Case v. Danos and Curole Marine Contractors, L.L.C.

Filing 46

ORDER & REASONS: granting 35 & 36 Motions for Conditional Certification of an FLSA Collective Action and for an Order Permitting Court-Supervised Notice of this Action to Potential Opt-In Plaintiffs as set forth in document; Instructions to Counsel & Deadlines as set forth in document. Signed by Judge Carl Barbier on 5/4/15. (Reference: both cases)(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CASE

CIVIL ACTION

VERSUS

NO: 14-2775
c/w 14-2976

DANOS AND CUROLE MARINE
CONTRACTORS, L.L.C.

SECTION: “J” (2)

ORDER & REASONS
Before the Court are Plaintiffs Jason Case (Case) and Lisa
Bragg (Bragg)’s Motions for Conditional Certification of an FLSA
Collective Action and for an Order Permitting Court-Supervised
Notice

of

this

Action

to

Potential

Opt-In

Plaintiffs

and

Incorporated Briefs (Rec. Docs. 35, 36), Defendant Danos and
Curole

Marine

Contractors,

LLC

(Danos)’s

oppositions

thereto

(Rec. Docs. 37, 38), and Plaintiffs’ replies. (Rec. Docs. 43,
45)

Based

on

the

motion

and

memoranda

of

the

parties,

the

record, and the applicable law, the motions should be GRANTED
for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This litigation comprises Plaintiffs’ claims against Danos
pursuant to the Fair Labor Standards Act (FLSA) regarding unpaid
overtime wages. (Rec. Doc. 1, p. 6-7) 1 Plaintiffs allege that,
following
provide
1

the

B.P.

various

oil

spill,

employees,

Danos

including

contracted
Vessel

with

B.P.

Inspectors

to
and

Unless otherwise indicated, the record cites contained within this order
pertain to case number 14-2775.

Safety Technicians, to assist with the clean-up efforts. (Rec.
Doc. 35-1, p. 5 & Rec. Doc. 36-1, p. 5) Plaintiffs Case and
Bragg assert that they assisted in these efforts as a salaried
and

non-exempt

Vessel

Inspector

and

Safety

Technician,

respectively. Id. Both plaintiffs allege that Danos failed to
pay them and other similarly situated individuals the proper
overtime wages, as required by the FLSA. Id. Plaintiffs allege
that these groups of workers, the Vessel Inspectors and Safety
Technicians, were working far in excess of forty hours per week,
and

that

Danos

compensation.
wages,

an

unlawfully

Id.

As

additional

a

deprived

result,
equal

them

of

Plaintiffs

amount

as

proper
seek

overtime

unpaid

liquidated

back

damages,

declaratory relief, and reasonable attorney’s fees and costs.
(Rec. Doc. 1, p. 2)
Case filed his Complaint on behalf of himself and other
Vessel

Inspector

employees

and

former

employees

similarly

situated on December 8, 2014. (Rec. Doc. 1, p.1) Thereafter,
Bragg filed her Complaint on behalf of herself and other Safety
Technician employees and former employees similarly situated on
December 30, 2014. (No. 14-02976, Rec. Doc. 1, p.1) The Court
consolidated the matters on January 13, 2015. (Rec. Doc. 9, p.
1) Both Plaintiffs subsequently filed Motions to Certify Class,
which this Court denied as premature on February 25, 2015. (Rec.
Doc.

26)

Plaintiffs

then

filed

2

the

instant

motions

seeking

conditional

certification

authorization,

under

of

court

the

collective

supervision,

for

actions
notice

and

to

all

similarly situated employees who were employed by Danos. (Rec.
Doc. 35, p. 1-2; Rec. Doc. 36, p. 1-2) Specifically, Plaintiffs
request

Court

authorization

for:

(1)

Defendant

to

provide

Plaintiffs with a list of all similarly situated hourly paid
Vessel Inspectors and Safety Technicians within the last three
years; (2) to send the proposed “Notification” letter to all
similarly situated employees nationwide; and (3) to send the
proposed

“Notice

of

Consent

to

Join”

form,

which

similarly

situated employees can complete, sign, and file with the Court.
(Rec. Doc. 35-1, p. 19; Rec. Doc. 36-1, p. 19)
PARTIES’ ARGUMENTS
Plaintiffs

ask

the

Court

to

conditionally

certify

this

collective action and authorize, under court supervision, notice
to all similarly situated employees whom Danos employed. (Rec.
Docs.

35,

36)

Specifically,

the

putative

class,

to

which

plaintiffs seek to facilitate notice, consists of individuals
who:
(a) Were day-rate [or salaried] Vessel Inspector [or
Safety Technician] employees at any time during the
last three years; and
(b) Were
subjected
to
Defendant’s
illegal
pay
practice of failing to pay full and proper time and
one half overtime compensation for all hours worked
in excess of forty in a workweek. 2
2

Plaintiff Case seeks to certify a class of Vessel Inspectors in No. 14-2775,
whereas Plaintiff Bragg seeks to certify a class of Safety Technicians in No.

3

In their motions, Plaintiffs largely make the same arguments
with regards to their respective classes. They allege that there
are common questions of law and fact that predominate over any
questions

that

affect

each

employee

individually.

Plaintiffs

therefore seek the Court’s authorization to facilitate notice to
each of the employees who worked as Safety Technicians or Vessel
Inspectors for Danos within the last three years.
Plaintiffs argue that FLSA, 29 U.S.C. § 216(b), collective
actions operate differently from a typical class action suit
under

Rule

Plaintiffs

23

of

argue

the
that

Federal
under

Rules

Section

of

Civil

216(b),

an

Procedure.
employee

belonging to a similarly situated class of plaintiffs must “optin” to the class action by filing written consent with the Court
in order to be bound by the outcome of the case. Furthermore,
they assert that trial courts have discretionary power to manage
the process of joining multiple parties in an orderly manner,
and the court’s involvement in this notice process is inevitable
in

cases

where

a

statute

requires

the

written

consent

of

a

plaintiff to join an action. Plaintiffs further argue that this
Court

has

previously

endorsed

a

two-tiered

approach

to

certification of an opt-in class pursuant to Section 216(b),
whereby the court makes an initial determination, based upon the
14-2976. For brevity’s sake, the Court combines the descriptions of the
putative classes here, which are identical but for the job titles and use of
the words “day-rate” versus “salaried.”

4

pleadings and any declarations, of whether notice of the action
should

be

minimal

given

level

to

of

potential

evidence

class

at

this

members.
stage,

Because

the

of

the

determination

typically results in a conditional certification, and putative
members are provided notice and opportunity to join the action.
Thereafter, the case will then proceed as a collective action
through discovery. Here, Plaintiffs assert that the Declarations
and

allegations

within

the

Complaints

have

allowed

each

Plaintiff to exceed their burden to facilitate notice.
Further, Plaintiffs allege that this is not a case of first
impression, and many courts have conditionally certified classes
where the allegations were nearly identical those of the instant
case.

In

addition,

Plaintiffs

stress

that

the

merits

of

the

claims are not considered at this stage when determining whether
or not to grant notice. Similarly, Plaintiffs argue that courts
do not consider discovery during the conditional certification
stage,

because

it

is

unnecessary

for

the

similarly

situated

determination.
Next, Plaintiffs argue that their proposed judicial notice
is “timely, accurate, and informative” and should be adopted by
the Court. Additionally, they request that they be able to email
the class notice to all potential members within the defined
classes in addition to mailing the same via first-class mail.
Furthermore,

Plaintiffs

assert

5

that

a

reminder

notice

is

appropriate, which should be sent at the half-way point in the
Notice Period. Plaintiffs argue that notice within the threeyear statute of limitations is appropriate in this case because
the FLSA allows plaintiffs to collect damages within a threeyear

statute

defendant’s

of

limitations

violation

of

if

the

they

can

FLSA

show

was

that

the

“willful.”

The

determination of whether Danos’s alleged violations of the FLSA
were willful is an issue that deals with the merits of the case,
which

the

Court

should

not

consider

until

after

discovery.

Finally, Plaintiffs argue that the Court should order Defendants
to provide contact information for the class members in order to
carry

out

notice,

including

a

list

of

all

putative

class

members’ names, addresses, phone numbers, email addresses, and
the last four digits of class members’ social security numbers.
In opposition, Defendant argues that the Court should deny
Plaintiffs’

motions

for

conditional

certification,

because

Plaintiffs have failed to sustain their burden of proving that
they are similarly situated to other members of the purported
class.

(Rec.

Docs.

37,

38)

Defendant

argues

that

the

only

similarity Plaintiffs have shown is that each of the proposed
classes

comprises

employees

with

the

same

title

who

did

not

receive overtime compensation, which is insufficient to support
conditional certification. Defendant insists that an employer’s
decision

to

classify

a

group

6

of

employees

as

exempt

is

insufficient

to

show

that

those

employees

are

similarly

situated. Rather, determining whether employees are exempt under
the

FLSA

among

is

those

a

fact-intensive

of

the

inquiry.

purported

class

Here,

the

differences

predominate

over

the

similarities. Members of the purported class worked at different
locations

in

different

states

and

under

various

supervisors.

Thus, Defendants argue that the matters are not appropriate for
conditional certification. (Rec. Doc. 37, pp. 6-8; Rec. Doc. 38,
pp. 6-8)
Defendants further argue that, if the Court conditionally
certifies the classes, the notice that Plaintiffs propose is
“improper and must be reformed.” (Rec. Doc. 37, p. 8; Rec. Doc.
38, p. 8) First, Defendants argue that the three-year statute of
limitations period should be calculated from the date of the
notice,

rather

than

the

date

of

the

complaint,

because

the

claims will not date back to the complaint. Second, Defendants
contend that the proposed notice “does not accurately advise the
potential plaintiffs regarding the legal effects of joining the
lawsuit.” (Rec. Doc. 37, p. 9; Rec. Doc. 38, p. 9) The notice
does

not

clarify

that

those

who

opt

in

will

be

able

to

participate in the litigation only to the extent that the Court
finds that they are similarly situated to Plaintiffs. Defendant
suggests

including

the

following

language

to

clarify

this

ambiguity: “If you choose to join the lawsuit, your continued

7

right

to

participate

in

the

lawsuit

may

depend

on

a

later

decision by the court that you and the Plaintiffs are ‘similarly
situated’ employees in accordance with federal law.” (Rec. Doc.
37, p. 9; Rec. Doc. 38, pp. 9-10) Third, Defendant asks the
Court to set a forty-five-day opt-in period. Fourth, Defendant
argues that it would be an improper “judicial encouragement to
participate

in

the

collective

action”

to

permit

a

reminder

notice to the putative class halfway through the opt-in period.
(Rec. Doc. 37, p. 10; Rec. Doc. 38, p. 11) Fifth, Defendants
assert

that

the

arrangement

to

proposed
which

notice

class

does

members

not

will

disclose
have

fee

agree

to

the

to

participate in the suit. Additionally, it fails to disclose that
class members’ potential obligation to pay Defendant’s costs and
expenses

in

the

event

Defendant

prevails.

Sixth,

Defendant

argues that the proposed anti-retaliation provision constitutes
inappropriate
adopt

the

solicitation.

following

Defendant

language

in

suggests

its

that

place:

the

Court

“Federal

law

prohibits Defendant from firing you or in any way discriminating
against you because you have joined in this lawsuit. Therefore,
Defendant
against

is
you

prohibited
in

any

from

other

discharging
manner

you

because

or
you

retaliating
choose

to

participate in this lawsuit. Participating in this lawsuit does
not

excuse

current

employees

from

complying

with

Defendant’s

existing policies and work rules.” (Rec. Doc. 37, p. 13; Rec.

8

Doc. 38, pp. 12-13) Seventh, Defendant argues that notice by
first-class

mail

is

sufficient

and,

therefore,

production

of

telephone numbers, email addresses, and partial social security
numbers is inappropriate. Finally, Defendant asserts that the
reference

to

the

Buccaneers

minimum

wage

litigation

is

inapplicable and should be removed.
In reply, Plaintiffs argue that they have met their burden
for

conditional

certification,

and

that

Defendant’s

proposed

modifications to the notice are unnecessary and inappropriate.
(Rec. Docs. 43, 45) Plaintiffs argue that they have shown that
the proposed classes would include employees who were paid
the

same

fashion,

performed

similar

duties

to

one

in

another,

worked overtime, and were not paid overtime. (Rec. Doc. 43, p.
2; Rec. Doc. 45, p. 2) Next, Plaintiffs argue that the Court
should reject Defendant’s proposed changes to the notice and
reminder. First, Plaintiffs argue that the three-year period for
notice should be calculated from the date of the complaint, with
the

understanding

that

Defendant

may

challenge

some

of

the

individual plaintiffs’ actions as untimely. Second, Plaintiffs
argue that the language Defendant seeks to have the Court add to
the

notice

certification

regarding
is

the

confusing

conditional
and

nature

unnecessary.

of

Third,

the

class

Plaintiffs

seek a ninety-day opt-in period because potential plaintiffs are
scattered across a broad geographical region and often travel

9

for work assignments.

Fourth, Plaintiffs argue that the Court

should permit a reminder, because reminders are not unusual and
serve

the

remedial

purpose

of

the

FLSA.

Fifth,

Plaintiffs

contend that courts have repeatedly rejected the inclusion of
language regarding class members’ potential liability for costs,
and that this Court should do so as well. Lastly, Plaintiffs
insist

that

the

production

of

telephone

numbers

and

email

addresses is necessary for the effectuation of notice.
LEGAL STANDARD
Section 207 of the FLSA provides the mandatory parameters
for overtime pay. 29 U.S.C. § 207. Section 216(b) of the FLSA
affords

workers

a

right

of

action

for

violations

of

these

parameters. Id. § 216(b). Such workers may sue individually or
collectively

on

behalf

of

“themselves

and

other

employees

similarly situated.” Id. To participate in a collective action,
each employee must “give[] his consent in writing” by notifying
the court of his intent to opt in. Id. “District courts are
provided with discretionary power to implement the collective
action

procedure

through

the

sending

of

notice

to

potential

plaintiffs.” Lima v. Int’l Catastrophe Solutions, Inc., 493 F.
Supp. 2d 793, 797 (E.D. La. 2007)(Fallon, J.). The notice must
be “timely, accurate and informative.” Id. (citing Hoffman-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).

10

Before

disseminating

notice

to

potential

plaintiffs,

a

court must determine that they are “similarly situated.” Basco
v. Wal-Mart Stores, Inc., No. Civ.A.00-3184, 2004 WL 1497709, at
*3 (E.D. La. July 2, 2004)(Duval, J.). Courts typically follow
one of two approaches in certifying a class: the Lusardi or the
Shushan approach. 3 Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213-14 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). Although the U.S.
Court of Appeals for the Fifth Circuit has not adopted one test
over the other, district courts commonly employ the approach of
Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J. 1988). Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 518-19 n.1 (5th
Cir. 2010)(“[W]e have not adopted any of the varying approaches
for

determining

whether

employees’

claims

are

sufficiently

similar to support maintenance of a representative action.”);
Lima, 493 F. Supp. 2d at 797. The Lusardi test comprises two
stages.

Acevedo,

600

F.3d

at

519;

Mooney,

54

F.3d

at

1213.

First, during the “notice stage,” the court conducts an initial
inquiry

of

“whether

the

putative

class

members’

claims

are

sufficiently similar to merit sending notice of the action to
possible members of the class.” Acevedo, 600 F.3d at 519; accord
3

The framework set forth in Shushan v. University of Colorado, 132 F.R.D. 263
(D. Colo. 1990) treats the Section 216(b) “similarly situated” collective
action under Rule 23 of the Federal Rules of Civil Procedure class action
factors: numerosity, commonality, typicality, and adequacy of representation.
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995), overruled on
other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

11

Mooney, 54 F.3d at 1213-14. Courts usually base this decision
upon

“the

submitted.”

pleadings
Mooney,

and

54

any

F.3d

affidavits

at

1214.

which

Because

of

have
the

been

limited

evidence available at this stage, “this determination is made
using

a

fairly

‘conditional

lenient

standard,

certification’

of

a

and

typically

representative

results
class.”

in
Id.

(footnote omitted). Although the standard is lenient, “it is by
no means automatic.” Lima, 493 F. Supp. 2d at 798. Once the
court

conditionally

certifies

the

class,

class

counsel

may

provide notice to members of the putative class, who will then
have the opportunity to opt in. Mooney, 54 F.3d at 1214. The
case then proceeds through discovery as a representative action.
Id. The second stage occurs when and if the defendant files a
motion for decertification, “after discovery is largely complete
and more information on the case is available.” Acevedo, 600
F.3d at 519. The court then “makes a final determination of
whether all plaintiffs are sufficiently similarly situated to
proceed together in a single action.” Id.
DISCUSSION
A.

Are Plaintiffs and the Putative Class Members “Similarly
Situated”?
Neither

definition

the
of

FLSA

nor

“similarly

the

Fifth

situated.”

Circuit
Prejean

provides
v.

a

O’Brien’s

Response Mgmt., Inc., Nos. 12-1045, 12-1716, 12-1533, 2013 WL

12

5960674,

at

*4

(E.D.

La.

Nov.

6,

2013).

Rather,

the

issue

requires a fact-intensive, ad hoc analysis. Id. at *5; Kuperman
v. ICF Int’l, No. 08-565, 2008 WL 4809167, at *5 (E.D. La. Nov.
3, 2008). And, “[a]lthough the standard for satisfying the first
step [under Lusardi] is lenient . . . the court still requires
at least substantial allegations that the putative class members
were together the victims of a single decision, policy, or plan
infected by discrimination [or a violation of the FLSA].” H&R
Block,

Ltd.

v.

Housden,

186

F.R.D.

399,

400

(E.D.

Tex.

1999)(internal quotations and citations omitted)(citing Mooney,
54 F.3d at 1214 & n.8). Courts determining whether plaintiffs
have submitted substantial allegations of a single plan have
looked to “whether potential plaintiffs were identified . . .
whether affidavits of potential plaintiffs were submitted . . .
and whether evidence of a widespread discriminatory plan was
submitted.” Id. at 400. “At a minimum, there must be meaningful
identifiable facts or legal nexus [that] bind the claims, so
that hearing the cases together furthers the purposes of . . . §
216,

is

fair

to

both

parties,

and

does

not

result

in

an

unmanageable trial.” Prejean, 2013 WL 5960674, at *5 (internal
quotations

and

citations

omitted)(quoting

Falcon

v.

Starbucks

Corp., 580 F. Supp. 2d 528, 535 (S.D. Tex. 2008); Simmons v. TMobile USA, Inc., No. H-06-1820, 2007 WL 210008, at *8 (S.D.
Tex.

Jan.

24,

2007)).

However,

13

“[c]ourts

have

repeatedly

stressed

that

[p]laintiffs

identically—situated

to

must

proceed

only

be

collectively.”

similarly—not
Falcon,

580

F.

Supp. 2d at 534.
Here, each Plaintiff seeking conditional certification has
alleged

the

similarly
affidavits

existence

situated
in

of

a

common

employees.

support

of

policy

Further,

these

and

they

allegations.

a

have

class

of

provided

Plaintiff

Case

provides his own affidavit and that of two additional plaintiffs
who worked as Vessel Inspectors in support of his motion. Each
affidavit reveals that the affiant worked for Danos as a Vessel
Inspector,

witnessed

other

Vessel

Inspectors

performing

substantially the same duties as their own, received a day-rate,
regularly

worked

overtime,

and

was

refused

overtime

compensation. (Rec. Docs. 35-4, 35-5, 35-6) Specifically, Case
described his duties as follows:
As a “Vessel Inspector,” my duties included inspecting
the vessels used by contractors and sub-contractors
that were on the site in order to clean up the B.P.
oil spill. . . . Specifically, I observed the physical
condition of each vessel used by contracts and subcontractors that were on the site, and filled out
Danos standard nine (9) page safety checklist each day
with regard to each vessel. . . . Each day, for each
boat, I was required to complete the first two pages
of the safety inspection checklist in the morning,
before vessels began their duties on the clean-up
site, and to collect the other half of the safety
checklist in the evening, after vessels returned from
their duties on the clean-up site. I would then check
the vessels paperwork and complete the last page which
was an inspection for damage to the vessel and
questionnaire for the captain to make sure there were

14

no
reportable
incidents
during
the
day.
After
reviewing and completing I would sign off on the
entire packet. . . . Once I had completed the
forms/checklists, I was then required to scan into the
computer and saved onto a database.
(Rec. Doc. 35-4, pp. 2-3) The two additional affiants describe
substantially the same duties. See (Rec. Doc. 35-5, pp. 2-3;
Rec. Doc. 35-6, pp. 2-3).
Plaintiff Bragg likewise provides her own affidavit as well
as

that

of

six

additional

plaintiffs

who

worked

as

Safety

Technicians in support of her motion. As above, each affiant
states

that

they

worked

for

Danos

as

a

Safety

Technician,

witnessed other Safety Technicians performing substantially the
same duties as their own, received a salary, regularly worked
overtime, and were refused overtime compensation. (Rec. Docs.
36-4, 36-5, 36-6, 36-7, 36-8, 36-9, 36-10) Bragg further stated,
As a “Safety Tech,” my duties included babysitting the
various contractors and sub-contractors that were on
the site in order to clean up the B.P. oil spill. . .
. Specifically, I was responsible for observing other
contractors that B.P. had on site and ensuring that
they were complying with the multitude of safety
regulations and rules imposed by B.P. and various
governmental organizations for the type of work they
were doing.
(Rec.

Doc.

36-4,

p.

3)

The

six

additional

affiants

describe

substantially similar responsibilities. (Rec. Doc. 36-5, p. 3;
Rec. Doc. 36-6, p. 3; Rec. Doc. 36-7, p. 3; Rec. Doc. 36-8, p.
3; Rec. Doc. 36-9, p. 3; Rec. Doc. 36-10, p. 3)

15

Consequently,

contrary

to

Defendant’s

allegations,

the

Court concludes that Plaintiffs have shown that they have more
in common with their putative class members than merely their
exempt status and title. The claims of Plaintiffs certainly are
not purely personal and exhibit factual and legal nexuses with
those of the proposed classes. See Perez v. City of New Orleans,
No. 12-2280, 2014 WL 1365955, at *1-2 (E.D. La. Apr. 7, 2014).
Defendant’s

alleged

policy

of

refusing

Vessel

Inspectors

and

Safety Technicians overtime pay under the FLSA clearly would
have a general effect over all members of the purported class.
See

id.

at

*2.

Moreover,

the

affidavits

of

the

additional

plaintiffs assure the Court that a putative class exists for
each

case.

See

Prejean,

2013

WL

5960674,

at

*6.

The

Court

therefore finds that each Plaintiff has satisfied their burden
of

showing

that

they

are

“similarly

situated”

to

their

respective purported class.
B. Notice Content and Distribution
Defendant

challenges

Plaintiff’s

proposed

notice

in

the

following ways: (1) the applicable period; (2) the omission of
the fact that inclusion in the class is conditional upon a later
determination of the court that they are “similarly situated”;
(3) the length of the opt-in period; (4) the permissibility of a
reminder notice; (5) the failure to include fee arrangement; (6)
the

failure

to

inform

of

the

16

potential

obligation

for

Defendant’s

costs

provision;

(8)

addresses,

and

and

the

expenses;

production

partial

social

(7)

of

the

anti-retaliation

telephone

security

numbers,

numbers;

and

email

(9)

the

inclusion of irrelevant language related to minimum wage. (Rec.
Docs.

37,

38)

In

their

replies,

Plaintiffs

disagree

with

suggestions (1), (2), (3), (4), (6), (8). (Rec. Docs. 43, 45)
The Court interprets Plaintiffs’ silence as to suggestions (5),
(7),

and

(9)

appropriate,

as

a

concession

approves

those

and,

concluding

changes.

Thus,

that

the

they

notice

are
must

include an explanation of the fee arrangement, use Defendant’s
proposed

anti-retaliation

language,

and

omit

the

Buccaneers

cheerleaders’ minimum wage litigation language. The Court will
address each of the remaining suggestions in turn.
The parties disagree on the date from which the three-year
statute

of

limitations

ascertaining

the

should

putative

be

class

calculated
members

for

who

purposes

should

of

receive

notice. Defendant argues that the date of the notice should be
used because the opt-in plaintiffs’ claims would not relate back
to Plaintiffs’ complaints. Plaintiffs disagree and argue that
the date of the complaint should be used, because the timeliness
of the claims is properly challenged at a later date. “Courts
have

not

been

consistent

in

whether

the

time

period

runs

relative to the date of the complaint or relative to the date of
the

court’s

order

conditionally

17

certifying

the

matter

as

a

collective action.” Mejia v. Bros. Petroleum, LLC, No. 12-02842,
2014

WL

3530362,

at

*4

(E.D.

La.

July

16,

2014).

Authority

exists in this District for employing the date of the complaint,
see id., and the Court chooses to do the same. Notice should be
provided to Vessel Inspectors and Safety Technicians employed by
Defendant within a three-year window preceding the date of the
respective complaints.
Defendant argues that the notice should include language
clarifying that the continued participation of those who opt
into

Plaintiffs’

determining

actions

that

they

is

are

conditional
similarly

upon

the

situated.

Court

Plaintiffs

disagree and argue that any such additional language would be
confusing.
5)(citing

See

(Rec.

Gani

v.

Doc.

Guardian

43,

pp.

Serv.

4-5;

Indus.

Rec.

Doc.

Inc.,

No.

45,
10

p.
Civ.

4433(CM)(JCF), 2011 WL 167844, at *2 (S.D.N.Y. Jan. 13, 2011)).
The Court agrees with Plaintiffs and finds that the additional
language regarding the conditional nature of the certification
is both potentially confusing and unnecessary and should not be
included.
Defendant

requests

an

opt-in

period

of

forty-five

days

whereas Plaintiff seeks a ninety-day opt-in period. Defendant
argues that the shorter period is necessary to avoid delay and
because

no

Plaintiffs

unique
argue

circumstances

that

the

demand

ninety-day

18

a

period

longer
is

period.

necessary

to

honor

the

FLSA’s

remedial

goals

and

to

facilitate

notice

to

scattered plaintiffs who travel for work. See (Rec. Doc. 43, pp.
5-6; Rec. Doc. 45, pp. 5-6)(citing many district court opinions
authorizing ninety-day opt-in periods). The Court finds that a
ninety-day opt-in period is appropriate in this case. See Lima,
493 F. Supp. 2d at 804. As Plaintiffs have noted, this length
achieves the FLSA’s remedial goals and affords sufficient time
to putative class members to educate themselves about the suit
and submit their consent forms should they choose to do so,
without unduly burdening Defendant.
The parties disagree as to the permissibility of a reminder
notice.

Defendant

argues

that

a

reminder

inherently

would

constitute judicial encouragement to participate in the action.
Although

the

Court

does

not

necessarily

agree

with

that

argument, the Court finds that a reminder would be unnecessary
in this case because the opt-in period is only ninety days. See
Byard

v.

Verizon

West

Virginia,

Inc.,

287

F.R.D.

365,

373

(N.D.W. Va. 2012)(noting that a sixty-day opt-in period did not
warrant a reminder notice).
The

parties

further

dispute

whether

the

notice

should

notify putative class members of the possibility that they could
be liable for Defendant’s costs should Defendant prevail. Again,
there is authority to support both positions. Although the Court
understands the need to allow putative class members to make

19

informed decisions of whether to join the litigation, the Court
finds

such

language

to

be

unnecessary

given

the

“remote

possibility” that costs would be both awarded and other than de
minimis.

See

Guzman

v.

VLM,

Inc.,

No.

07-CV-1126,

2007

WL

2994278, at *8 (E.D.N.Y. Oct. 11, 2007). Additionally, “[its
inclusion]

may

have

an

in

terrorem

effect

that

is

disproportionate to the actual likelihood that costs . . . will
occur in any significant degree.” Id. Language regarding the
potential

liability

for

costs

need

objects

to

not

be

included

in

the

requests

for

notice.
Lastly,

Defendant

Plaintiffs’

putative class members’ telephone numbers, email addresses, and
partial

social

telephone

security

numbers

numbers.

and

email

but

they

effectuate

notice,

arguments

regarding

Plaintiffs

addresses
do

partial

not
social

are

maintain
necessary

challenge

that
to

Defendant’s

security

numbers.

Accordingly, the Court denies Plaintiffs’ requests for partial
social security numbers unless or until Plaintiffs demonstrate
an actual need for them. See Byard, 287 F.R.D. at 376-77. As for
the telephone numbers and email addresses, however, the Court
agrees

with

Plaintiffs

that

they

should

have

access

to

this

information in order to effect notice. See, e.g., Mejia, 2014 WL
3530362, at *4.
Accordingly,

20

IT

IS

HEREBY

ORDERED

that

the

Motions

for

Conditional

Certification and for Order Permitting Court-Supervised Notice
(Rec. Docs. 35, 36) are GRANTED.
IT
class

IS
in

FURTHER
Civil

ORDERED

Action

No.

that

the

14-2775

conditionally-certified
shall

be

defined

as:

“Individuals who were day-rate paid Vessel Inspector employees
at any time during the three years preceding December 8, 2014,
and who were subjected to Defendant’s practice of failing to pay
full and proper time and one half overtime compensation for all
hours worked in excess of forty (40) in a workweek.”
IT
class

IS
in

FURTHER
Civil

ORDERED

Action

No.

that

the

14-2976

conditionally-certified
shall

be

defined

as:

“Individuals who were salaried Safety Technician employees at
any time during the three years preceding December 30, 2014, and
who were subjected to Defendant’s practice of failing to pay
full and proper time and one half overtime compensation for all
hours worked in excess of forty (40) in a workweek.”
IT IS FURTHER ORDERED that Defendant shall have fourteen
(14) days from the date of this Order, or through and including
May 18, 2015, to produce the full names, last known addresses,
telephone numbers, and email addresses of all potential class
members,

in

both

paper

and

electronic

Microsoft Office Suite.

21

form

accessible

by

IT IS FURTHER ORDERED that the proposed Notices (Rec. Doc.
35–2; Rec. Doc. 36-2) and the proposed Consent Forms (Rec. Doc.
35–3; Rec. Doc. 36-3) are hereby APPROVED, subject to the abovementioned edits.
IT IS FURTHER ORDERED that counsel for the class shall have
thirty (30) days from the date of this Order, or through and
including June 3, 2015, to transmit the Notice and Consent form
to all potential class members via U.S. mail and email, both
work and personal (if available).
IT IS FURTHER ORDERED that potential class members may opt
in to this collective action if: (1) they have mailed, faxed, or
emailed

their

Consent

form

to

counsel

for

the

class

within

ninety (90) days after the Notice and Consent forms have been
mailed out to the class; or (2) they show good cause for any
delay.
New Orleans, Louisiana this 4th day of May, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

22