class. The court reasoned that, despite minor variations in
their job duties and supervisors, the pharmaceutical representatives had the same essential
responsibility—calling on physicians and promoting the defendant’s products. Id. at 848. The
court emphasized that, to be similarly situated, the class members need not have identical
positions with identical titles, functions, or pay, they just needed to perform the same general
job. Id. at 849. See also Pieksma, No. 15 C 7312, 2016 WL 7409909, at *4 (N.D. Ill. Dec. 22,
2016) (finding that potential plaintiffs at nationwide offices were similarly situated at conditional
certification stage because they had similar job functions and compensation structure); Russell,
575 F. Supp. 2d at 937–38 (finding potential plaintiffs were similarly situated where they
provided affidavits indicating that they worked at different call centers with different supervisors
but all had primary responsibility of receiving calls and selling defendant’s equipment); Perry v.
Nat’l City Mtge., Inc., No. 05-891, 2007 WL 1810472, *3-4 (S.D. Ill. June 21, 2007)
(conditionally certifying class of 5,500 loan originators despite defendant’s argument that job
duties varied depending on their classification, because loan originators had the same “overall
mission”).
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Here, Plaintiffs have sufficiently demonstrated, at this preliminary certification stage, that
the chicken-catchers at the various Complexes perform similar job functions and have similar
duties such that they are similarly situated for purposes of the FLSA. Plaintiffs have provided
affidavits from five individuals who worked at Koch Complexes in both Alabama and
Mississippi as chicken-catchers. (Pl.’s Mot. for Conditional Certification, Ex.’s C-G.) In the
affidavits, the individuals declared that they performed functionally the same work at each
Complex—catching Koch chickens and loading them onto Koch cages for transport to Koch
processing plants. (Id.) As a Koch representative testified, “[t]here is only one way to catch a
chicken.” (Id., Ex. A, Keyes Dep. 156: 11; 165: 1-7.) Additionally, all the chicken-catchers
work for third-party contractors that provide “similar functions” for Defendants and have similar
service contracts with Defendants, whereby Defendants set the daily catch schedules and
determine “when and how many chickens to put in each cage on each load.” (Defs.’ Answer ¶¶
111, 119, 126.) These facts demonstrate, for purposes of conditional certification, that Plaintiffs
have provided sufficient evidence to make a modest factual showing that the potential class
members are similarly situated.
Defendants do not substantively dispute these facts, merely arguing broadly that the
potential class members work under “widely disparate circumstances” and have different
supervisors. (R. 145, Defs.’ Resp. to Pls.’ Mot. for Certification 8.) This argument is
unavailing. First, similarly situated class members can have different supervisors and work at
different locations as long as they have comparable work functions. See, e.g., Russell, 575 F.
Supp. 2d at 937–38 (N.D. Ill. 2008). Second, while here, Defendants provide no specific
evidence to counter Plaintiffs’ evidence of similarities between the potential class members’ job
functions, even if they had, courts typically delay consideration of “disparate factual and
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employment settings of individual class members” until “the second stage of [certification]
analysis.” Murton v. Measurecomp, LLC, No. 1:07CV3127, 2008 WL 5725631, at *4 (N.D.
Ohio June 9, 2008); see also Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 769–70 (N.D.
Ohio 2015) (finding that defendant’s arguments regarding disparate work conditions was “best
left for consideration at the decertification stage”).
Defendants also argue that the Court should not conditionally certify the proposed class
because different third-party contractors employed different potential class members, and the
Court cannot conduct the fact-intensive inquiry necessary to determine whether Defendants and
the contractors are joint employers at the certification stage. Given the factual issues involved,
however, the joint employer question is typically addressed at the decertification or summary
judgment stage. Watson v. Jimmy John’s, LLC, No. 15 C 6010, 2015 WL 8521293, at *3 (N.D.
Ill. Nov. 30, 2015) (explaining that the joint-employer issue is a merits issue that is best
addressed after conditional certification and class discovery to “shed light on whether the
policies plaintiff challenges are mandated by [the franchisor or franchisees].”); Reece v. United
Home Care of N. Atlanta, Inc., No. 1:12–CV–2070–RWS, 2013 WL 895088, at *5 (N.D. Ga.
Mar. 8, 2013) (citations omitted) (finding issues relating to liability as a joint employer “are
properly reserved for dispositive motions or for the second stage of the class certification
process”); McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 806 (S.D. Tex. 2010) (“In
instances where a motion for conditional certification involves a potential class of employees
that worked for separate, but related, employers, courts have reserved consideration of whether
the separate employers are joint employers for a final, stage two determination.”).
In sum, Plaintiffs have preliminarily demonstrated that the chicken-catchers at
Defendants’ various complexes performed similar duties under the immediate direction of
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similar independent contractors with Defendants’ ultimate oversight. This showing establishes,
at this stage, a colorable basis for their claim that a collective of similarly situated individuals
exists.
c. Procedural and Fairness Concerns
Defendants also argue, applying factors they concede are relevant only to the
intermediate standard of review, that certifying the proposed class of plaintiffs would result in
procedural unfairness and judicial inefficiencies because the class members as well as their
supervisors worked at different locations in different states, and requiring them all to attend one
trial in Chicago would be inefficient and costly. This argument is unavailing. First, as discussed
above, the intermediate standard of review is not applicable here, and as such, Plaintiffs only
need to make a moderate factual showing that the potential class members are similarly situated
and do not need to show that certification will result in judicial efficiency and procedural
fairness. Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012)
(noting that fairness and procedural concerns arise only at second stage of review). Second, even
if these factors were relevant at this stage, they would favor conditional certification of the class.
As discussed above, Plaintiffs have made the required moderate showing that the potential
claimants in this case performed similar jobs and were subject to similar working conditions and
Koch business practices, thus litigating their claims collectively is likely to produce judicial
efficiencies. While their individual claims are small in dollar value, allowing them to pursue
their FLSA claims as a class will ensure that they have the opportunity to assert their rights
through litigation and if their claims have validity, it will ensure that Defendants are forced to
take remedial action. Babych, 2011 WL 5507374, at *6 (noting the “remedial” purpose of the
FLSA) (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944).
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C. Scope of Conditional Certification
Defendants seek to limit notice to chicken-catchers who worked at the Mississippi
Complex arguing that no plaintiffs from other Complexes have opted in to this lawsuit and that
Plaintiffs have failed to present evidence that the failure to pay chicken-catchers overtime wages
was a company-wide practice. Despite Defendants’ arguments, several courts have found
plaintiffs’ evidence of a company-wide policy or practice, similar to Plaintiffs’ evidence here,
sufficient to warrant conditional certification of a class of employees at multiple locations.
In Rangel v. Compliance Staffing Agency, LLC, No. 3:16-CV-30 (CDL), 2016 WL
3769761, at *3 (M.D. Ga. July 12, 2016), for example, the court found that while only three
plaintiffs at one location had consented to join an FLSA action, the plaintiffs had provided
sufficient evidence, at the conditional certification stage, to show that the defendant had a
widespread practice of not paying overtime such that a collective class including workers at
several other locations was warranted. The court explained that “[g]eographical differences do
not necessarily doom a collective action, as long as the plaintiffs held similar positions and were
subjected to similar treatment by the same decision-makers.” Id. at *2. The court reasoned that
“given the number of potential workers who may not have been fully compensated, some would
likely seek to recover” compensation under the FLSA and they should “be given notice of their
rights.” Id. at *3; see also Girolamo, 2016 WL 3693426, at *5 (finding sufficient evidence of
widespread policy to warrant notice to employees at multiple facilities); Jackson, 181 F. Supp.
3d at 1059 (certifying class of employees who worked for multiple vendors because of evidence
that they were similarly situated and subject defendant’s common policy); Russell, 575 F. Supp.
2d at 937–38 (sending notice to multiple facilities because employees at each facility worked in
similar positions, had similar duties, and were subject to similar policies); Anyere, 2010 WL
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1542180, at *3 (finding sufficient factual nexus between employees at different locations to
warrant conditional certification).
Although discovery related to the Complexes in states besides Mississippi and
contractors besides JET has been limited, Plaintiffs have provided declarations from employees
who worked at Defendants’ Complexes in both Mississippi and Alabama, in which they averred
that at both locations, they were not paid for overtime work. (R. 138, Exs. C-E.) Plaintiffs have
also provided evidence that chicken-catchers at all Defendants’ complexes performed the same
duties, that Defendants paid contractors on a piece rate basis at all their Complexes, that
Defendants set the catching schedules at the Complexes and oversaw Plaintiffs’ work, and that
all the various contractors worked under similar service contracts with Defendants. (Keyes Dep.
106: 22 – 107: 10, 108: 4-15, 120: 12-21, 108: 4-15; Berman Dep. 6: 10 – 7: 4; R. 138, Exs. L-V,
Service Contracts.) Plaintiffs have also shown that although Defendants utilized multiple
contractors, there is substantial overlap in the ownership of the independent contractors at the
various Complexes and the contractors provide substantially similar services regardless of the
Complex with whom they are contracting (Keyes Dep. 163: 24 – 164: 10; Omnibus Resp.
Interrog. No. 1; Defs. Initial Disclosure 6, 13, 25.) Moreover, Plaintiffs recently submitted
additional declarations from new Opt-In plaintiffs who worked at Defendants’ Complexes in
Alabama, Tennessee, and Georgia and who performed the same duties at Plaintiffs and were not
paid for their overtime work. (See e,g., R. 151, Ex. AI Arellanos Decl. ¶¶ 4-5, 10, 14-15; Ex. AJ
F. Ortega Decl. ¶¶ 4-5, 10, 15.)
Here, like in Rangel and the other cases cited above, Plaintiffs have provided sufficient
evidence, through affidavits from chicken-catchers at multiple complexes in multiple states, that
Defendants had a widespread policy or practice of not paying chicken-catchers, who all
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performed the same duties, for overtime work at their various Complexes. To the extent
Defendants believe there are dissimilarities between the employees at the different Complexes
and policies or practices for the different contractors, those arguments are “more appropriately
decided at step two, after it is known who the class . . . will consist of, and after some of the
factual issues can be fleshed out in discovery.” Jirak, 566 F. Supp. 2d at 850 (“The mere
potential that individual issues may predominate after further discovery does not preclude
conditional certification of the class.”)
Accordingly, Plaintiffs may send notice to potential claimants at all Defendants’
Complexes.
II.
Notice and Opt-In Consent Form
Plaintiffs argue that the Court should allow Plaintiffs to issue notice to Crew Members
who worked at Koch facilities at any time three years prior to the filing of the FAC and have
submitted a proposed notice form and opt-in consent form. Plaintiffs have also requested (1) a
90-day opt-in period; (2) that the notice be provided by mail and email and posted at each farm
where potential claimants work; (3) that a duplicate copy of the notice be sent after 45 days; and
(4) that the notice be translated into Spanish. Defendants take issue with Plaintiffs’ proposed
notice form and with Plaintiffs’ requests. Defendants argue that Plaintiffs’ notice form appears
to come from the Court, unfairly favors Plaintiffs’ version of the facts in this case, fails to make
clear that potential claimants can opt out, and fails to state that there has been no final
certification. Defendants also argue that a 90-day opt-in period is too long, that notice by email
and by posting at the Complexes is unnecessary, that duplicate reminder notices are improper,
and that they are entitled to receive any Spanish translations of the notice forms.
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Given the disputes between the parties regarding Plaintiffs’ proposed notice and in light
of the Court’s detailed Opinion, in the interest of judicial efficiency, the parties shall meet and
confer regarding the content of the proposed notice. The parties shall file a joint proposed notice
form.
III.
Equitable Tolling
Plaintiffs also request that the Court equitably toll the running of statute of limitations as
to the individuals who potentially will opt in to this case, but have not yet done so. Equitable
tolling is a “rare remedy,” which should be granted only when claimants have exercised due
diligence in preserving their legal rights. See Wallace v. Kato, 549 U.S. 384, 396 (2007)
(equitable tolling is “a rare remedy to be applied in unusual circumstances”); Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990) (“Federal courts have typically extended equitable
[tolling] relief only sparingly.”); Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)
(“Equitable tolling is an extraordinary remedy and so is rarely granted.”) (internal quotation
omitted). Equitable tolling is warranted only when the party has diligently pursued his or her
rights and some extraordinary circumstance nevertheless prevented timely filing. Id. (citing
Holland v. Florida, 560 U.S. 631, 649 (2010); see also McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013).
Here, Plaintiffs have failed to show that equitable tolling is warranted because they have
failed to show that some extraordinary circumstance prevented the potential claimants from
filing a lawsuit against Defendants. Plaintiffs appear to request7 that the Court toll the running of
the statute of limitations from the date they filed their motion for conditional certification, June
20, 2017, or from the date the parties completed briefing, August 21, 2017, to the date the Court
7
In their motion and briefing, Plaintiffs do not explicitly request equitable tolling, but the parties argue
the issue as if they had, so the Court has ruled on the equitable tolling issue for the sake of clarity.
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ruled upon the motion, September 18, 2017—a period of less than three months or if from the
completion of briefing, a period of less than a month. Simply put, it is not extraordinary for a
court to take less than a month to address a fully briefed motion for conditional certification and
for the plaintiffs to delay notice while that motion is pending. See Sylvester v. Wintrust Fin.
Corp., No. 12 C 01899, 2014 WL 10416989, at *2–4 (N.D. Ill. Sept. 26, 2014) (denying
equitable tolling and explaining that “some period of time must be considered normal, rather than
extraordinary, for a court to address a conditional certification motion”); Garrison v. Conagra
Foods Packaged Food, LLC, 2013 WL 1247649, at *5 (E.D. Ark. Mar. 27, 2013) (“there is
nothing extraordinary about a motion for conditional certification and the delay in notice while
that motion is pending”). Here, Plaintiffs have not identified any extraordinary circumstance
delaying timely filing. Compare, e.g., Bergman, 949 F. Supp. 2d at 860 (delay of 2 years held to
be extraordinary) with Sylvester, WL 10416989, at *2–4 (delay of 6 months not extraordinary);
Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 363 (W.D. Wis. 2014) (delay of 7
months not extraordinary); Greenstein v. Meredith Corp., 2013 WL 4028732, at *1–2 (D. Kan.
Aug. 7, 2013) (11–month delay not extraordinary); Young v. Dollar Tree Stores, Inc., 2013 WL
1223613 (D. Colo. Mar. 25, 2013) (10–month delay; tolling not warranted).
Additionally, even if Plaintiffs had shown that the delay here was extraordinary, they
have also failed to establish that potential opt-in plaintiffs were prevented from joining the
lawsuit by that delay. As the court explained in Sylvester, “[n]o ruling by this Court was
necessary to permit the filing of another law suit or an opt-in notice in this suit; nothing
prevented any former employee of the defendants from either filing their own law suit or filing
an opt-in notice for this law suit before a ruling on the conditional certification motion was
issued.” WL 10416989, at *3. Here, Plaintiffs have not shown how the minimal delay prevented
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any potential opt-in claimants from diligently asserting their rights, and thus, they have not
shown that equitable tolling is warranted. See Sylvester, WL 10416989, at *3-4 (denying
equitable tolling because plaintiffs failed to show how the “absence of a conditional certification
ruling prevented other potential plaintiffs from asserting their rights”); Bitner, WL 3698850, at
*10 (delay in ruling did not prevent others from timely joining the law suit); Greenstein, WL
4028732, at *2 (rejecting equitable tolling, in part because the “opt-in plaintiffs have had the
same notice of their rights and obligations available to them as did the named plaintiff in this
case”).
Accordingly, Plaintiffs’ motion for equitable tolling of the statute of limitations based on
the delay necessary to rule on the conditional certification motion is denied.
CONCLUSION
For the foregoing reasons, the Court Plaintiffs’ motion for conditional certification and to
facilitate notice.
Dated: September 18, 2017
_________________________________
AMY J. ST. EVE
United States District Court Judge
29
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