Richard et al v. Flowers Foods, Inc. et al

Filing 136

ORDER ON CONDITIONAL CERTIFICATION.... granting 105 Motion to Certify Class. Signed by Magistrate Judge Carol B Whitehurst on 11/28/16. (crt,Jordan, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Antoine Richard, et al.

Civil Action No. 6:15-cv-2557

versus

Judge S. Maurice Hicks, Jr.

Flower Foods, Inc., et al..

Magistrate Judge Carol B. Whitehurst

ORDER ON CONDITIONAL CERTIFICATION
Before the Court are the following: (1) a Motion for Conditional Class
Certification pursuant to 29 U.S.C. § 216(b), filed by Plaintiffs Antoine Richard,
Darrell Richard, Chris Meche, Derby Doucet, Sr., Kevin Rabeaux, and Mark
Louviere, on behalf of themselves and all others similarly situated, (Doc. 105); (2)
Memorandum in Opposition, filed by Defendants Flower Foods, Inc. (“Flower
Foods”), Flowers Baking Company of Lafayette, LLC (“FBC-Lafayette”), Flowers
Baking Company of Baton Rouge, LLC (“FBC-Baton Rouge”), and Flowers
Baking Company of Tyler, LLC (“FBC-Tyler”) (collectively “Defendants”)1 (Doc.
118); (3) Plaintiffs’ Reply (Doc. 127); and (4) Defendants’ Sur-Reply (Doc. 135).
For the following reasons, Plaintiffs’ Motion for Conditional Class Certification
(Doc. 105) will be granted.

1

Defendant Flowers Baking Company of Alexandria, LLC (“FBC-Alexandria”)
joined in the Memorandum in Opposition. The court, however, recently dismissed
without prejudice Plaintiff’s claims against both FBC-Alexandria and Defendant Flowers
Baking Company of New Orleans for lack of subject matter jurisdiction. (Doc. 133)

I. Background
This is a collective action for violation of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq (“FLSA), and the Louisiana Wage Payment Act. La. R.S. §
23:631 (“Wage Act”). Flowers Foods manufactures, sells, and distributes bakery
and snack food products to retail customers. (Doc. 5 at ¶ 32.) Plaintiffs assert that
they entered into Distributor Agreements with Flowers Foods’ subsidiary
bakeries—including FBC-Lafayette, FBC-Baton Rouge, and FBC-Tyler—to serve
as distributors of the various baked goods and related products. (Doc. 5 at ¶¶ 1,
17.)
Plaintiffs consist of six-named distributors that deliver Defendants’ bakery
products from Defendants’ local warehouses to their local retailers of bakery and
bread products at the time and place specified by Defendants. (Doc. 5 at §§ 5-10,
34). These Plaintiffs have been joined in this action so far by numerous other
former and current distributors. Plaintiffs state they were improperly classified as
independent contractors and seek to assert their claims on behalf of:
all individuals who, through a contract with Defendants or otherwise,
distribute or distributed for Defendants under agreements with [the
subsidiary bakeries] or any other affiliates or subsidiaries of Flowers
Foods, Inc. which employ distributors working within the State of
Louisiana; and who were classified by Defendants as “independent
contractors” . . . anywhere at any time in the United States from the
date that is three years preceding the commencement of this action
2

through the close of the Court-determined opt-in period and who file a
consent to join this action pursuant to 29 U.S.C. § 216(b).
(Doc. 5 at ¶¶ 1,17.) Thus, this collective action is limited to distributors in
Louisiana and seeks compensation and a declaration that the employees are entitled
to protections of the FLSA and the Wage Act. (Doc. 5 at ¶¶ 57, 66, 73, Prayer for
Relief.)
II. Motion for Conditional Class Certification
Plaintiffs move to conditionally certify a collective action under 29 U.S.C. §
216(b) of the FLSA, (Doc. 105.) Plaintiffs assert that they can show that the class
of people working for Defendants as distributors is similar-situated. (Doc. 105-1 at
p. 17.) Specifically, Plaintiffs assert that their “allegations along with the
supporting evidence are sufficient to show that all Distributors working for
Defendants were subject to a common illegal pay policy – Defendants misclassify
them as independent contractors, control virtually all aspects of their work, but did
not (and do not) pay them the premium overtime wages they are due.” (Doc. 105 at
p. 18.)
As part of their motion, Plaintiffs ask that judicially-approved notice be
mailed to all Putative Class Members.

(Doc. 105-1 at p. 20.).

If granted

conditional certification, they ask the Court to order the Defendants to provide

3

them with certain contact information relating to past and current distributors in
order to facilitate notice of this class action. (Doc. 105-1 at pp. 20-21.) In addition
to seeking a 90-day notice period for collective action members to join, Plaintiffs
also seek Court approval “to send Reminder Notices to an any collective-action
members who have not responded 45 days and 75 days after the mailing of initial
notice. (Doc. 105-1 at p. 21.) Lastly, Plaintiffs “request that the court order
Defendants to post the same notification . . . at all of Defendants’ warehouses in the
same areas in which they are required to post FLSA notices.” (Doc. 105-1 at p.
21.)
Defendants deny Plaintiffs’ allegations and oppose collective action
certification under 29 U.S.C. § 216(b). (Doc. 118.) Their primary position is that
the plaintiffs are not “similarly situated” for purposes of maintaining a collective
action. (Doc. 118 at pp. 7-8.) Even if the court were inclined to grant conditional
certification, Defendants contend that such certification must be limited to the
seven warehouses from which the named and opt-in Plaintiffs operated. (Doc. 118
at p. 30-34.)
Defendants further urge the Court to “require the parties to meet and confer
regarding the terms of the notice.” (Doc. 118 at p. 34.) They cite three nonexhaustive defects in Plaintiffs’ Proposed Notice. First, because the proposed 904

day notice period is too long, Defendants ask the Court to approve a shorter 45-day
notice period. (Doc. 118 at p. 34.) Second, Defendants argue that the reminder
notices sought by Plaintiffs are not justified.

(Doc. 118 at p. 35.)

Lastly,

Defendants contend that it would be inappropriate to require posting of the notice
on the workplace as no evidence has been presented to show that mailing the notice
alone is insufficient. (Doc. 118 at pp. 35-36.)
In reply, Plaintiffs reiterate that they have provided substantial allegations
that the putative class members were the victims of a single decision, policy, or
plan. (Doc. 127 at p. 5-14.) According to Plaintiffs, individualized inquiries are
not necessary at this stage in the proceedings and potential affirmative defenses are
inappropriately raised at this time to defeat conditional certification. (Doc. 127 at
p. 16-18.) They further urge that the evidence submitted warrants a state-wide
class certification. (Doc. 127 at p. 14-16.) Lastly, Plaintiffs contend that it is
unnecessary to direct the parties to meet and confer regarding the contents of the
notice. (Doc. 127 at p. 18.) Plaintiffs concede that a 60-day notice period is
sufficient but maintain that reminder postcards and posted notices in the
warehouses are appropriate in this case. (Doc. 127 at pp. 18-19.)

5

III. Discussion
A.

Legal Standard
The Fair Labor Standards Act (“FLSA”) sets a general minimum wage for

employees engaged in commerce. 29 U.S.C. § 206(a)(1). Section 207(a) requires
covered employers to compensate nonexempt employees at overtime rates for time
worked in excess of statutorily defined maximum hours. 29 U.S.C. § 207(a).
Section 216(b) creates a cause of action for employees against employers violating
the overtime compensation requirements. 29 U.S.C. § 216(b).

This section

provides:
An action . . . may be maintained . . . by any one or more employees
for and in behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such a party
and such consent is filed in the court in which such action is brought.
Id.
The FLSA affords workers the right to sue collectively on behalf of
themselves and others “similarly situated” for violations of the Act's minimum
wage provisions and overtime protections. 29 U.S.C. § 216(b). “Unlike class
actions governed by Rule 23 of the Federal Rules of Civil Procedure, in which
potential class members may choose to opt out of the action, FLSA collective
actions require potential class members to notify the court of their desire to opt-in
6

to the action.” In re Katrina Canal Breaches Consolidated Litigation, 2009 WL
1649501, at *5 (E.D. La. 2009). Courts are provided with discretionary power to
implement the collective action procedure through the sending of notice to
potential plaintiffs. Lentz v. Spanky's Restaurant II, Inc., 491 F. Supp. 2d 663, 667
(N.D. Tex. 2007) (citing Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169
(1989)). Notice must be “timely, accurate and informative.” Hoffmann–La Roche,
493 U.S. at 172.
Courts recognize two methods to determine when making the “similarly
situated” inquiry and determining whether notice should be given. These methods
are the two-step Lusardi approach and the class-action based Shushan approach.
See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D. N.J. 1987); Shushan v. Univ. of
Colo. at Boulder, 132 F.R.D. 263 (D. Colo. 1990). In Mooney v. Aramco Services
Co., 54 F.3d 1207, 1216 (5th Cir.1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Fifth Circuit found it unnecessary to
determine which method is most appropriate. Id. The prevailing method, however,
seems to be the “two-step” approach. See, e.g., Lang v. DirecTV, Inc., 735 F. Supp.
2d 421, 435 (E.D. La. 2010); Lachapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288
(5th Cir.1975) (finding a “fundamental” difference between Rule 23 class actions
and FLSA collective actions). Based on the foregoing, the undersigned finds that
7

the “two-step” method is the preferred method in the Fifth Circuit for the analysis
and will be used by this Court.
The Fifth Circuit described the “two stage” Lusardi approach in detail:
The first determination is made at the so-called “notice stage.” At the
notice stage, the district court makes a decision-usually based only on
the pleading and any affidavits which have been submitted whether
notice of the action should be given to potential class members.
Because the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in “conditional
certification” of a representative class. If the district court
“conditionally certifies” the class, putative class members are given
notice and the opportunity to “opt-in.” The action proceeds as a
representative action throughout discovery.
The second determination is typically precipitated by a motion for
“decertification” by the defendant usually filed after discovery is
largely complete and the matter is ready for trial. At this stage, the
court has much more information on which to base its decision, and
makes a factual determination on the similarly situated question. If
the claimants are similarly situated, the district court allows the
representative action to proceed to trial. If the claimants are not
similarly situated, the district court decertifies the class, and the opt in
plaintiffs are dismissed without prejudice.
The class
representatives—i.e. the original plaintiffs—proceed to trial on their
individual claims . . . .
Mooney, 54 F.3d at 1213–14.
As this case is presently at the “notice stage,” the Court must make a
decision whether conditional certification should be granted and whether notice of
the action and right to opt-in should be given to potential class members. “At the
8

notice stage, the plaintiff bears the burden of making a preliminary factual showing
that at least a few similarly situated individuals exist. The plaintiff may satisfy his
or her burden through submission of evidence in the form of pleadings, affidavits
and other supporting documentation.”

Lima v. International Catastrophe

Solutions, Inc., 493 F. Supp. 2d 793, 798 (E.D. La. 2007).
“At the notice stage, ‘courts appear to require nothing more than substantial
allegations that the putative class members were together the victims of a single
decision, policy, or plan infected by discrimination.’” Mooney, 54 F.3d at 1214 n.
8. “‘Because the court has minimal evidence, this determination is made using a
fairly lenient standard, and typically results in conditional certification of a
representative class’ where potential class members receive notice and the
opportunity to opt-in.” Melson v. Directech Southwest, Inc., 2008 WL 2598988, at
*3 (E.D. La. 2008) (quoting Mooney, 54 F.3d at 1214). The lenient standard
requires only substantial allegations that potential members “were together the
victims of a single decision, policy, or plan . . . .” Mooney at 1214 n. 8.
B.

Analysis
1.

Conditional Class Certification

To support their assertion that conditional class certification is appropriate,
Plaintiffs allege that each distributor has entered into a Distributor Agreement with
9

Flowers Foods, which sets forth the terms of the relationship, has no specific end
date, and can be terminated by either party at any time with limited notice. (Doc. 5
at ¶ 35). Several Plaintiffs describe the initial working relationship under the
Distributor Agreement as follows:
At the time I became a Distributor for Flowers, I purchased from
Flowers the right to sell and distribute certain product brands to
Flowers customers within a specific geographic territory defined by
Flowers. For my services, Flowers pays me a percentage of the
amount of bakery products Flowers customers purchase within my
specific geographic area. Flowers pays a portion of my social security
tax and medicare tax. I have been issued a W-2 form each year I have
been employed by Flowers. My primary job is to deliver Flowers’
products to Flowers’s customers. As a Distributor, I am required to
pay all costs associated with the delivery of the bakery products to
customers, including delivery vehicles, gas and some equipment.
(See Doc. 105-3 at pp. 338-39, 342-43, 346-47, 350-51, 354-55).
Plaintiffs further allege that distributors work for Defendants pursuant to
substantially similar Distributor Agreements that outline certain compensation and
job performance expectations. (See Doc. 105-2 at pp. 10-220.) Pursuant to these
agreements, Distributors purchase from Defendants the right to sell and distribute
certain product brands within a specific geographic territory as defined by
Defendants. (Doc. 105-2 at pp. 11, 27.)
The Distribution Agreements generally provide Defendants the ability to
negotiate directly with its retail customers, set pricing terms, and control essentially
10

all facets of the customer relationship. (Doc. 5 at ¶ 36.) As distributors, Plaintiffs
“must strictly follow Defendants’ instructions and adhere to the pricing, policies,
and procedures negotiated between Defendants and their retail customers.” (Doc.
5 at ¶ 40.) According to Plaintiffs, the distributor’s “job duties and ability to
control to earn income is tied directly to the sale and promotion of products outside
of their control.” (Doc. 5 at ¶ 38.) Plaintiffs have submitted a document entitled
“Distributor Checklist,” which all distributors must sign, indicating that distributors
perform their job duties in a uniform fashion. (Doc. 127-1 at pp. 20-21.)
Plaintiffs state in their affidavits that they all worked in excess of 40 hours
per week in order to fulfill their job duties, which includes (1) arriving at Flowers
Foods warehouses early in the morning to load the delivery vehicles with products;
(2) driving to Flowers Foods’ various customers in order to stock the customer’s
shelves with product; (3) working seven days a week; (4) restocking and
organizing shelves; and (5) performing call backs for the purpose of delivering
fresh products to stores. (Doc. 5 at ¶¶ 5-10, 55; Doc. 105-3 at pp. 339, 343, 347,
351, 355, 359, 363, 367, 371, 375, 379, 383, 387.) Each Plaintiff explains that:
I am required to use Flowers’ hand held computer and utilize Flowers’
computer system which Flowers provides to me. The hand held
computer system tells me the price I must charge for the products, the
quantity to deliver, whether I have made all of my required stops,
historical sales and similar information. Flowers monitors my
11

activities by using the hand held computer system. All of this
information is maintained in a central computer system controlled by
Flowers. I also use the hand held system to place orders and products
from Flowers. Flowers reserves the right to change the orders I place
without my consent and Flowers has historically made changes to my
orders without my consent. I pay an administrative fee and warehouse
fee to Flowers which is deducted from my weekly settlement checks.
(Id.)

Despite working overtime, none of the distributors received overtime

premium wages. (Id.)
Defendants oppose the motion for conditional class certification, contending
that: (1) Plaintiffs’ allegations are based solely on conclusory allegations that lack
personal knowledge; (2) no common proof exists that the Plaintiffs are
“employees” as a matter of “economic reality” under the FLSA; (3) Plaintiffs’
evidence is insufficient and contradicted by their own deposition testimonies; (4)
Plaintiffs openly admit in their depositions that they have no personal knowledge
of how distributors operate in other warehouses or even in their own warehouses;
(5) the common classification of each distributor as an “independent contractor” is
insufficient to constitute a “common plan” that justifies conditional certification;
(6) numerous individualized determinations are required for each Plaintiff to opt in;
and (7) individualized inquiries necessary to adjudicate multiple defenses preclude
conditional certification. (Doc. 118 at pp. 17-30.) As discussed below, none of the

12

contentions advanced by Defendants persuades the undersigned to deny conditional
class certification.
At the outset, the Court recognizes that Plaintiffs have submitted affidavits
containing similar language regarding the nature of their duties and relationship
with defendants under the distributor agreements. “However, simply because a
declaration employs boilerplate language does not mean that the statements do not
reflect personal knowledge.” Lang v. DirecTV, Inc., No. 10-1085, 2011 WL
6934607, at *9 (E.D. La. 2011). “There is no rule that requires plaintiffs to
compose affidavits in their own words, without the assistance of counsel, and
common declarations may be reasonable where there is great similarity.” Id.
(internal quotations and citation omitted). Each of the affidavits submitted by
Plaintiffs is based on personal knowledge and presents allegations indicating that
all distributors were subjected to a common decision, policy, or plan – their misclassification as independent contractors.
Defendants vigorously contend, however, that individualized factual and
legal inquiries are required to adjudicate Plaintiffs’ claims, which is inconsistent
with collective class treatment. (Doc. 118 at pp. 25-26.) Defendants further argue
that Plaintiffs’ evidence regarding a common policy or plan is contradicted by the
deposition testimony of several putative class Plaintiffs. Defendants cite testimony
13

in these depositions as: (1) contradicting statements proffered in Plaintiffs’
affidavits; (2) establishing that Plaintiffs operate their distributorships in materially
different ways; and (3) showing Plaintiffs’ lack of personal knowledge as to the
practices at other warehouses. (Doc. 118 at pp. 7, 12-17, 22-25).
In arguing that highly individualized inquiries are necessary to adjudicate
Plaintiffs’ FLSA claims, Defendants ask the Court utilize the “economics reality
test.” (Doc. 118 at pp. 119-21.) Pursuant to FLSA, overtime protections only
apply to employees. To determine whether a plaintiff designated as an independent
contractor may be deemed an FLSA employee, courts inquire into the “economic
realities” between plaintiffs and defendants. Thibault v. Bellsouth Telecomm., Inc.,
612 F.3d 843, 845 (5th Cir. 2010).

A non-exhaustive list of five factors is

considered when examining the economic realities of this relationship: (1) the
permanency of the relationship; (2) the degree of control exercised by the alleged
employer; (3) the skill and initiative required to perform the job; (4) the extent of
relative investments of the worker and the alleged employer; and (5) the degree to
which the worker's opportunity for profit and loss is determined by the alleged
employer.” Id. at 846.
Courts are split as to whether the “economic realities test” may be utilized to
determine whether to conditionally certify an FLSA class involving improper
14

independent contractor designation. Prejean v. O’Brien’s Response Management,
Inc., Nos. 12-1045, 12-1716, 12-1533, 2013 WL 5960674, at *7 (E.D. La. Nov. 6,
2013). Some courts have held that the “economic realities test” only is appropriate
at the decertification stage.

See, e.g. Gonzalez v. Tier One Sec., Inc., No.

SA–12–CV–806–XR, 2013 WL 1455587, at *2 (W.D.Tex. Apr.8, 2013)
(“Defendants' argument that their classification of the [plaintiffs] as independent
contractors (and not employees) wholly dictates that conditional certification is
inappropriate

is

without

merit.”);

Jones

v.

JGC

Dallas

LLC,

No.

3:11–CV–2743–O, 2012 WL 6928101, at *4 (N.D.Tex. Nov. 29, 2012)
(“Defendants argue that this case is not appropriate for adjudication as a collective
action because Plaintiffs cannot demonstrate the requisite employer/employee
relationship. This is a merits-based argument, and courts are not to engage in
merits-based analysis at the notice stage of a collective action.”); Walker v.
Honghua America, LLC, 870 F. Supp. 2d 462, 471 (S.D. Tex. May 7, 2012) (“The
Court believes that the economic factors test is likely not appropriate for
determination at the first stage of FLSA class certification.”).
Other district courts have held that the “economic realities test” should be
utilized to assess whether class members are similar enough to warrant conditional
class certification. See, e.g., Christianson v. NewPark Drilling Fluids, LLC, No.
15

CIV.A. H–14–3235, 2015 WL 1268259, at *4 (S.D. Tex. Mar.19, 2015) (holding
that conditional certification requires members of the putative class to be “similarly
situated for purposes of applying the economic realities test at the appropriate
phase of [the] case in the future”); Andel v. Patterson–UTI Drilling Co., LLC, 280
F.R.D. 287, 289 (S.D. Tex. 2012) (holding that “a court ‘must analyze whether the
[putative collective action members] are similarly situated with respect to the
analysis it would engage in to determine whether the workers are employees or
independent contractors.’”).
In this case, Defendants have submitted evidence raising questions about
whether the putative class plaintiffs may ultimately be deemed independent
contractors as opposed to employees for FLSA purposes. The undersigned agrees,
however, with those courts that find such inquiry as to the true employment status
of Plaintiffs should be addressed at the decertification stage after discovery has
occurred. The issues raised by Defendants essentially go to the merits of this case,
which this Court is not faced with resolving at this time.2 McKnight v. D. Houston,

The Court further notes that it is not required to consider the deposition
testimony cited by Defendants in connection with the motion for conditional class
certification. White v. Integrated Electronic Section Technologies, Inc., Nos. 112186, 12-359, 2013 WL 2903070, at *6 (E.D. La. June 13, 2013). See also
Mooney, 54 F.3d at 1213-14 (explaining that, at the notice stage under Lusardi, a
court’s determination of whether notice should be given is usually made on the
basis of “only . . . the pleadings and affidavits which have been submitted”).
2

16

Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010) (explaining that the conditional
class certification stage is not “an opportunity for the court to assess the merits of
the claim by deciding factual disputes or making credibility determinations”).
Defendants further contend that individualized inquiries are necessary at this
stage in the proceedings to adjudicate multiple defenses, which precludes
conditional class certification. (Doc. 118 at p. 29.) Defendants specifically
reference (1) the Motor Carrier Act exemption; (2) the outside sales exemption; and
(3) the fact that some distributors have signed arbitration agreements precluding
their ability to opt into the class. (Doc. 118 at pp. 29-30.) Whether any or all of
the putative plaintiffs are subject to one of more of the exemptions cited by
Defendants, however, cannot be determined on the limited record before the Court
prior to discovery. See Jirak v. Abbott Laboratories, Inc., 566 F. Supp. 2d 845, 850
(N.D. Ill. 2008).

The Court, therefore, finds that Defendants’ affirmatively

defenses are more properly adjudicated after discovery.
The issue before the Court is whether Plaintiffs have satisfied the standard
necessary for notice to be provided to all putative class members under Lusardi.
Plaintiffs have satisfied this lenient standard by presenting substantial allegations,
as supported by affidavits and other evidence, showing that the distributors are
subject to similar job requirements, similar pay provisions, and the Defendants’
17

ability to control many of their daily job functions. See Prejean, 2013 WL
5960674, at *5 (quoting Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 534 (S.D.
Tex. 2008)) (“Courts have repeatedly stressed that Plaintiffs must only be
similarly—not identically—situated to proceed collectively.”)

Based on the

substantial allegations and evidence offered, Plaintiffs have established at the
notice stage that they and other potential members were victims of a single
employment policy or plan and, thus, share an employment status for FLSA
purposes.
2.

Scope of the Class Action

Upon finding that conditional class certification is appropriate, the Court
turns to Defendants’ request to limit notice to only a few of the warehouses
operating in FBC-Tyler and FBC-Baton Rouge.3

(Doc. 118 at pp. 24-28.)

Defendants have presented evidence detailing that FBC-Baton Rouge has fifteen
different warehouses in Louisiana and that FBC-Tyler has four different
warehouses. (Doc. 118-2 at p. 3; Doc. 118-3 at pp. 2-3.) According to Defendants,
however, notice of the class action should be limited only to those seven

3

Distributors who originally contracted with FBC-Lafayette had their territories
transferred to FBC-Baton Rouge in June of 2013. (Doc. 118-2 at p. 2.)

warehouses in FBC-Tyler and FBC-Baton from which the six-named Plaintiffs and
numerous other opt-in plaintiffs operated. (Doc. 118 at p. 30.)4
A district court has the power to modify the parameters of an FLSA class
action on its own. West v. Lowes Home Centers, Inc., No. 6:09-1310, 2010 WL
5582941, at *7 (W.D. La. Dec. 16, 2010). See Baldridge v. SBC Commc’ns, Inc.,
404 F.3d 930, 931-32 (5th Cir. 2005) (noting the court’s power to “limit the scope”
of a proposed FLSA collective action). Defendants cite several cases that have
limited conditional class certification where the evidence does not support such
certification to a broad class. See West, 2010 WL 5582941 at *7 (recognizing that
“the collective action should be limited to [external manager training program]
candidates only, reserving the plaintiffs’ right to request re-certification with
respect to internal managers in training after additional discovery”); Vanzzini v.
Action Meat Distributors, Inc., No. H-11-4173, 2012 WL 1941763, at *3 (S.D.
Tex. May 29, 2012 (concluding that the plaintiff had satisfied his burden for
conditional class certification with respect only to those hourly workers who were
classified as contract workers and were not, therefore, on the payroll); Luvianos v.
Gratis Cellular, Inc., No. H-12-1067, 2012 WL 6737498, at 9 (S.D. Tex. Dec. 10,

4

Defendants identify the seven warehouses from FBC-Baton Rouge and FBC-Tyler as
follows: Acadiana, Birdson, Eunice, Lake Charles, Sulphur, Ruston, and West Monroe.
19

2012) (limiting conditional class certification only to potential class members who
were treated similarly at locations in Texas and Maryland as their was no evidence
provided of any similarly situated employees in Oklahoma); Ross v. S.W. Louisiana
Hosp. Ass’n, No. 2:12-CV-1250, 2013 WL 1818331, at *3 (W.D. La. Apr. 29,
2013) (granting motion to certify collective action but only to the limited extent
that the plaintiffs sought certification of employees at the company’s Cincinnati
office, and not the other office locations).
The cases cited by Defendants are distinguishable from the instant action as
they do not pertain to independent contractors who are working pursuant to similar
distributor agreements and seeking class treatment as employees. Defendants then
proceed to cite a case similar to this one involving a Flowers Foods’ subsidiary in
Tennessee, Stewart v. Flowers Foods, Inc., No. 15-cv-1162, 2016 WL 5122041
(W.D. Tenn. Aug. 12, 2016). In Stewart, the plaintiffs filed an FLSA case and
sought national certification of a distributor class. Id. at *4. The Tennessee district
court rejected conditional class certification on a nationwide basis, finding that
certification should be limited to the four warehouses from which the plaintiffs
presented evidence. Id.
While the plaintiff in Stewart requested national certification of a distributor
class, Plaintiffs in this action seek, at most, state-wide conditional class
20

certification.

Plaintiffs have presented sufficient evidence to support class

certification that goes beyond the seven warehouses urged by Defendants. Given
the likelihood that all distributors working within every warehouse in FBC-Baton
Rouge and FBC-Tyler operated under the same or similar distributor agreement, it
is highly conceivable that each distributor was subject to a single employment plan
or policy. See West, 2010 WL 5582941, at *7-9 (concluding that state-wide class
conditional certification was appropriate because, based on evidence that the
alleged practice or policy was occurring at certain stores, “it is not inconceivable
that such a policy or practice was occurring at other Louisiana stores, evidence of
which has yet to be discovered”). Accordingly, upon evidence before the Court
and pursuant to the lenient standard applicable at the notice stage, the undersigned
concludes that conditional class certification is appropriate with regard to any
distributor working either for any of the fifteen warehouses associated with FBCBaton Rouge or the four warehouses associated with FBC-Tyler.
3.

Proposed Notice

Plaintiffs seek judicial approval of their Proposed Notice, which is to be sent
to all putative class members. (Doc. 105-2 at pp. 2-6). They first ask the court “to
order the Defendants to produce the following within (10) days of its Order: an
updated computer readable data file containing information necessary to facilitate
21

notice, including the name, last known mailing address, last known telephone
number, email address, employment dates as a distributor, date of birth and the last
four digits of the social security numbers of each current and former distributors of
the Defendants who have worked as a distributor during the three years prior to
October 21, 2015.” (Doc. 105-1 at pp. 20-21.) Defendants do not oppose this
request, and the Court agrees with Plaintiffs that they should have access to this
information in order to effect notice. See Mejia v. Brothers Petroleum, LLC, No.
12-02842, 2014 WL 3530362, at *4 (E.D. La. July 16, 2014); Case v. Danos &
Curole Marine Contractors, L.L.C., No. 14-2775, 2015 WL 1978653, at *7 (E.D.
La. May 4, 2015).
Plaintiffs seek a 90-day notice period for collective action members to join
the class action. (Doc. 105-1 at p. 25.) Defendants contend that such a 90-day
period is too long and instead ask the Court to approve a 45-day notice period.
(Doc. 118 at p. 34.) Plaintiffs concede in their reply that a 60-day notice period
would be sufficient. (Doc. 127 at p. 18.) The Court finds that an opt-in period of
sixty (60) days is appropriate in this case. See Coyle v. Flowers Food, Inc. No.
CV-15-1372, 2016 WL 4529872, at *7 (D. Ariz. Aug. 30, 2016) (concluding in a
similar FLSA action against Flowers Foods that “[a] 60 day opt-in period is
sufficient and will ensure efficient resolution of this action”).
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Plaintiffs next seek Court approval to: (1) provide two Reminder Notices to
any collective-action members within the opt-in period; and (2) post the Notice
mailed to potential class members at all of Defendants’ warehouses in the same
areas they are required to post FLSA notices. (Doc. 105-1 at p. 21.) While
reminder notices are unnecessary, the Court concludes that the posting of Notices
at each warehouse of FBC-Baton Rouge and FBC-Tyler is an efficient, cost
effective method to notify potential opt-in distributors of this class action and
would not be burdensome on Defendants. See Roberts v. S. B. Southern Welding,
LLC, No. 3:14-CV-3617-B, 2015 WL 8773610, at *3 (N.D. Tex. Dec. 15, 2015)
(sustaining objection to allowing reminder notices because they would be
unnecessary and potentially be interpreted as encouragement by the court to opt
into the lawsuit); Coyle, 2016 WL 4529872, at *7 (“Posting Notices at the
warehouses is a cost-efficient way to notify potential opt-in plaintiffs of the action
and places no burden on Defendants”).
Lastly, the Court considers Defendants request “to meet and confer regarding
the terms of the notice.” (Doc. 118 at p. 34.) Plaintiffs contend that their Proposed
Notice should be approved by the Court as Defendants have made no substantive
challenges to the content of the Proposed Notice. Indeed, Defendants have not
enumerated any substantive challenges to the Proposed Notice, and it is, therefore,
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unnecessary for the Court to compel the parties to meet and confer about same. As
instructed below, however, the Court will require Plaintiffs to submit a revised
copy of the Proposed Notice for final court review.
IV. Conclusion
For the foregoing reasons,
IT IS ORDERED that Plaintiffs’ Motion for Conditional Class Certification
(Doc. 105), including Court-approved notice to be issued to potential class
participants, is GRANTED as set forth in this Order. The above-captioned matter
is conditionally certified as a collective action pursuant to 29 U.S .C. § 216(b).
Conditional class certification is proper with regard to any distributor working
either for any of the fifteen warehouses associated with FBC-Baton Rouge or the
four warehouses associated with FBC-Tyler.5
IT IS FURTHER ORDERED that Defendant shall have TEN (10) days from
the entry of this Court's Order, or through and including December 8, 2016, to
provide Plaintiffs with an updated computer readable data file containing
information necessary to facilitate notice, including the name, last known mailing
address, last known telephone number, email address, employment dates as a

5

Because distributors who originally contracted with FBC-Lafayette had their territories
transferred to FBC-Baton Rouge in June of 2013, it is unnecessary to include any warehouses
that were associated with FBC-Lafayette.
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distributor, date of birth and the last four digits of the social security numbers of
each current and former distributors of the Defendants who have worked as a
distributor during the three years prior to October 21, 2015.
IT IS FURTHER ORDERED that, no later than TEN (10) days from the
entry of this Court's Order, or through and including December 8, 2016, Plaintiffs
shall submit a revised copy of the Proposed Notice for final Court review. The
revised Proposed Notice should clarify and otherwise state: (1) the Defendants
remaining in this action are Flowers Foods, FBC-Lafayette, FBC-Baton Rouge, and
FBC-Tyler; and (2) the revised number of distributors who have opted-in to this
lawsuit as of the date of this Order.
IT IS FURTHER ORDERED that, once the revised Proposed Notice is
approved, Plaintiffs are AUTHORIZED to: (1) disseminate the approved Notice to
prospective class members via first class mail and email; (2) post the Notice to
prospective class members at each of the warehouses associated with FBC-Baton
Rouge and FBC-Tyler in the same areas they are required to post FLSA notices.
IT IS FURTHER ORDERED that prospective 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 sixty (60) days after the Notice and consent forms

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have been mailed out to the class and otherwise posted at each appropriate
warehouse; or (2) they show good cause for any delay.
THUS DONE AND SIGNED in Lafayette, Louisiana, this 28th day of
November, 2016.

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